8 Colo. Code Regs. § 1502-1-7

Current through Register Vol. 48, No. 1, January 10, 2025

Rule 8 CCR 1502-1-7 - DISABILITY BENEFITS

For the purposes of Rule 7, and subject to Rule 7.90 , the term "member" shall include DPS members and the term "retiree" shall include DPS retirees.

7.10Disability Application

A. The disability application, using the prescribed form, is to be submitted to the Association.

B. An applicant may cancel the application prior to the first payment, but the request to cancel must be submitted to the Association in writing.

C. An applicant may qualify for short-term disability, disability retirement, or neither. The same applicant shall not be paid both short-term disability and disability retirement for the same day.

7.12Determination and Appeal

A. The Association shall determine eligibility to apply for disability benefits as defined in 24-51-701(1) and (3), C.R.S., salary as defined in 24-51-101(42), C.R.S., service credit as defined in 24-51-101(43), C.R.S., the amount payable as disability retirement benefits, the provisions pertaining to the earned income reduction in 24-51-707, C.R.S., and the appropriate division in 24-51-708, C.R.S. Any appeal of the determinations made by the Association shall be to the Association in accordance with Rule 2.20.

B. The disability program administrator shall determine all disability matters other than those specified in Rule 7.12 , including, but not limited to, whether the applicant satisfies the medical standards in Rules 7.45 and 7.70 . Matters determined by the disability program administrator shall be appealable only to the disability program administrator, not to the Association. The appeal process used by the disability program administrator shall include two levels: the first appeal must be received by the disability program administrator within 180 days of the date the determination is mailed; the second appeal must be received by the disability program administrator within 90 days of the date the first appeal decision is mailed. The second level appeal will include, if requested by the applicant, review of a medical determination by a panel of independent experts, qualified based on their expertise and experience and not involved in the original decision. The appeal process also shall comply with applicable statutory and regulatory requirements.

7.15Examinations, Records, and Other Information

A. An applicant is required to undergo reasonable examination by physicians, rehabilitation experts, vocational experts, or other experts selected by the disability program administrator.

B. An applicant is required to provide medical records, other medical information, employment information, financial information, and any other information reasonably requested by the disability program administrator.

C. An applicant, any current employer, and any former employer is required to provide the job description, job duties, essential functions, job site conditions, possible accommodation, payroll records, attendance records, return-to-work information, and any other employment-related information reasonably requested by the disability program administrator.

D. Failure to undergo a reasonable examination or re-examination, failure to cooperate with the examiner or the disability program administrator, or failure to provide requested information within 60 days may cause the application to be cancelled and any payment, if started, to cease.

7.25No Voluntary Suspension

After payment for short-term disability or disability retirement has started, voluntary suspension is not permitted.

7.30Performance of Disability Program Administrator

A. The Association shall monitor the performance of the disability program administrator periodically. For this purpose, the disability program administrator shall provide periodic reports to the Association.

B. The Board shall receive a report on the disability program administrator's performance at least annually.

SHORT-TERM DISABILITY:

7.40Contract with Disability Program Administrator

A. The contract with the disability program administrator, in addition to the applicable statutes and rules, shall govern short-term disability. As soon as administratively feasible following the receipt of employer contributions, the Association shall segregate as a separate fund the portion of the contributions necessary to fund the short-term disability program.

B. The contract with the disability program administrator begins January 1, 1999. The applicant's disability must exist on or after that date, and the applicant's waiting period must occur entirely on or after that date.

C. The contract with the disability program administrator may be amended from time to time.

7.45Medical Standard for Short-Term Disability

For short-term disability, the applicant, because of the applicant's medical condition, must not be able to perform the essential functions of the applicant's job with reasonable accommodation as required by federal law.

A. The medical condition causing the disability must be physical or mental or a combination of both. The medical condition must be under ongoing appropriate treatment by a physician with the appropriate specialty.

B. The disability must exist prior to termination of employment as defined in 24-51-101(49), C.R.S.

C. The applicant must not be totally and permanently mentally or physically incapacitated from regular and substantial gainful employment as defined in Rule 7.70.

D. The applicant is not disabled for this purpose if the applicant is medically able to do the types of material duties which the applicant was regularly performing prior to disability and which cannot be reasonably modified or omitted, whether or not the applicant does so.

E. The applicant is not disabled for this purpose if the applicant is medically able to perform any job, based on the applicant's existing education, training, and experience, that earns at least 75 percent of the applicant's predisability earnings from PERA-covered employment as defined in Rule 7.50 , whether or not the applicant does so.

