Retirement Law Blog

Federal Employee Disability Retirement Issues

By Kimberly H. Berry, Esq., www.berrylegal.com

Unfortunately, many federal employees develop serious medical conditions during their career that make them unable to perform the duties of their position and make it important for them to consider filing for disability retirement through the Office of Personnel Management (OPM).  This article discusses these issues.

Federal Law Enforcement and Firefighter Retirement

By Kimberly H. Berry, www.retirementlaw.com

Federal law enforcement officers and firefighters are covered by special provisions of the U.S. Code located in Title 5 for purposes of their retirement.  Many issues can arise with respect to this type of retirement coverage, but the following is a summary of this type of federal retirement. This type of retirement coverage is available to those federal employees who have been employed as a federal law enforcement officer, firefighter (and a few other types of employees) as defined by statute.  While rare, a combination of these types of federal employment (e.g. law enforcement and firefighter) can also provide eligibility. This type of specialized federal retirement coverage is intended to enhance retirement provisions for these types of employees given the nature of their public safety service. Congress has recognized the potential issues in longevity and risks in such professions and provided enhanced retirement provisions.

OPM Disability Retirement for Federal Employees

By Kimberly H. Berry, www.retirementlaw.com

Disability retirement for federal employees is an important right. It is also important to ensure that a federal employee obtains legal advice from a lawyer with federal retirement law experience to provide an individual with the best chance for approval. It is important to note that disability retirement decisions are made not by the federal agency that the individual was employed by, but rather by the Office of Personnel Management (OPM).  

Eligibility

Federal employees are generally covered by two different types of retirement plans, the Civil Service Retirement System (CSRS) and the Federal Employees Retirement System (FERS). Both types of federal employees are eligible for disability retirement should the need arise. In the case of federal employees in CSRS, in order to be eligible they generally must have five (5) years of federal service. For the more numerous FERS employees, that requirement has been shortened to having 18 months of creditable service. While disability retirement before the OPM can require significant effort and may be a detailed and complex process in many cases, entitlement to these benefits is based on a disability which is suffered by a federal employee which prevents them from performing the duties of their individual position. This is different than being disabled from working any position. Furthermore, it is not required, for approval, that the disability be related to a workplace injury. As noted above, the approval process for OPM Disability Retirement distinguishes federal disability retirement from the on-duty requirements of injuries for purposes of federal workers compensation through the Department of Labor, Office of Workers' Compensation Programs (OWCP).

Application Deadline 

The most critical issue for approval for OPM disability retirement is the requirement that the application be filed no later than one (1) year from the date of a federal employee’s separation from employment, be it voluntary or involuntary. Federal employees often resign or are terminated from federal service, but still retain the right to file for disability retirement if done timely. This deadline cannot be overemphasized. We usually advise our clients to file for disability retirement early due to the strict filing deadlines. If an application is not timely received by OPM, then it is highly likely that OPM disability retirement will not be approved. Keep in mind that this is different than deadlines before other agencies, where the application could be postmarked by the due date.  Under 5 U.S.C. § 8453, an application for disability retirement under FERS must be filed with an employee’s employing agency before the employee separates from service or with the former employing agency or OPM within 1 year after the employee’s separation. Bruce v. Office of Personnel Management, 119 M.S.P.R. 617, ¶ 7 (2013).

Disability Application Process

The OPM disability retirement application process can be started while a federal employee is still employed by a federal agency or after they have been separated (up to one year following separation). We also advise federal employees, in conjunction with their OPM disability retirement application, to apply for social security benefits as is required for processing. An approval from Social Security is not required for disability retirement approval, but proof of an application for such benefits is. When a federal or former federal employee decides to file for OPM disability retirement and the federal employee is still employed, the first step is to work through an attorney to confirm that the federal agency cannot accommodate the individual in another position. It is important to keep in mind that the burden of proving entitlement to OPM disability retirement rests with the federal employee unless they have been terminated for medical inability to perform.

Additionally, if still employed, the federal agency will have to indicate whether or not the federal employee can be accommodated. The federal employee will want to work this out, in advance, if possible. In most cases, accommodation is not available. As a result, it is usually important to confirm that the federal agency cannot accommodate the federal employee’s disability by placing them in another position. This issue generally has not been a significant problem in our experience. Additionally, there is a requirement that the disability involved must be expected to last for at least one (1) year in length. 

