KRS 78.5528: Vocational experts -- Disability retirement allowance -- Reduction --

Discontinuance -- Determinations by medical examiner or vocational expert --

Hearings and appeals -- Early retirement upon discontinuance of disability

allowance for member who began participating before January 1, 2014.

(1) (a) The Authority may contract for the services of one (1) or more vocational

experts upon terms and conditions it prescribes to:

1. Review and investigate all employment information and forms

submitted by a disability recipient under this section and KRS 78.5526;

and

2. Report in writing to the Authority the conclusions and recommendations

upon all matters referred for review and investigation.

(b) A vocational expert providing services to the Authority shall have a master's

degree or higher degree in counseling or rehabilitation, an American Board of

Vocational Experts certification, or a certification as a Certified Rehabilitation

Counselor, Certified Disability Management Specialist, Associate Disabili ty

Case Manager, Licensed Rehabilitation Counselor, or Certified Case

Manager.

(2) (a) Each recipient of a disability retirement allowance who is engaged in gainful

employment shall notify the Authority upon beginning the employment. If the

member fails to notify the Authority of the gainful employment, the Authority

may recover the payments of a disability retirement allowance made during

the gainful employment.

(b) The system may reduce or discontinue a recipient's disability allowance if the

Authority's medical examiner selected under KRS 61.665 or vocational expert

selected under this section determines that:

1. A recipient of a disability retirement allowance is, prior to his or her

normal retirement date, gainfully employed in a position with the same

or similar duties, or in a position with duties requiring greater residual

functional capacity and physical exertion, as the position from which he

or she was disabled, except where the recipient has returned to work on

a trial basis not to exceed nine (9) months; or

2. A recipient of a disability retirement allowance resulting solely from

mental illness is, prior to his or her normal retirement date, employed in

a position with the same or similar duties, or in a position with duties

requiring greater residual functional capacity, as the position from which

he or she was disabled.

(3) The system may reduce or discontinue a recipient's disability allowance if the

Authority's medical examiner determines that a recipient of a disability retirement

allowance is, prior to his or her normal retirement date, no longer incapacitated by

the bodily injury, mental illness, or disease for which he or she receives a disability

retirement allowance.

(4) (a) The system shall have full power and authority to reduce or discontinue a

disability retirement allowance and the Authority shall utilize the services of a

medical examiner as provided in KRS 61.665 or a vocational expert selected

under this section, in determining whether to continue, reduce, or discontinue

a disability retirement allowance under this section.

(b) The Authority shall select one (1) medical examiner to evaluate the forms and

employment and medical information submitted by the person. If only

employment information is submitted, the Authority may select one (1)

vocational expert to evaluate the forms and employment information

submitted by the person. If there is objective medical evidence of a mental

impairment, the medical examiner may request the Authority's licensed

mental health professional to assist in determining the level of the mental

impairment.

(c) The medical examiner or v ocational expert shall be paid a reasonable amount

by the Authority for each case evaluated.

(d) 1. The medical examiner or vocational expert shall recommend that the

disability retirement allowance be continued, reduced, or discontinued.

2. If the medical examiner or vocational expert recommends that the

disability retirement allowance be continued, the system shall make

retirement payments in accordance with the retirement plan selected by

the person.

3. a. If the medical examiner or vocational expert rec ommends that the

disability retirement allowance be reduced or discontinued, the

Authority shall send notice of the recommendation by United

States first -class mail to the person's last address on file in the

retirement office, by electronic mail to the pe rson's last electronic

mail address on file in the retirement office, or by other electronic

means.

b. The person shall have sixty (60) days from the day that the

Authority sent the notice to file at the retirement office additional

supporting employment o r medical information and certify to the

Authority that the forms and additional supporting employment

information or medical information are ready to be evaluated by

the medical examiner or vocational expert or to appeal the

recommendation of the medical examiner or vocational expert to

reduce or discontinue the disability retirement allowance by filing

at the retirement office a request for a formal hearing.

c. If the person fails or refuses to file at the retirement office the

forms, the additional suppo rting employment information, and

current medical information or to appeal the recommendation of

the medical examiner or vocational expert to reduce or discontinue

the disability retirement allowance, his or her retirement allowance

shall be discontinued o n the first day of the month following the

expiration of the period of the sixty (60) days from the day the

Authority sent the notice of the recommendation to the person's

last address on file in the retirement office, by electronic mail to

the person's la st electronic mail address on file in the retirement

office, or by other electronic means.

(e) 1. The medical examiner shall make a recommendation based upon the

evaluation of additional supporting employment and medical

information submitted in accordance with paragraph (d)3.b. of this

subsection, or the vocational expert shall make a recommendation based

upon the additional supporting employment information submitted in

accordance with paragraph (d)3.b. of this subsection.

2. If the medical examiner or vo cational expert recommends that the

disability retirement allowance be continued, the system shall make

disability retirement payments in accordance with the retirement plan

selected by the person.

3. a. If the medical examiner recommends that the disabili ty retirement

allowance be reduced or discontinued based upon the evaluation of

additional supporting employment information and medical

information, or if the vocational expert recommends that the

disability retirement allowance be reduced or discontinued based

upon the evaluation of additional employment information, the

Authority shall send notice of this recommendation by United

States first -class mail to the person's last address on file in the

retirement office, by electronic mail to the person's last electronic

mail address on file in the retirement office, or by other electronic

means.

b. The person shall have sixty (60) days from the day that the

Authority sent the notice of the recommendation to appeal the

recommendation to reduce or discontinue th e disability retirement

allowance by filing at the retirement office a request for formal

hearing.

c. If the person fails or refuses to appeal the recommendation of the

medical examiner or vocational expert to reduce or discontinue the

disability retiremen t allowance, his or her retirement allowance

shall be discontinued on the first day of the month following the

expiration of the period of the sixty (60) days from the day the

Authority sent the notice of the recommendation to the person's

last address on file in the retirement office, by electronic mail to

the person's last electronic mail address on file in the retirement

office, or by other electronic means.

