Date of Adoption: August 3, 1999.

Purpose: To amend the department's rules implementing the law codified in chapters 41.26 and 41.50 RCW in order to make those rules consistent with amendments and to conform to clear rule writing standards.

Citation of Existing Rules Affected by this Order: Amending WAC 415-104, WAC 415-104-035, 415-104-045, 415-104-050, 415-104-060, 415-104-070, 415-104-080, 415-104-090, 415-104-125, 415-104-135, 415-104-145, 415-104-165, 415-104-175, 415-104-211, 415-104-215 and 415-104-299; and WAC 415-105, WAC 415-105-010, 415-105-020, 415-105-030, 415-105-040, 415-105-050, 415-105-060, 415-105-070, 415-105-080, 415-105-090, 415-105-100, 415-105-110, 415-105-120, 415-105-140, 415-105-150, 415-105-160, 415-105-170, and 415-105-180.

Statutory Authority for Adoption: RCW 41.50.050.

Adopted under notice filed as WSR 99-13-166 on June 22, 1999.

Changes Other than Editing from Proposed to Adopted Version: After the proposed version was filed, we clarified WAC 415-104-090, 415-104-135, 415-105-040, 415-105-090, 415-105-100, and 415-105-110 in response to input from stakeholders and the Attorney General's Office.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 2, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 30, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 3, Amended 0, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0. Effective Date of Rule: Thirty-one days after filing.

August 3, 1999

John Charles

Director

OTS-3212.2

AMENDATORY SECTION(Amending Order 87-4, filed 3/11/87)

WAC 415-104-035
Jurisdiction of director.

(((1))) The director ((has no jurisdiction to review the propriety of a disability board finding that the member's disability was incurred in the line of duty under RCW 41.26.120 or not incurred in the line of duty under RCW 41.26.125.  If a member is granted disability retirement subsequent to a disability board's denial of disability, the director shall remand the matter to the disability board to make a finding of whether the disability was incurred in the line of duty.

(2) The director has no jurisdiction to review a disability board determination regarding)) or the director's designee (director, designee or DRS) does not have authority to review local disability board findings or decisions regarding:

(1) Whether a member’s disability was incurred in the line of duty under RCW 41.26.120 or not incurred in the line of duty under RCW 41.26.125; or

(2) A member's right to the employer's payment for medical services pursuant to RCW 41.26.030(22) and((/or)) 41.26.150.

[Statutory Authority: RCW 41.50.050(5) and RCW 41.50.090.  87-07-016 (Order 87-4), § 415-104-035, filed 3/11/87.]

Any person aggrieved by ((a)) the decision ((or order of the)) of a local disability board ((denying disability leave, disability retirement, or cancelling a previously granted disability retirement allowance must submit a notice of appeal to the director)) may appeal the decision if it:

(1) Denies disability leave;

(2) Denies disability retirement; or

(3) Cancels a previously granted disability retirement.

The written notice of appeal must be submitted to DRS within thirty days in accordance with RCW 41.26.200.

[Statutory Authority: RCW 41.50.050(5) and RCW 41.50.090.  87-07-016 (Order 87-4), § 415-104-045, filed 3/11/87.]

((After the director has reviewed the disability board's decision pursuant to the provisions of RCW 41.26.120 or 41.26.125, he shall serve a copy of his decision on the disability board, the employer, and the applicant.  If the director's decision is adverse to the applicant, he shall notify the applicant of his/her right to appeal by filing a notice for hearing.)) Under RCW 41.26.120(3) and 41.26.125(3), DRS must review a disability board's order to grant a disability retirement allowance. DRS must:

(1) Affirm (approve) the board’s decision; or

(2) Remand (send back) the case for further proceeding; or

(3) Reverse (deny) the board’s decision.

DRS must serve a copy of the decision on the applicant, employer, and disability board. DRS must notify the applicant of the right to file a notice for hearing (an appeal under RCW 41.26.200) if the DRS decision denies the disability retirement allowance.

[Statutory Authority: RCW 41.50.050(5) and RCW 41.50.090.  87-07-016 (Order 87-4), § 415-104-050, filed 3/11/87.]

((Appeal from decisions of the local disability boards will be reviewed on the basis of the record established by the disability board and materials appearing in the records of the department of retirement systems.  The director shall act on such appeals as follows:

(1) Affirmance; or

(2) Remand for further proceedings; or

(3) Reversal and remand.)) DRS will review the appeal based on the record established by the disability board and materials appearing in the records of the department of retirement systems. DRS must:

(1) Affirm (approve) the board's decision; or

(2) Remand (send back) the case for further proceeding; or

(3) Reverse (deny) the board's decision.