Medical Professional Opinion

One of the critical components of the OPM disability retirement application process is to obtain the assistance of a medical professional who will provide the key documentation needed for the OPM approval process. OPM considers medical documentation supplied by either a licensed physician or other health care practitioner.  5 C.F.R. 339.104. This is typically completed by a physician or other health care specialist that has observed the federal employee’s serious medical condition and can provide their medical opinion on the issue.

It is very helpful to have counsel coordinate with one’s medical professionals because they are often confused by the application process and we can assist them. Our OPM disability retirement lawyers assist federal employees in the preparation of their OPM disability retirement applications. We work with the individual’s personal physicians, represent the individual before his or her federal agency and/or directly work with OPM in preparing the disability retirement application for submission. Usually, a current federal employee’s agency will process the disability retirement application through the agency. If a federal employee has been separated for more than 31 days, a former federal employee is usually required to submit his or her disability retirement application directly to OPM. In either case, it is important to work with the federal employee’s personal medical professionals to best facilitate the documentation needed for approval. It is important to supply as much medical documentation and other witness documentation in support of the disability as possible to support a claim that a federal employee is unable to continue in their present position.

The OPM Standard of Proof

OPM generally approves applications for OPM disability retirement where the federal employee or the former federal employee can show that, based on the evidence submitted, whether or not the employees' medical impairment precludes him or her from rendering useful and efficient in his or her position.  5 U.S.C. § 8337 provides this standard:

(a) An employee who completes 5 years of civilian service and has become disabled shall be retired on the employee's own application or on application by the employee's agency. Any employee shall be considered to be disabled only if the employee is found by the Office of Personnel Management to be unable, because of disease or injury, to render useful and efficient service in the employee's position and is not qualified for reassignment, under procedures prescribed by the Office, to a vacant position which is in the agency at the same grade or level and in which the employee would be able to render useful and efficient service. . . .

Id. (emphasis added).

The Bruner Presumption

It is important to also consider the effect that a removal from the federal service, based on medical inability, has on filing for disability retirement.  If a federal employee is removed for medical inability to perform, the Merit Systems Protection Board (MSPB) consider this to be primary evidence of eligibility for disability retirement.  In other words, it makes qualifying for OPM disability retirement much easier for the federal employee. This is known as the Bruner presumption, which was taken from the case of Bruner v. OPM, 996 F.2d (Fed. Cir. 1993).  In cases where OPM contests qualification for disability retirement, the Bruner presumption shifts the burden of proof to OPM to prove why the individual should not be entitled to retirement, instead of the other way around.  

Issues Following Retirement Approval from OPM

If OPM ultimately approves a federal employee’s disability retirement application, an individual is still generally permitted to maintain other, non-federal employment, subject to an 80% earnings limitation which is helpful to many annuitants. This can be a significant benefit. Following approval, OPM disability retirement can be terminated by OPM only under certain conditions which rarely occur. These can include the following conditions:

(1) the individual has medically recovered from their disability condition;

(2) the individual exceeds the 80% earnings limitation in their new employment; or

(3) the individual is reemployed in the federal service in an equivalent position held prior to retirement.

Conversion to Regular Retirement for FERS Annuitants

If none of these issues present themselves, the individual will continue in disability retirement status until age 62. As OPM provides, for FERS annuitants, in their brochure:

"Your annuity will be recomputed using an amount that essentially represents the annuity you would have received if you had continued working until the day before your sixty-second birthday and then retired under FERS non-disability provisions. The total service used in the computation will be increased by the amount of time you have received a disability annuity. The average salary will be increased by all FERS cost-of-living increases which occurred during the time you received a disability annuity (even if the adjustment did not affect your annuity). The FERS basic annuity formula (1% of your “high-3” average salary multiplied by your total years and months of service) is then applied, using the adjusted time base and average salary. If your actual service plus the credit for time as a disability retiree equals 20 or more years, the formula would be 1.1% of your “high-3” average salary multiplied by the total of your years and months of service, using the adjusted time base and average salary."