(f) Any person whose disability benefits have been reduced or discontinued,

pursuant to paragraph (d)3.a. or (e)3.a. of this subsection, may file at the

retirement office a request for formal hearing to be conducted in accordance

with KRS Chapter 13B. The right to demand a formal hearing shall be limited

to a period of sixty (60) days after the person had notice, as described in

paragraph (d) or (e) of this subsection. The request for formal hearing shall be

filed with the Authority, at the retirement office in Frankfort. The request for

formal hearing shall include a short and plain statement of the r easons the

reduction, discontinuance, or denial of disability retirement is being contested.

(g) Failure of the person to request a formal hearing within the period of time

specified shall preclude the person from proceeding any further with

contesting the reduction or discontinuation of disability retirement allowance,

except as provided in subsection (7)(d) of this section. This paragraph shall

not limit the person's right to appeal to a court.

(h) A final order of the board shall be based on substantial evidence appearing in

the record as a whole and shall set forth the decision of the board and the facts

and law upon which the decision is based. If the board orders that the person's

disability retirement allowance be discontinued or reduced, the order sh all

take effect on the first day of the month following the day the Authority sent

the order to the person's last address on file in the retirement office, by

electronic mail to the person's last electronic mail address on file in the

retirement office, or by other electronic means. Judicial review of the final

board order shall not operate as a stay and the system shall discontinue or

reduce the person's disability retirement allowance as provided in this section.

(i) Notwithstanding any other provisions o f this section, the system may require

the person to submit to one (1) or more medical or psychological

examinations at any time. The system shall be responsible for any costs

associated with any examinations of the person requested by the medical

examiner or the system for the purpose of providing medical information

deemed necessary by the medical examiner or the system. Notice of the time

and place of the examination shall be provided to the person or his or her legal

representative. If the person fails or refuses to submit to one (1) or more

medical examinations, his or her rights to further disability retirement

allowance shall cease.

(j) All requests for a hearing pursuant to this section shall be made in writing.

(5) The board may establish an appeals committee whose members shall be appointed

by the chair and who shall have the authority to act upon the recommendations and

reports of the hearing officer pursuant to this section on behalf of the board. The

board may also establish a joint appeals commi ttee with the Kentucky Retirement

Systems.

(6) Any person aggrieved by a final order of the board may seek judicial review after

all administrative appeals have been exhausted by filing a petition for judicial

review in the Franklin Circuit Court in accordance with KRS Chapter 13B.

(7) If a disability retirement allowance is reduced or discontinued for a person who

began participating prior to January 1, 2014, the person may apply for early

retirement benefits as provided under KRS 78.5510 or 78.5514, as ap plicable,

subject to the following provisions:

(a) The person may not change his or her beneficiary or payment option;

(b) If the person has returned to employment with an employer participating in

the County Employees Retirement System, Kentucky Employees Retirement

System, or State Police Retirement System, the service and creditable

compensation shall be used in recomputing his or her benefit, except that the

person's final compensation shall not be less than the final compensation last

used in determining his or her retirement allowance;

(c) The benefit shall be reduced as provided by KRS 78.5510(4) or 78.5514(4);

(d) 1. The person shall remain eligible for reinstatement of his or her disability

allowance upon reevaluation until his or her normal retirement age. The

person shall apply for reinstatement of disability benefits in accordance

with the provisions of this paragraph.

2. An application for reinstatement of disability benefits shall be

administered as an application under KRS 78.5524 or 78.5526, as

applicable, except:

a. Only the bodily injuries, mental illnesses, diseases, or conditions

for which the person was origi nally approved for disability

benefits shall be considered. Bodily injuries, mental illnesses,

diseases, or conditions that came into existence after the person's

last day of paid employment shall not be considered as a basis for

reinstatement of disabilit y benefits. Bodily injuries, mental

illnesses, diseases, or conditions alleged by the person as being

incapacitating, but which were not the basis for the award of

disability retirement benefits, shall not be considered;

b. A person whose disability allowa nce was discontinued under

subsection (2) of this section, who is still employed in the same

position on which his or her disability allowance was

discontinued, shall submit with the application employment

information detailing the changes to the position evidencing cause

for reinstatement;

c. A person whose disability allowance was discontinued under

subsection (3) of this section shall provide with the application

new objective medical evidence not previously considered by the

Authority's medical examiner; and

d. The application for reinstatement shall be reviewed by one (1)

medical examiner or vocational expert.

3. If the person establishes that the disability benefits should be reinstated,

the system shall pay disability benefits effective from the first day of the

month following the month in which the person applied for

reinstatement of the disability benefits; and

(e) Upon attaining normal retirement age, the person shall receive the higher of

either his or her disability retirement allowance or his or her early retirement

allowance.

(8) If a disability retirement allowance is reduced or discontinued for a person who

began participating in the system on or after January 1, 2014, the person shall

remain eligible for reinstatement of his or her disability allowance as provided

under subsection (7)(d) of this section.

(9) No disability retirement allowance shall be reduced or discontinued by the system

after the person's normal retirement date except in case of reemployment as

provided for by KRS 78.5540. If a disability retirement allowance has been reduced

or discontinued, except if the person is reemployed as provided for by KRS

78.5540, the retirement allowance shall be reinstated upon attainment of the

person's normal retirement date to the retirement a llowance prior to adjustment. No

reinstated payment shall be less than the person is receiving upon attainment of the

person's normal retirement date.