[Statutory Authority: RCW 41.50.050(5) and RCW 41.50.090.  87-07-016 (Order 87-4), § 415-104-060, filed 3/11/87.]

((The parties to a de novo hearing held pursuant to RCW 41.26.220 shall be the applicant, employer, and the department.))  The applicant, the employer, and the department are parties to a hearing held under RCW 41.26.221. The disability board may appear at such hearing only in support of the ((director's)) department's decision ((pursuant to RCW 41.26.220)).

[Statutory Authority: RCW 41.50.050(5) and RCW 41.50.090.  87-07-016 (Order 87-4), § 415-104-070, filed 3/11/87.]

The ((director or his representative, in his/her)) department has discretion((, may)) to require an ((application)) applicant for disability retirement to undergo a mental and/or physical examination prior to the hearing to be held pursuant to RCW ((41.26.220)) 41.26.221.  The cost of such examination is the responsibility of the department.

[Statutory Authority: RCW 41.50.050(5) and RCW 41.50.090.  87-07-016 (Order 87-4), § 415-104-080, filed 3/11/87.]

((Upon an appeal from the decision and order of the director to the superior court pursuant to RCW 41.26.210, the appealing party within thirty days from the decision and order of the director must perfect his appeal by serving notice of appeal on the director and filing the notice of appeal together with proof of service with the clerk of the superior court.  The service and the filing together with proof of service of the notice of appeal within thirty days shall be jurisdictional.)) Any party aggrieved by a DRS final decision and order issued under RCW 41.26.211 may petition for judicial review within thirty days after the decision and order was mailed. Any party wishing to perfect a superior court appeal must comply with RCW 34.05, the Administrative Procedure Act.

[Statutory Authority: RCW 41.50.050(5) and RCW 41.50.090.  87-07-016 (Order 87-4), § 415-104-090, filed 3/11/87.]

(1) At the time of a member's application for retirement, the department does not have all information necessary to make a final computation of the member's retirement allowance. The department shall compute an interim retirement allowance that shall be paid to the member until the department's final computation of the member's retirement allowance. The interim retirement allowance is an initial, estimated computation of the retiree's retirement allowance subject to adjustment by the department based upon subsequent review of information provided by the member's employer.

(2) In computing the interim retirement allowance, the department may, subject to later correction, consider only the amount of the member's salary actually reported by the employer up to the date of the interim computation, but may impute the member's earned service credit for the same period.

(3) Every employer of a member who applies for retirement shall provide the department with a final compensation report for that member. The report shall be completed on a form provided or approved by the department.

(4) Following the department's computation of the interim benefit and receipt of the employer final compensation report, earnings history, and any additional information requested by the department, the department will complete a final computation of the member's retirement allowance. The department's final computation may increase, decrease, or leave unchanged the amount of the interim retirement allowance computed pursuant to subsection (1) of this section.

(5) Pursuant to RCW 41.50.130, either before or after the department's final computation of the member's retirement allowance as provided in subsection (4) of this section, the department may adjust a member's retirement allowance to correct any error in retirement system records. For purposes of this subsection, errors in retirement system records include, but are not limited to, the following:

(a) Applying an incorrect retirement allowance formula in computing the retirement allowance;

(b) Including service that is not creditable to the member;

(c) Including payments that do not constitute basic salary to a member in the member's retirement allowance computation, or excluding basic salary not reported by an employer;

(d) Benefit overpayments and underpayments;

(e) Including an individual in the membership of the retirement system or plan who is not entitled to such membership;

(f) Excluding an individual from membership in the retirement system or plan who is entitled to such membership.

[]

(1) ((Every order of a disability board determining that an applicant's disability has ceased pursuant to RCW 41.26.130(3) shall be reviewed by the director, or his designated representative.  The director may affirm or reverse the order or remand the matter for further proceedings.

(2) A retiree may appeal the disability board determination that a disability has not ceased to the director pursuant to the provisions of RCW 41.26.140(6).)) Under the provisions of RCW 41.26.135, DRS must review a disability board determination that an applicant's disability has ceased pursuant to RCW 41.26.130(3). DRS must:

(a) Affirm (approve) the board's decision; or

(b) Remand (send back) the case for further proceedings; or

(c) Reverse (deny) the board’s decision.