In other words, there is a significant benefit to being able to convert a disability retirement to a regular annuity when the time comes.  

Filing for OPM Reconsideration and/or an MSPB Appeal

Following submission of the disability retirement package to OPM, our law firm also represents federal employees in reconsideration requests before OPM where initial applications for disability retirement have been denied. In such situations, it is important to act quickly and with as much additional documentation in support of the disability retirement application as possible. Typically, there is a 30-day window in which to submit additional documentation or evidence to OPM when requesting reconsideration of OPM’s initial decision. In cases where OPM has denied a disability retirement application following reconsideration, we further represent federal employees in appeals of final adverse OPM decisions with respect to disability retirement before the MSPB. In cases where the MSPB does not reverse OPM’s adverse decision, we also represent federal employees before the U.S. Court of Appeals for the Federal Circuit on disability retirement matters.

Conclusion

It is very important for federal employees considering disability retirement to obtain legal advice and counsel to discuss their retirement issues prior to filing an application for disability retirement. Berry & Berry, PLLC represents and advises federal employees nationwide and abroad before their individual federal agencies, OPM and the Merit Systems Protection Board (MSPB) in regard to their federal disability retirement applications and requests for reconsideration. In addition, we also advise federal employees, in advance, as to their potential eligibility for federal disability retirement benefits. Please contact us through our webpage or telephone us at (703) 668-0070 to schedule a consultation with one of our disability retirement attorneys to discuss your individual disability retirement issue.

New Thrift Savings Plan (TSP) Options for Federal Employees

By Kimberly H. Berry, Esq., www.retirementlaw.com

The Thrift Savings Plan (TSP) is a retirement savings and investment plan for federal employees and members of the uniformed services. It was established by Congress in 1986 as part of the Federal Employees’ Retirement Systems Act. The TSP offers the same types of savings and tax benefits that a 401(k) plan offers to private sector employees of companies. In April 2017, on the TSP’s 30-year anniversary, a bill was offered by Senators Rob Portman (R-Ohio) and Thomas R. Carper (D-Del) to bring the TSP’s terms more up-to-date with similar programs. Specifically, the legislation seeks to expand investment and withdrawal options.

Recent Developments for TSP

Recently, the Washington Post published a helpful Q&A that provided more details regarding the TSP’s new investment options. For instance, one of the TSP’s five funds, tracking international stocks, will be broadened in 2019 to include emerging markets and Canada. The TSP is also working towards allowing account holders to invest in funds outside of what’s currently offered. Additional bills pending before Congress also allow for more withdrawal options post-retirement, including for federal workers and servicemen and women still employed and at least 59 ½ years of age. Since current withdrawal options are limited, it is hopeful that these changes will allow participants more flexibility and freedom regarding their retirement savings.

Most TSP issues that we handle in our federal retirement practice involve withdrawal guidelines and requirements, including issues involving federal retirees who are divorced and ordered to divide their retirement benefits, including TSP benefits, with a former spouse. In addition, federal employees and uniformed servicemen and women leaving employment for retirement or other reasons may keep TSP accounts open. However, they cannot add to their TSP accounts post-retirement or separation, but TSP monies can be transferred to an IRA or other tax-favored plans. The transfer rules, including deadlines, can often be complicated and difficult to understand, but we hope that the legislation allowing for additional investment and withdrawal options will help bring more financial stability as well as a better understanding of the rules involving federal retirement plans.

Conclusion

If you need assistance with a federal employment, federal retirement or TSP issue, please contact our office at 703-668-0070 or at www.retirementlaw.com to schedule a consultation. Please also like and visit us on Facebook at Facebook.

Position Descriptions and OPM Disability Retirement for Federal Employees

By Kimberly H. Berry, Esq., www.berrylegal.com

Our law firm handles many different types of federal retirement issues in our representation of federal employees. One of the more common types of retirement cases that we often handle involves the representation of federal employees in the disability retirement process before various federal agencies and the Office of Personnel Management (OPM). Federal employees filing for disability retirement are typically covered under the Federal Employees Retirement System (FERS) or the Civil Service Retirement System (CSRS).

