Retirement Law Blog

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.

Seeking Reconsideration from OPM in Retirement Cases

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

Our law firm represents federal employees in retirement matters before federal agencies and the Office of Personnel Management (OPM).  Federal employees are either covered under the Federal Employees Retirement System (FERS), the Civil Service Retirement System (CSRS), or CSRS Offset.  Typically, federal employees and retirees seek our legal assistance after OPM has issued a negative decision regarding their retirement case.  In such cases, the federal employee or retiree is provided with an opportunity to request reconsideration regarding OPM’s initial decision. If the federal employee or retiree eventually receives an adverse final agency decision (FAD), then he or she will then have the opportunity to appeal the FAD to the Merit Systems Protection Board (MSPB).

What is Reconsideration?

Reconsideration is simply OPM’s method of reviewing its initial decision to ensure that the applicable laws, rules and regulations have been properly applied to a federal employee or retiree’s matter.  However, in order for OPM to begin its review, the federal employee or retiree must initiate a request for reconsideration.  The OPM reconsideration process will then afford the federal employee or retiree an early opportunity to address any deficiencies and legal errors in OPM’s initial decision.  

Initial Decision and Denial from OPM

OPM must first rule against the federal employee or retiree before he or she can request OPM’s reconsideration. OPM’s initial adverse ruling is referred to as an initial decision.  Suppose a federal employee has applied for disability retirement, but OPM decides to rule against the employee. OPM would then issue an initial decision denying the employee disability retirement benefits and providing the employee with an opportunity to request reconsideration within a specified time period (usually 30 days).  Reconsideration requests can involve various retirement issues before federal agencies or OPM, including, but not limited to, disability retirement, the Federal Erroneous Retirement Coverage Corrections Act (FERCCA), and court-ordered spousal and survivor annuity benefits issues.  

Seeking Reconsideration from OPM

Generally, a federal employee has 30 days within which to request reconsideration from the date of an adverse OPM decision.  It is very important to ensure that the request to OPM is timely.  Otherwise, the request for reconsideration can be denied by OPM.  When submitting a reconsideration request, it is important to provide as much authority and documentation as possible when addressing any potential deficiencies cited or referred to by OPM in the initial decision.  For example, in disability retirement cases, it may be necessary and crucial to provide additional medical documentation if there is a question as to whether or not a federal employee is disabled for service in his or her current position.    

Conclusion

When seeking reconsideration from OPM, 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.  The law firm's Facebook page is located at the following Internet address: https://www.facebook.com/BerryBerryPllc.

 

5 Tips in Considering OPM Disability Retirement

By Kimberly H. Berry, Esq., www.retirementlaw.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 either covered under the Federal Employees Retirement System (FERS) or the Civil Service Retirement System (CSRS).  

The following questions identify a few of the initial considerations that you should examine when determining whether or not to pursue OPM disability retirement. If you are seriously considering filing for disability retirement, there are many considerations (certainly more then just five) to discuss with an attorney knowledgeable in this area of law.

The following five tips are only meant to get you thinking through some of the issues and concerns as you to consider or begin filing for OPM disability retirement:

1. 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.  OPM uses the phrase “useful and efficient service in your current position” to describe the degree to which you are able to carry out your job duties. 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.  

For instance, an application of a federal law enforcement officer with a continuing serious heart condition would likely be given serious consideration if her medical reports and letters adequately document her inability to usefully and efficiently carry out her position description duties. In contrast, a federal employee with a back injury and whose position involves mostly administrative duties, who does not have appropriate medical evidence to show the continuing seriousness of his illness and inability to perform his job duties, could potentially have difficulty succeeding in the disability retirement application process. 

2. How long is the medical disability realistically expected to last?

The duration of a serious medical disability is very important as well.  OPM generally 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.

3. 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 consult with a financial advisor about the impact of a potential reduced annuity prior to filing for disability retirement.  

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

Often times 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 compatible or workable.  This can often be the best 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.” 

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

This is an important consideration when filing for disability retirement.  We find that physicians will usually be open with their patients about whether or not it is a good idea to keep working in their current federal employment position.  We have identified at least two reasons to discuss a possible filing for OPM disability retirement with your treating medical providers. First and foremost, your health should be of primary importance and continuing in a job that hinders or impedes your recovery is not good for you.  Second, physicians and their medical opinions are necessary and, in fact, crucial in the disability retirement application process with OPM.  OPM will require physicians’ statements about your medical issues, and these physician statements can either make or break your potential outcome in the disability retirement application process.

Conclusion

When considering OPM disability retirement, it is important for you 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.

Redeposit Issues Affecting Federal Employee Annuitants

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

Occasionally, we encounter federal retirement cases involving former federal employees who have retired prior to having reached their retirement age or required length of service. Many of these departing federal employees take withdrawals of their retirement contributions when they leave federal service. Federal employees often do so based on misinformation provided by federal agency officials. A common situation involving agency misinformation typically involves when the federal employee withdraws his or her contributions based on the misinformation that he or she can later redeposit retirement contributions after departing federal service when he or she reaches retirement age. 

Redeposit Issues for Federal Employees

The important point for departing federal employees to take away here is that former federal employees can potentially redeposit their retirement contributions, but only if they have taken a partial (as opposed to a full) refund of their retirement contributions. A full refund of retirement contributions generally voids all annuity rights based on the service for which the refund was made.  However, there does appear to be a small exception for a former federal employee who has received a refund for some, but not all, of his or her retirement contributions. See 5 C.F.R. § 831.112 (a)(2); 5 U.S.C. § 8334 (d)(2). In these types of cases, the presence of a remaining retirement deposit may entitle a former employee to a reduced annuity, and potentially provide the former employee the ability to redeposit funds. Again, this exception does not appear to apply to a former federal employee who has received a full refund of his or her retirement contributions. In addition, former federal employees can circumvent this issue if they obtain future federal employment that reinstates their retirement rights.

Issues Involving Incorrect Retirement Advice Given by Federal Agencies

Generally, government misinformation is a difficult basis with which to address this issue, especially years after the federal employee has left his or her respective federal agency. We have found that this type of legal argument is unlikely to change the outcome of a retirement case before the Office of Personnel Management (OPM) or the Merit Systems Protection Board (MSPB).  In other words, it can be difficult to hold a federal agency liable for its inaccurate retirement advice, except in the instance where such advice was purposefully and maliciously intended to be harmful to the former federal employee. The MSPB and the courts have been more receptive to federal employee arguments involving a federal agency that has intentionally provided inaccurate advice to harm the federal employee.  See OPM v. Richmond, 496 U.S. 414, 421 (1990) (Supreme Court leaving open the possibility that a federal employee might have redress against OPM denying benefits). 

Conclusion

When departing or retired federal employees have federal retirement issues, such as redeposit matters, it is important to obtain the advice of legal counsel, especially with regard to questions concerning whether or not to withdraw retirement contributions. Our law firm is experienced in federal retirement issues and is available to advise individuals regarding these types of federal retirement matters. We can be reached at www.berrylegal.com or by telephone at (703) 668-0070.