(2) A retiree aggrieved by a decision of the local disability board that the disability has not ceased may appeal the determination to the director. The written notice of appeal must be submitted to DRS within thirty days as provided by RCW 41.26.140(6).

[Statutory Authority: RCW 41.50.050(5) and RCW 41.50.090.  87-07-016 (Order 87-4), § 415-104-125, filed 3/11/87.]

((Before appealing to the superior court, any)) A person aggrieved by:

(1) The director's ((final)) decision on review of the local board determination; or

(2) The director's ((final)) decision after review of the record on appeal ((shall)) must invoke the director's jurisdiction by filing a notice for hearing in accordance with RCW ((41.26.210)) 41.26.211 and WAC 415-08-020 before they can appeal to the superior court.  Such hearing shall be in accordance with RCW ((41.26.220)) 41.26.221.

[Statutory Authority: RCW 41.50.050(5) and RCW 41.50.090.  87-07-016 (Order 87-4), § 415-104-135, filed 3/11/87.]

The director or his representative, in his/her discretion, may require a disability retiree to undergo a mental and/or physical examination prior to the hearing to be held pursuant to RCW ((41.26.220)) 41.26.221.  The cost of such examination is the responsibility of the department.

[Statutory Authority: RCW 41.50.050(5) and RCW 41.50.090.  87-07-016 (Order 87-4), § 415-104-145, filed 3/11/87.]

((When a disability board determines that a retiree's disability has ceased, the department shall continue to pay monthly benefits: Provided, however, That)) The department will continue to pay monthly benefits when a disability board determines that a retiree's disability has ceased until there is a final determination from which no appeal is taken. The department ((shall)) will pay either the ((member's)) retiree's monthly service retirement allowance or monthly disability retirement allowance, whichever is less((, until there is a final determination from which no appeal is taken)).  Any retroactive adjustment ((that may be necessary)) required as the result of the final determination ((shall)) will be made after the appeal period has passed.

[Statutory Authority: RCW 41.50.050(5) and RCW 41.50.090.  87-07-016 (Order 87-4), § 415-104-165, filed 3/11/87.]

In comparing the ((member's)) disability retirement allowance and ((his/her)) the service retirement allowance as required by RCW 41.26.130(3), the department ((shall calculate the service retirement allowance using a final average salary calculated as follows:))

((On the date the disability ceased, the average of the greatest basic monthly rate of salary or wages (basic salary) that was paid or would have been paid to the member had he/she been in "active service" (employed) during any consecutive twenty-four month period within the member's last ten years of service for which service credit was given (including periods of disability leave and disability retirement).))

((The initial calculation of)) must:

(1) Compute the service retirement allowance using a final average salary calculated as follows:

(a) The department shall first calculate the greatest basic salaries that were or would have been payable to such member during any consecutive twenty-four month period within such member's last ten years of service for which service credit is allowed;

(b) The department shall then divide the total basic salaries during the selected twenty-four month period by twenty-four to compute the final average salary.

(2) Compute the service retirement allowance. The service retirement allowance does not include any cost-of-living increases that would have been granted if the service retirement allowance had been in effect during the period of disability retirement.

(3) Compare the service retirement allowance ((is then compared)) to the monthly disability retirement allowance ((amount)) that the member was receiving on the date that the disability ceased.

[Statutory Authority: RCW 41.50.050(5) and RCW 41.50.090.  87-07-016 (Order 87-4), § 415-104-175, filed 3/11/87.]

(1) A member, if married, must provide the spouse's written consent to the option selected under WAC 415-104-215.  If a married member does not provide spousal consent, the department will pay the retired member a joint and one-half survivor benefit allowance and record the member's spouse as the survivor, in compliance with RCW 41.26.460(2).

(2) Spousal consent is not needed to enforce a marital dissolution order requiring the department to pay an ex-spouse under RCW 41.50.790.

(3) "Spousal consent" means that the married member's spouse consents to the retirement option selected by the member.  The spouse's notarized signature on a completed retirement application constitutes spousal consent.

[Statutory Authority: RCW 2.10.146, RCW 41.26.460, RCW 41.32.530, RCW 41.50.050, RCW 41.32.785, RCW 41.40.188 and RCW 41.40.660.  96-01-047, § 415-104-211, filed 12/14/95, effective 1/14/96.  Statutory Authority: RCW 34.05.050 and 1990 c 249.  91-03-014, § 415-104-211, filed 1/7/91, effective 2/7/91.]