7.50Payment

A. The disability program administrator shall determine the amount payable for short-term disability, if any, and shall pay it.

B. Short-term disability may provide certain income replacement and reasonable rehabilitation as specified in the contract with the disability program administrator.

(1) The maximum amount of monthly income replacement shall be 60 percent of the applicant's predisability earnings from PERA-covered employment. For short-term disability, predisability earnings from PERA-covered employment shall be the monthly average of the applicant's salary as defined in 24-51-101(42), C.R.S., on which PERA contributions were paid for the 12 consecutive calendar months immediately preceding the last full day on the job prior to the waiting period.

(2) As provided in the contract with the disability program administrator, this maximum amount of income replacement shall be reduced by workers' compensation benefits, unemployment compensation benefits, payment for back pay claims, and other amounts to the extent that total payments would otherwise exceed 100 percent of predisability earnings from PERA-covered employment. This short-term disability is not a substitute for workers' compensation or unemployment compensation.

7.60Termination

A. Payment of short-term disability shall not be made under any of the following circumstances:

(1) The applicant is no longer disabled, the applicant satisfies the medical standard for disability retirement in Rule 7.70 , the applicant returns to work other than for a temporary return to work as determined by the disability program administrator, or the applicant does not qualify for short-term disability for any other reason.

(2) The maximum payment period of 22 months ends.

(3) The applicant refunds pursuant to 24-51-405, C.R.S. Short-term disability may be paid to an applicant after termination of employment as defined in 24-51-101(49), C.R.S., but not after a refund.

(4) The applicant is eligible for regular service retirement pursuant to 24-51-602, C.R.S., unless the applicant is in the Judicial Division.

(5) The applicant dies.

B. The applicant shall notify the disability program administrator immediately in writing as soon as the applicant no longer qualifies for payment. In the case of the applicant's death, the applicant's estate or relative is to provide such notice within 30 days.

C. The amount of any overpayment is to be recovered through repayment or offset.

D. A member receiving short-term disability payments may voluntarily terminate receipt of short-term disability payments. Any subsequent receipt of short-term disability payments or disability retirement benefits would be contingent upon meeting the eligibility requirements to apply for such Program as specified at 24-51-701, C.R.S., and the resulting determination by the program administrator.

7.65Terms

A. Short-term disability shall not be a "benefit" as defined in 24-51-101(7), C.R.S. A person receiving short-term disability shall not be a "benefit recipient" as defined in 24-51-101(8), C.R.S.

B. Short-term disability payments shall not be "salary" as defined in 24-51-101(42), C.R.S., shall not be subject to PERA contributions, and shall not result in service credit for PERA purposes.

C. Short-term disability payments shall not reduce the applicant's member contribution account as defined in 24-51-101(31), C.R.S. Any future payment by the Association, after short-term disability, such as a refund, retirement benefits, survivor benefits, or otherwise shall be governed by the applicable provisions of 24-51-101et seq., C.R.S.

DISABILITY RETIREMENT:

7.70Medical Standard for Disability Retirement

For disability retirement, the applicant, because of the applicant's medical condition, must be totally and permanently mentally or physically incapacitated from regular and substantial gainful employment.

A. The medical condition causing the disability must be physical or mental or a combination of both. The medical condition must be under appropriate treatment by a physician with the appropriate specialty.

B. This determination shall be based on whether the applicant is disabled as of termination of employment as defined in 24-51-101(49), C.R.S.

C. To be mentally or physically incapacitated from regular and substantial gainful employment, the applicant's medical condition must prevent the applicant from engaging in any work from which the applicant could earn at least 75 percent of the applicant's predisability earnings from PERA-covered employment.

(1) For disability retirement, predisability earnings from PERA-covered employment shall be the monthly average of the applicant's salary as defined in 24-51-101(42), C.R.S., on which PERA contributions were paid for the 12 consecutive calendar months immediately preceding the last full day on the job.

(2) The applicant is not disabled for this purpose if the applicant is medically able to perform the essential functions of any job with reasonable accommodation as required by federal law and earn at least 75 percent of predisability earnings from PERA-covered employment, whether or not the applicant does so.

(3) To be total and permanent, the applicant must reasonably be expected not to recover.

D. If the applicant does not satisfy this medical standard for disability retirement, the applicant may instead qualify for short-term disability.

7.75Effective Date of Disability Retirement

A. Disability retirement shall be effective on the first day of a month. The effective date of disability retirement shall be no earlier than the first day of the month following termination of employment as defined in 24-51-101(49), C.R.S., without consideration of any lump-sum payment for accumulated annual leave for which service credit is earned or of any extension of service credit for members employed on an academic year basis.