Federal employees should consider the following questions before they pursue OPM disability retirement:

How serious are the federal employee’s medical issues and are they linked to the federal employee’s position description duties?

When making a disability retirement decision, keep in mind that OPM evaluates your continued ability to work with your medical condition in the context of the duties described in your position description. If the medical disability is not deemed serious enough, or not fully supported by medical documentation and evidence, and is not sufficiently linked to your inability to “usefully and efficiently” carry out your job duties, then OPM may deny the disability retirement application.

How long is the medical disability realistically expected to last?

OPM requires that a medical disability be expected to last at least one year in duration. When considering whether to file for disability retirement, it is important for you to consider the expected duration of your medical disability. Disabilities with known shorter duration could be problematic for you in the application process.

Can a federal employee survive on a reduced annuity?

If you are considering filing for OPM disability retirement, understand that this type of retirement usually provides you with a lower monthly retirement annuity in comparison to full retirement. As a result, we recommend that you obtain benefit estimates from your human resources representative and consult with a financial advisor about the impact of a potential reduced annuity prior to filing for disability retirement.

Are there modifications to a federal employee’s current position that can be made to allow the federal employee to continue to work?

Oftentimes a federal agency will work with you to provide you with a reasonable accommodation (i.e., change in duties, hours, telework or other adjustments) that can make your current position and medical condition workable. This can often be the best solution, even if it is only a short-term solution. As a part of the disability retirement process, the federal agency is required to certify that it is unable to accommodate your disabling medical condition in your present position. The agency must also certify that it has considered you “for any vacant position in the same agency, at the same grade or pay level, and within the same commuting area, for which [you] qualified for reassign­ment.”

Do your medical professionals believe that you should not continue in your current position?

This is an important consideration when filing for disability retirement. In most cases, physicians will be open with their patients about whether it is a good idea to keep working in their current federal employment position. There are at least two reasons to discuss a possible filing for OPM disability retirement with your treating medical provider(s). First, your health should be of primary importance and a consideration when determining whether continuing in a job hinders or impedes your recovery. Second, physicians and their medical opinions are necessary and, in fact, crucial in the disability retirement application process with OPM. OPM will require a physician’s statement about your medical issues, and the physician’s statement can either make or break the outcome of your disability retirement application.

Conclusion

When considering OPM disability retirement, it is important to obtain the advice and representation of legal counsel. You can contact our law firm through www.retirementlaw.com, www.berrylegal.com, or by telephone at 703-668-0070, to schedule a consultation to discuss your individual federal employment retirement matter. Please also visit and like us on Facebook at www.facebook.com/BerryBerryPllc.

Discontinued Service Retirement for Federal Employees

By Kimberly H. Berry, Esq., www.retirementlaw.com

When federal employees are involuntarily separated against their will, other than a separation for cause on charges of misconduct or delinquency, they may qualify for a Discontinued Service Retirement (DSR) annuity.  DSR retirement provides an immediate and possibly reduced annuity for federal employees that are separated against their will.  The key to a successful DSR retirement application is the underlying basis of the voluntary separation.  The final determination as to whether a DSR retirement will be approved rests with the Office of Personnel Management (OPM) and not with the individual federal agency.  

Grounds for DSR Retirement

According to OPM, proper grounds for involuntary separations for DSR purposes include, but are not limited to, the following reasons:

• Reductions-in-Force (RIF);
• The abolishment of a federal employee’s position;
• Unacceptable performance (unless due to misconduct), i.e. unsuccessful completion of a Performance Improvement Plan (PIP);
• Transfer of function outside commuting area;
• Failure to continue to meet the qualification requirements of a position -- i.e., the inability to maintain a security clearance or medical issues that arise (fitness for duty);
• Separation during probation because of failure to qualify due to performance; and
• Removal from the Senior Executive Service (SES) for less than fully successful performance.

CSRS Coverage

A federal employee who is involuntarily separated and has CSRS coverage is eligible for a discontinued service annuity if all of the following conditions are met:

1. Age and service requirements (i.e., the employee has completed at least 20 years of creditable service and is at least 50 years of age or has completed at least 25 years of creditable service regardless of age);
2. Minimum civilian service requirement;
3. Separation from a position subject to CSRS coverage;
4. "One-out-of-two” requirement (i.e., an employee must be covered by CSRS for at least 1 year within the 2-year period immediately preceding the separation on which the annuity is base); and
5. No declination of a reasonable offer.