RCW 41.26.460 enables the department to provide retiring members with four retirement benefit options.  The member must choose an option when applying for service or disability retirement.

(1) Option One (standard allowance). The department pays the retiree a monthly retirement allowance actuarially based solely on the single life of the member, in accordance with RCW 41.26.430 (service) or 41.26.470 (disability).  When the retiree dies, all benefits cease.  Any remaining balance of the retiree's accumulated contributions will be paid to:

(a) The retiree's designated beneficiary; or if none, to

(b) The retiree's surviving spouse; or if none, to

(c) The retiree's legal representative.

The member must designate a beneficiary at the time of retirement by filing a completed and notarized form provided by the department.

(2) Benefit options with a survivor feature. A retiring member is allowed to select from several retirement options which create an actuarially equivalent benefit that includes a survivor feature.  The survivor feature entitles the survivor to receive a monthly allowance after the retiree dies.  If the member chooses one of the survivor options, the monthly benefit the member will receive is actuarially reduced to offset the cost of the survivor feature.  After the retiree dies, the department pays the survivor an allowance for the duration of his or her life.  If the retiree and the survivor both die before the retiree's accumulated contributions are exhausted, the remaining balance is retained in the retirement fund.

(a) Option Two (joint and whole allowance).  When the retiree dies, the department pays the survivor a monthly retirement allowance equal to the gross monthly allowance received by the retiree.

(b) Option Three (joint and one-half allowance).  When the retiree dies, the department pays the survivor one-half of the amount of the retiree's gross monthly retirement allowance.

(c) Option Four (joint and two-thirds allowance).

(i) This subsection applies to members retiring on or after January 1, 1996.

(ii) When the retiree dies, the department pays the survivor two-thirds (66.667%) of the retiree's gross monthly retirement allowance.

(3) If a member retires on or after June 6, 1996, the department is required to pay an ex-spouse survivor benefits pursuant to a marital dissolution order that complies with RCW 41.50.790.

(4) Benefit increases when survivor predeceases retiree (pop-up provision).

(a) This section applies to members retiring on or after January 1, 1996, who select Option Two, Three, or Four.

(b) If the survivor dies before the retiree, the retiree's monthly retirement allowance increases, effective the first day of the following month, to:

(i) The amount that would have been received had the retiree chosen Option One; plus

(ii) Any cost-of-living adjustments the retiree received prior to the survivor's death based on the original option selection.

(c) Pop-up recalculation example:

Plan Two:

Agnes retires in 1996 (Year 0).  She would like Beatrice, her daughter, to receive a monthly allowance after Agnes dies.  Therefore, Agnes selects a retirement benefit option with a survivor feature.  As a result her monthly allowance is reduced from $2,000 (standard allowance) to $1,750.  Unfortunately, Beatrice dies in January 2001 (Year 5).  Under the "pop-up" provision, Agnes' monthly benefit will increase to $2,191.05, the amount she would have received had she chosen Option One (standard allowance) plus her accumulated COLA's

Year	Option One (Standard Allow.)	Survivor Option (2,3,4) plus COLAs	COLA incr. (3% max)		$ Increase
0 (1996)	2,000.00	1,750.00	(inelig.)		0.00
1 (1997)		1,750.00	.02		35.00
2 (1998)		1,785.00	.03		53.55
3 (1999)		1,838.55	.025		45.96
4 (2000)		1,884.51	.03		56.54
5 (2001)	2,000.00	1,941.05	—		—
			Total COLA's		191.05
Original Option One Benefit Amount		+Total COLA's		=New Benefit Amount
$2000		+$191.05		=$2,191.05*

*In the future (i.e., Year 5), Agnes' COLA will be based on the increased benefit amount ($2,191.05).

(d) If the survivor dies and the retiree's benefit increases under this section, and thereafter the retiree also dies before all contributions are exhausted, the remaining balance is retained by the retirement fund.

(((4))) (5) Any retiree who retired before January 1, 1996, and who elected to receive a reduced retirement allowance under subsection (2) of this section is entitled to receive a retirement allowance adjustment if the retiree meets the following conditions:

(a) The retiree's designated beneficiary predeceases or has predeceased the retiree; and

(b) The retiree provides the department proper proof of the designated beneficiary's death.