B. An applicant must terminate employment with all PERA-covered employers no later than the last day of the month following the determination that the applicant qualifies for disability retirement. If the applicant fails to terminate by that date, the application shall be cancelled.

C. If an applicant is changing from short-term disability to disability retirement, the effective date for the disability retirement shall be the later of (i) the date specified in Rule 7.75 the first day of the month in which the applicant's short-term disability ends. For the purposes of determining projected service credit pursuant to 24-51-704, C.R.S., the applicant shall receive service credit for any month the applicant received short-term disability pursuant to 24-51-702(1)(a), C.R.S., up to a maximum of one month of service credit per month or the amount to which the member would be entitled pursuant to Rule 5.10 . If the applicant receives any short-term disability after the effective date for disability retirement, the amount of short- term disability paid for that month shall reduce the amount paid as disability retirement for the same month..

D. If the applicant dies prior to the effective date of disability retirement or dies prior to a determination that the applicant qualifies for disability retirement, the Association shall not pay disability retirement, but shall pay survivor benefits or a single payment as specified in Part 9 of Article 51 of Title 24, C.R.S.

7.77Payment

A. The Association shall determine the amount payable as the monthly disability retirement benefit, if any, and shall pay it. The amount payable shall be governed by the applicable provisions of 24-51-701et seq., C.R.S.

B. If the applicant receives any amount by litigation, compromise, settlement, or other method that resolves a claim for back pay for PERA-covered employment, the applicant shall not be permitted to retain or receive any disability retirement for the same period as the claim.

7.80Termination

A. If the applicant is no longer disabled based on the medical standard in Rule 7.70 or otherwise is not qualified for disability retirement for any reason other than the applicant's death, the applicant may receive disability retirement benefits for a maximum of three calendar months immediately following the month in which the determination is made that the applicant no longer qualifies for disability retirement.

B. If payment to the applicant for disability retirement terminates for any reason other than the applicant's death, future payment may occur under the following circumstances:

(1) The applicant qualifies and applies for a regular or reduced service retirement as specified in 24-51-602 or 24-51-604, C.R.S.

a. The applicant's benefit is determined using service credit that includes only actual earned and purchased service credit, not any service credit projected based on 24-51-704, C.R.S.

b. The applicant may select a new option and a new cobeneficiary for this new effective date of retirement.

(2) The applicant qualifies and applies for a refund as specified in 24-51-405, C.R.S., but such refund shall be based on the remaining balance in the applicant's member contribution account, if any, after reduction for all disability retirement benefits.

(3) The applicant dies after disability retirement benefits have terminated for some other reason. Survivor benefits or a single payment may be payable, but only as specified in 24-51-901et seq., C.R.S. For the purpose of calculating any survivor benefits, service credit shall not include any service credit projected based on 24-51-704, C.R.S.

(4) Short-term disability may follow termination of disability retirement, but only if (i) the applicant initially satisfied all of the requirements for short-term disability, except that the applicant satisfied the medical standard for disability retirement in Rule 7.70 , (ii) the applicant continues to satisfy all of the requirements for short-term disability, and (iii) the applicant has received disability retirement for less than the maximum payment period for short-term disability. Under these circumstances, short-term disability shall be paid to the applicant, but only for any months remaining after reducing the maximum payment period for short-term disability by the number of months for which disability retirement was paid.

C. If the applicant dies while receiving disability retirement, future payment, if any, is governed by 24-51-801, C.R.S.

D. The applicant shall notify the Association immediately in writing as soon as the applicant no longer qualifies for disability retirement. In the case of the applicant's death, the applicant's estate or relative is to provide such notice within 30 days.

E. The amount of any overpayment is to be recovered through repayment or offset.

F. A disability retiree may voluntarily terminate receipt of disability retirement benefits. Any subsequent receipt of short-term disability payments or disability retirement benefits would be contingent upon meeting the eligibility requirements to apply for such Program as specified at 24-51-701, C.R.S., and the resulting determination by the program administrator.

7.85Terms

A. Disability retirement shall be a "benefit" as defined in 24-51-101(7), C.R.S. A person receiving disability retirement shall be a "benefit recipient" as defined in 24-51-101(8), C.R.S., and a "retiree" as defined in 24-51-101(39), C.R.S. An applicant shall first become a disability retiree as of the effective date of disability retirement.

B. In accordance with Rule 4.30 , disability retirement benefits shall reduce the applicant's member contribution account as defined in 24-51-101(31), C.R.S.