FERS Coverage

An employee who is involuntarily separated and has FERS coverage is eligible for a discontinued service annuity if all of the following conditions are met:

1. Age and service requirements (i.e., the employee has completed at least 20 years of creditable service and is at least 50 years of age or has completed at least 25 years of creditable service regardless of age);
2. Minimum civilian service requirement;
3. Separation from a position subject to FERS coverage; and
4. “Reasonable offer” requirement.

Conclusion

Our law firm represents and advises current and former federal employees nationwide and abroad with respect to DSR issues under FERS and CSRS retirement plans.  Often times a DSR option can be overlooked as a possible means by which to resolve a federal employment dispute with a federal agency.  Please contact our firm to schedule a consultation with one of our attorneys to discuss your DSR matter.

Federal Disability Retirement Approvals from OPM

By Kimberly H. Berry, www.retirementlaw.com

We represent federal employees and former federal employees in disability retirement matters. When disability retirement applications are filed with the Office of Personnel Management (OPM), the waiting times for approval can vary, generally between two and six months. Processing times vary at OPM given personnel shortages, increased applications and other factors. According to one recent article by Fedsmith, OPM has been falling behind in processing times for all retirements. Notwithstanding, when OPM completes processing, successful applicants will be notified of their disability retirement approval. In its approval notice, OPM generally provides information about payment, restoration to capacity issues, and other important information for disability retirement retirees. Attached is a sample letter of what a federal employee or former federal employee might expect to receive from OPM when successful in filing for disability retirement with OPM. Download Disability Retirement OPM approval.  

We represent former and current federal employee in retirement matters. If you need assistance with a federal retirement, please contact our office at (703) 668-0070 or at www.retirementlaw.com to schedule a consultation. Please also visit and like us on Facebook at www.facebook.com/BerryBerryPllc.

Reasons for Termination of Federal Disability Retirement

By Kimberly H. Berry, www.retirementlaw.com

There are a number of circumstances that may cause the U.S. Office of Personnel Management (OPM) to end a federal employee’s disability retirement annuity.  It is important, as a disability annuitant to be aware of them.

Most Common Reasons for OPM to Terminate Disability Retirement Annuity 

The 3 most common reasons why OPM would rescind federal disability retirement benefits include:

1. Restoration to Earning Capacity: Until a federal disability retiree reaches the age of 60, he or she will typically be given a survey by OPM about the disability retiree’s annual income in the previous year. OPM may consider a disability retiree restored to earning capacity if the individual’s earnings from wages and/or self-employment in any calendar year while a disability annuitant reaches or exceeds 80 percent of the current rate of basic pay of the position the individual occupied immediately prior to retirement. If the disability retiree’s income reached the 80 percent earnings limit in any such calendar year, OPM will usually write (although sometimes belatedly) and inform the disability retiree that his or her disability annuity will terminate.

2. OPM Deems an Individual Recovered: OPM may contact a disability retiree and ask the retiree to provide a current medical report from a physician regarding the status of the medical condition that was the basis for disability retirement. A disability retiree can also be asked by OPM about his or her current employment status and other relevant activities. If this information shows a recovery, then the disability retirement annuity may cease. If a disability retiree does not respond to the request by OPM, his or her disability annuity payments may also be suspended.

3. Re-employment in the Federal Government: If a disability retirement annuitant is re-employed in the federal sector, his or her disability retirement annuity amount may change or terminate.

What Happens if OPM Suspends of Terminates Disability Retirement for an Annuitant?

If OPM suspends or terminates an individual’s disability retirement annuity, the disability retiree can contest OPM’s determination and/or move to have his or her disability annuity restored depending on the situation. For example, if a disability retiree is restored to his or her earning capacity but then later drops below the 80% threshold, the disability retirement annuity can be restored. Other examples include situations involving medically recovered individuals who experience later recurrences of the disability. Each individual situation is different, so it is important to consult with an attorney on individual cases.