The retiree is not required to apply for the increased benefit provided in this subsection. The adjusted retirement allowance will be effective on July 1, 1998, or the first day of the month following the date of death of the designated beneficiary, whichever comes last. The adjustment is computed as described in RCW 41.26.460 (3)(c) for Plan 2 retirees.

(6) Survivor. For the purposes of this provision, "survivor" means a person nominated by the member to receive a monthly benefit allowance after the member dies.  A member nominates the survivor at the time of retirement by filing a completed and notarized form provided by the department.

[Statutory Authority: RCW 2.10.146, RCW 41.26.460, RCW 41.32.530, RCW 41.50.050, RCW 41.32.785, RCW 41.40.188 and RCW 41.40.660.  96-01-047, § 415-104-215, filed 12/14/95, effective 1/14/96.  Statutory Authority: RCW 34.05.050 and 1990 c 249.  91-03-014, § 415-104-215, filed 1/7/91, effective 2/7/91.]

The following table is provided as a quick reference guide to help you characterize payments under LEOFF Plan I and LEOFF Plan II.  Be sure to turn to the referenced rule to ensure that you have correctly identified the payment in question.  The department determines basic salary based upon the nature of the payment, not the name applied to it.  See WAC 415-104-311 (Plan ((I)) 1) and WAC 415-104-360 (Plan ((II)) 2).

Type of Payment	LEOFF I Basic Salary?	LEOFF II Basic Salary?
Additional Duty Pay	Yes - WAC 415-104-3205	Yes - WAC 415-104-360
Allowances (i.e. uniform)	No - WAC 415-104-3404	No - WAC 415-104-390
Basic Monthly Rate	Yes - WAC 415-104-3200	Yes - WAC 415-104-360
Cafeteria Plans	No - WAC 415-104-3303	Yes - WAC 415-104-367
Deferred Wages Attached to Position	Yes - WAC 415-104-3201(1)	Yes - WAC 415-104-363(1)
Deferred Wages not attached to a Position	No - WAC 415-104-3306	No - WAC 415-104-363(2)
Disability Payments	No - WAC 415-104-340	No - WAC 415-104-380
Education Attainment Pay	No - WAC 415-104-3301	Yes - WAC 415-104-375
Employer taxes/contributions	No - WAC 415-104-3401	No - WAC 415-104-383
Fringe Benefits	No - WAC 415-104-3402	No - WAC 415-104-385
Illegal Payments	No - WAC 415-104-3403	No - WAC 415-104-387
Leave Cash Outs/Severance	No - WAC 415-104-3304	No - WAC ((415-104-400)) 415-104-401
Longevity	Yes - WAC 415-104-311	Yes - WAC 415-104-375
Overtime	No - WAC 415-104-3305	Yes - WAC 415-104-370
Paid Leave	Yes - WAC 415-104-3203	Yes - WAC 415-104-373
Payments in Lieu of Excluded Items	No - WAC 415-104-350	No - WAC 415-104-405
Performance Bonuses	No - WAC 415-104-3302	Yes - WAC 415-104-377
Retroactive Salary Increase	Yes - WAC 415-104-3202	Yes - WAC 415-104-365
Reimbursements	No - WAC 415-104-3404	No - WAC 415-104-390
Retirement or Termination Bonuses	No - WAC 415-104-3406	No - WAC 415-104-395
Shift Differential	Yes - WAC 415-104-3204	Yes - WAC 415-104-379
Special Salary or Wages	No - WAC 415-104-330	Yes - WAC 415-104-375
Standby Pay	No - WAC 415-104-3405	No - WAC 415-104-393
Tuition/Fee Reimbursement	No - WAC 415-104-3404	No - WAC 415-104-390
Worker's Compensation	Not Applicable	No - WAC 415-104-380

[Statutory Authority: RCW 41.50.050 and RCW 41.50.055.  97-01-016, § 415-104-299, filed 12/6/96, effective 1/6/97.]

OTS-3213.3

AMENDATORY SECTION(Amending Order 81-03, filed 11/16/81)

WAC 415-105-010
Preamble.

((In adopting the rules contained herein, it is not the intention of the director of department of retirement systems to in any way weaken the existing powers and practices of any local disability board.  Further, it is not the intent of these rules to preclude adoption or continuation of any procedures in addition to those set forth herein by any local disability board.)) These rules are not intended to weaken the authority of the local disability board nor to prevent the disability board from adopting additional rules or procedures necessary for performing its duties.