7.90Denver Public Schools

A. Any disability application submitted to the Association on or after January 1, 2010, by a DPS member shall be processed in accordance with the provisions of Section 24-51-701, et seq., C.R.S. and this Rule 7.

B. A disability application submitted to the Denver Public Schools Retirement System prior to January 1, 2010, shall be processed in accordance with Section 24-51-1701, et seq., C.R.S. and the following rules:

(1) PERA shall contract with a medical advisor to assess and provide a recommendation regarding each disability application. Applicants may be required to undergo medical or psychological examination by the medical advisor or by physicians selected by the medical advisor.

(2) Determination of Disability

(a) The medical advisor shall make a recommendation to PERA staff regarding the disability status of the applicant. Upon review of the application and the medical advisor's recommendation, PERA staff shall make a determination regarding the disability status of the applicant and shall grant or deny such application. PERA staff shall issue a written determination to the applicant via certified mail.

(b) An applicant may request that the PERA Chief Benefits Officer review the staff determination. A written request for review must be received by the Association within 30 days after the date on which the staff determination is mailed. The Chief Benefits Officer shall issue a written determination, which shall be sent to the applicant via certified mail.

(c) An applicant may request an administrative hearing before the Executive Director by submitting a written request, including specifics, which must be received by the Association within 30 days after the date on which the determination by the Chief Benefits Officer is mailed. The hearing shall follow the format set forth in Rule 2.20 . The Executive Director's decision shall constitute final administrative action appealable under Colorado Rule of Civil Procedure 106(a)(4).

C. Review of Previously Granted Disability Retirement

(1) At any time, upon reasonable notice to any retired employee of DPS previously granted disability retirement, provided the benefits for such retiree have not yet been recalculated pursuant to sections 70.2031 or 90.2031 of the DPS Plan, the Association shall have the right to require any such retiree to submit to re-examination to determine whether the retired employee remains permanently incapacitated from performing such employee's former usual employment with DPS. The re-examination shall be performed by a disability program administrator hired by the Association, who shall determine whether the disabling condition continues. The disability program administrator may require any such retiree to answer questions relative to current physical or mental condition and to submit such data in connection therewith as the disability program administrator may deem pertinent and helpful in determining whether the retiree remains incapacitated from performing such employee's former usual employment with DPS.

(2) If any retired employee shall refuse to submit to a required examination or to submit to the disability program administrator, upon request, other pertinent data concerning the retired employee's current physical or mental condition, or if the doctor selected by the retired employee shall fail or refuse to take necessary action to enable the contemplated procedure to go forward with reasonable promptness, the disability program administrator may, without further notification to the retired employee, proceed to review the retirement granted to such employee upon such information as may be secured by the disability program administrator. The Association shall have the right to withhold benefit checks until such required response has been received.

(3) If the disability program administrator determines that the retired employee does not remain permanently incapacitated from performing such employee's former usual employment with DPS, the disability program administrator shall provide the retiree with a summary of the reasons for the finding. The retiree shall be given 15 days to appeal the decision of the disability program administrator. The determination made by the disability program administrator shall be appealable only to the disability program administrator, not to the Association. Once 15 days have passed without appeal, or once a final determination upholding the disability program administrator's determination has been made by the disability program administrator, the Association shall terminate the retiree's benefit.

(4) No person over the age of 65 in any given year shall be subject to re-examination.

D. Review and Recalculation of Disability Benefits

(1) Pursuant to the DPS Plan, qualification of time spent since the effective date of disability retirement as accredited service requires that the disability retiree submit a copy of his or her federal income tax form for the calendar year involved. All such documentation must be submitted to the Association no later than six months following the end of such year.

(2) The DPS Plan provides for the addition of accredited service earned at the effective date of disability retirement to 65.

(3) The Association will notify, in writing, those disability retirees eligible to receive additional accredited service. Such notice will be sent annually to those persons eligible to comply and will advise them of the requirements necessary at least six months prior to the time limits for compliance set forth in Rule 7.90 D(1).

8 CCR 1502-1-7

38 CR 23, December 10, 2015, effective 1/1/2016

39 CR 23, December 10, 2016, effective 1/1/2017

40 CR 04, February 25, 2017, effective 4/1/2017

40 CR 24, December 25, 2017, effective 2/1/2018

41 CR 14, July 25, 2018, effective 9/1/2018

41 CR 20, October 25, 2018, effective 1/1/2019

42 CR 20, October 25, 2019, effective 1/1/2020

43 CR 21, November 10, 2020, effective 1/1/2021

44 CR 20, October 25, 2021, effective 1/1/2022