We represent former and current federal employee in retirement matters. If you need assistance with a federal retirement, please contact our office at (703) 668-0070 or at www.retirementlaw.com to schedule a consultation. Please also visit and like us on Facebook at www.facebook.com/BerryBerryPllc.

Health Benefits (FEHB) For Federal Employees

By Kimberly H. Berry, www.retirementlaw.com 

The Federal Employees Health Benefits (FEHB) program is administered by the Office of Personnel Management (OPM) and provides a wide selection of health plans for civilian federal government employees, federal retirees and their survivors.  Federal retirees and their survivor annuitants generally retain their eligibility for FEHB health coverage at the same cost as current federal employees.  

FEHB Background

Generally, in order for an employee to carry his or her FEHB coverage into retirement, he or she must be entitled to retire on an immediate annuity under a retirement system for civilian employees and must have been continuously enrolled in any FEHB plan(s) for the five (5) years of service immediately before the date his or her annuity begins, or the full period(s) of service since his or her first opportunity to enroll, whichever is less.  The five-year-requirement period can also include the time that the individual is covered as a family member under another person’s FEHB enrollment or the time that the individual is covered under the Uniformed Services Health Benefits Program (TRICARE) as long as you were covered under a FEHB enrollment at the time of your retirement.  FEHB brochures are available through OPM.

Eligibility for FEHB

Your current spouse and dependents (under the age of 26) can be eligible for FEHB benefits. Furthermore, pursuant to the Civil Service Retirement Spouse Equity Act of 1984, certain former spouses of Federal employees, former employees, and/or annuitants may potentially qualify to enroll in a FEHB health benefits plan. Federal employee benefit issues involving FEHB can be complex.  Occasionally, FEHB issues can also arise in the context of Merit Systems Protection Board (MSPB) appeals or other court actions.

Conclusion

Berry & Berry, PLLC represents federal employees nationwide and abroad in matters involving FEHB benefits.  It is important to seek advice and representation from an attorney when issues involving FEHB arise. If a federal employees needs assistance with a retirement law issue, please contact our office at (703) 668-0070 or at www.retirementlaw.com to schedule a consultation.  Please also visit and like us on Facebook at www.facebook.com/BerryBerryPllc.

 

Thrift Savings Plan (TSP) Issues for Federal Employees

by Kimberly H. Berry, Esq., www.retirementlaw.com 

What is a TSP?

The Thrift Savings Plan (TSP) is a retirement savings and investment plan for federal employees, retirees, and members of the uniformed services.  The TSP offers the same types of savings and tax benefits that private companies offer their employees under traditional 401(k) retirement plans.  The TSP is a defined contribution plan, which means that the retirement income that an individual receives from his or her TSP account will depends on how much is contributed by the federal employee and the federal agency (if the individual is eligible to receive agency contributions) to the individual’s account during his or her working years as well as the earnings that accumulate over that time.

If a federal employee is covered under the Federal Employees Retirement System (FERS), the TSP is one of three components.  The other two components are the FERS basic annuity and Social Security.  If a federal employee is covered under the Civil Service Retirement System (CSRS) or happens to be a member of the uniformed services, the TSP is a supplement to the individual’s CSRS annuity or military pay.

If a federal employee is married, federal law grants a spouse certain rights regarding the federal employee’s TSP account under FERS.  These rights can vary.  More information on TSP federal agency programs can be found here.  Following separation from federal employment, the federal agency becomes the primary point of contact for TSP issues that arise for former federal employees. Federal employees often need legal advice and/or legal representation in regards to TSP issues that arise.  TSP issues can arise in many contexts, including court proceedings and before the Merit Systems Protection Board.

Conclusion

Berry & Berry, PLLC represents federal employees nationwide and abroad in matters involving Thrift Savings Plan (TSP) benefits.  It is important to seek advice and representation from an attorney when issues involving TSP benefits arise. If a federal employees needs assistance with a retirement law issue, please contact our office at (703) 668-0070 or at www.retirementlaw.com to schedule a consultation.  Please also visit and like us on Facebook at www.facebook.com/BerryBerryPllc.