[Statutory Authority: RCW 41.26.115.  81-23-032 (Order 81-03), § 415-105-010, filed 11/16/81.]

These rules are adopted ((pursuant to)) under the authority of section 1, chapter 294, Laws of 1981 (([)) ( RCW 41.26.115((] to implement RCW 41.26 and))) to provide a basis for uniform administration of disability retirement matters.  ((They shall)) These rules must be followed by each disability board.

[Statutory Authority: RCW 41.26.115.  81-23-032 (Order 81-03), § 415-105-020, filed 11/16/81.]

(1) ((A duly licensed and practicing physician or physicians shall be appointed by the board.  No disability retirement shall be approved by the board without prior examination of the claimant by the board doctor or a specialist of his selection, on or near the expiration of the disability leave period.  The board doctor shall render such other medical service as may be requested by the board.

(2) In order to carry out the duties of this position, each physician appointed or approved by the board is required to be knowledgeable concerning the duties, functions and general demands required of the employee being examined.  The disability board shall furnish to the examining physician the job and/or position description of the applicant.

(3) Reexamination of any member on disability retirement shall be conducted by a board appointed or approved physician.)) Each board must appoint a board doctor. The board must not approve a disability retirement without prior examination of the applicant by the board doctor or a specialist selected by the board doctor. The board doctor must be a practicing physician licensed under the provisions of RCW 18.71; or, if the board doctor practices outside the state of Washington, then he/she must be a physician licensed by the state in which he/she practices.

(2) The board doctor and any selected specialist must be knowledgeable about the normal, routine duties, functions and general demands of the position the applicant held at the time the applicant discontinued service.

(3) The board must furnish the examining physician with the applicant's job and/or position description. The board must inform the physician that the board's decision to grant or deny a disability retirement allowance is to be measured against the actual, normal, routine duties that the applicant performs.

(4) The board doctor or approved specialist will provide medical services requested by the board including examinations pursuant to RCW 41.26.120(1); 41.26.125(1); 41.26.130(5); and 41.26.150 (1)(a).

[Statutory Authority: RCW 41.26.115.  81-23-032 (Order 81-03), § 415-105-030, filed 11/16/81.]

(1) ((Following receipt of an application for disability benefits, the board shall review all relevant information pertaining to the question of the applicant's fitness for duty, and if, in the opinion of the majority of the board, the evidence supports the proposition that the member is unfit for duty, such member shall be granted disability leave, unless such leave is waived pursuant to RCW 41.26.120(4).  In considering such application, the board shall consider the duties of the position, and any other evidence that is relevant.

(2) The burden of proving the existence of a disabling condition, and whether or not the condition was incurred in line of duty, shall be upon the applicant.

(3) The minimum medical and health standards previously promulgated by the state retirement board for entry or reentry into LEOFF System membership were provided only to safeguard the fiscal integrity of the pension system and are not the applicable standards for any other purpose.

(4) Each application shall be accompanied by a list identifying by name any physician who had been contacted within the last six months for the illness or injury for which disability is claimed.

(5) In the event the board finds that insufficient information is available to make a determination, the matter may be continued to the next regular board meeting or be set for consideration at a special meeting.  The board shall also advise the member of the additional information needed, and of the member's obligation to provide additional information and the deadline date by which such information must be provided.

(6) The board shall be authorized to demand the appearance of the member and to request the appearance of such other persons as it deems appropriate.  It shall be incumbent upon each member obtaining medical evaluations to be used in connection with such disability leave and subsequent evaluations, to advise each and every examining physician: that such evaluation is being conducted at the direction of the board; that any reports relating thereto are for the benefit of the board; that the doctor-patient privilege may not be invoked with respect thereto; and that the physician may be called upon by the board to testify as to his findings.)) The applicant must prove the existence of:

(a) A disabling condition; and

(b) Whether or not the condition was incurred in the line of duty.

(2) The application must include the name of each physician contacted by the applicant within the last six months for the disabling illness or injury. The applicant must advise each examining physician that:

(a) The board has requested the evaluation;

(b) Any reports of the evaluation will be reviewed by the board;

(c) That the doctor-patient privilege may not be invoked with respect to the evaluation; and

(d) The physician may be requested by the board to testify as to his or her findings.

(3) The disability board is authorized to demand the appearance of the applicant and to request the appearance of any other persons it deems appropriate.

(4) Following receipt of an application for disability benefits, the board must:

(a) Review the application and all relevant information about the applicant's fitness for duty;

(b) Consider the duties of the applicant's position; and

(c) Consider any other pertinent evidence.

The board must either grant or deny disability leave based on the evidence or continue the matter pending receipt of additional information.

(5) If the information before the board is insufficient to determine whether or not the applicant is disabled, the matter can be continued to the next regular meeting or set for consideration at a special meeting. The board must advise the applicant of:

(a) The additional information needed;

(b) The applicant's obligation to provide the additional information; and

(c) The date by which the information must be provided.

(6) The applicant may waive any or all of the disability leave granted pursuant to RCW 41.26.120(4) and 41.26.125(4).

(7) The board is not to use the minimum medical and health standards (MMHS) to determine whether or not an applicant is unfit for duty. The MMHS established pursuant to RCW 41.26.046 govern entry or reentry into LEOFF System membership and were provided only to safeguard the fiscal integrity of the pension system.

[Statutory Authority: RCW 41.26.115.  81-23-032 (Order 81-03), § 415-105-040, filed 11/16/81.]

(1) ((Every applicant for disability retirement shall be reexamined during the fifth or sixth month of disability leave in order to determine his/her eligibility for disability retirement, with the following exception: If the applicant establishes that the disabling condition will be in existence for a period of at least six months and he/she voluntarily waives disability leave.  No applicant will be granted a disability retirement allowance unless the conditions imposed by this subsection are met.

(2) In the event the medical and other relevant evidence is inconclusive, the board may specify in written order a reasonable trial service period for return to duty in the same position held at the time of discontinuance of service to determine the member's fitness for active duty.  The reasonable length of such trial return to service shall be supported by medical evidence.  Such a trial return to service does not entitle the member to a second six-month period of disability leave for the same disability if, based upon this trial period of service, the member is found to be disabled.)) The board must have the applicant examined during the fifth or sixth month of disability leave. The examination is to be performed by the board doctor or a specialist selected by the board doctor. The board shall not approve the disability retirement without this examination unless:

(a) The applicant establishes that the disabling condition will exist for at least six months; and

(b) The applicant voluntarily waives disability leave.

(2) Following receipt of the examination report, the board must:

(a) Review the medical evidence and all relevant information about the applicant's fitness for duty;

(b) Consider the duties of the applicant's position; and

(c) Consider any other pertinent evidence.

The board must either grant or deny disability retirement based on the evidence or return the applicant to duty for a reasonable period of trial service.

(3) If the board cannot determine with reasonable certainty whether or not the applicant is disabled, the board may issue a written order that the applicant is to return to duty for a reasonable period of trial service to determine the applicant's fitness for active duty.

(a) The length of the trial service period must be supported by medical evidence.

(b) During the period of trial service the applicant is to return to the same duties in the same position held at the time of discontinuance of service.

(c) If the applicant is found to be disabled, the board is not to grant a second six-month period of disability leave, but is to return the applicant to disability leave status for the remainder, if any, of the initial six-month leave period.

[Statutory Authority: RCW 41.26.115.  87-07-015 (Order 87-3), § 415-105-050, filed 3/11/87; 81-23-032 (Order 81-03), § 415-105-050, filed 11/16/81.]

(1) ((If the evidence shows to the satisfaction of the board that the member is physically or mentally disabled from further performance of duty and that the disability has been continuous from the date of commencement of disability leave for a period of six months, the board shall enter its written decision and order, accompanied by appropriate findings of fact and conclusions of law in compliance with RCW 41.26.120 or 41.26.125.  Such written decision and order with supporting documentation shall thereafter be forwarded to the director, department of retirement systems, for review.  In the event a regular meeting of the board precedes by no more than 40 days the date at which the full six months will conclude and the evidence is clear that the disability can be expected to continue through the full six-month period, the board may make a finding of six months continuous disability prior to the actual conclusion of the six-month period, so as to eliminate unnecessary delay of receipt of retirement benefits.

(2) In order to qualify to receive a disability retirement allowance, the applicant will be required to prove that he or she is physically or mentally disabled to such extent that he or she is unable to discharge with average efficiency the duty of the position held at time of discontinuance of service: Provided, That no member shall be entitled to a disability retirement allowance if the appropriate authority advises that there is an available position for which the member is qualified and to which one of such grade or rank is normally assigned and the board determines that the member is capable of discharging, with average efficiency, the duties of the position.)) The applicant is required to prove that he or she is disabled and unable to perform with average efficiency the duties of the position held at the time of discontinuance of service.

(2) The board must determine, based on the evidence, that the applicant is disabled from performing his or her duties and the disability has been continuous since the beginning of the disability leave period.

(3) The board may make a finding of six months continuous disability prior to the actual conclusion of the six-month period if:

(a) The regular meeting of the board does not precede the end of the six-month disability leave period by more than forty days; and

(b) Medical evidence shows the disability is expected to continue through the full six-month period.

(4) The applicant is not entitled to a disability retirement allowance if:

(a) The employer advises the board that there is an available position for which the applicant is qualified and to which a person of the same grade or rank is normally assigned; and

(b) The board determines that the applicant is capable of discharging the duties of the position with average efficiency.

[Statutory Authority: RCW 41.26.115.  87-07-015 (Order 87-3), § 415-105-060, filed 3/11/87; 81-23-032 (Order 81-03), § 415-105-060, filed 11/16/81.]

((Every order of the disability board granting or denying a disability retirement allowance shall contain the following presented in clear and concise terms:

(1) Findings of fact supported by credible evidence sufficient to sustain the granting or denying of the disability retirement allowance.  When a disability retirement is granted, findings of fact shall include:

(a) Whether or not the disability was incurred in the line of duty.

(b) Whether or not the disability was incurred in other employment.

(c) Dates encompassing disability leave and/or dates relating to authorized trial basis return to duty; and, in the case of return to duty on a trial basis, the factual basis for such decision.

(d) Dates encompassing waiver of disability leave, if applicable; and that applicant established that such disability will be in existence for a period of six months.

(2) Conclusions of law in accordance with law on the basis of the facts in the case.

(3) Decision and order.)) (1) After granting or denying a disability retirement allowance, the board must enter a written decision and order that includes:

(a) Appropriate findings of fact supported by credible evidence sufficient to sustain the decision; and

(b) Conclusions of law.

(2) When a disability retirement allowance is granted, the decision and order and all supporting documentation must be sent to the director of the department of retirement systems.

(a) The accompanying findings of fact shall include at least the following:

(i) The applicant's length of service with the employer and the position held at discontinuance of service;

(ii) The names of the examining physicians and the dates of the examinations;

(iii) The nature of the disability;

(iv) Whether or not the disability was incurred in the line of duty;

(v) Whether or not the disability was incurred in other employment;

(vi) Dates encompassing disability leave;

(vii) Dates related to authorized return to duty on a trial basis and the factual basis for the decision; and

(viii) Dates encompassing waiver of disability leave, if applicable, and that applicant established that the disability will be continuous for at least six months.

(b) The supporting documentation shall include a copy of at least the following:

(i) The application for disability benefits showing the applicant's current mailing address;

(ii) The job description accurately reflecting the duties of the position the applicant held at discontinuance of service;

(iii) Employer statement(s), if any, relevant to the applicant's position and/or fitness for duty;

(iv) All medical and other evidence considered by the board; and

(v) The minutes and/or transcript of all meetings at which the applicant's disability status was considered.

[Statutory Authority: RCW 41.26.115.  87-07-015 (Order 87-3), § 415-105-070, filed 3/11/87; 81-23-032 (Order 81-03), § 415-105-070, filed 11/16/81.]

The disability board has the burden of proof in any proceeding to cancel a disability retirement allowance.

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The board need not rely solely on medical evidence in making its determination. To cancel a disability retirement allowance, the board must demonstrate that:

(1) The retiree is reasonably able to perform the ordinary duties of his or her former position or a position within the retiree's former rank with average efficiency; and

(2) There has been a material change in the circumstances upon which the retirement was based; and

(3) No other physical or mental disability now prevents the retiree from performing the ordinary duties of his or her position or rank.

The board may not cancel a disability retirement allowance based on a determination that the medical condition was incorrectly diagnosed at the time of the initial disability hearing. If the medical condition for which the retiree was granted disability retirement has improved, but the retiree is still not physically or mentally able to perform his or her duties with average efficiency, the retiree shall continue to receive the disability retirement allowance. The board must send a copy of all determinations and the examination reports and other evidence on which they are based to the department of retirement systems.

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((If the board denies disability leave or disability retirement or cancels a previously granted disability leave or retirement, the applicant shall be immediately notified and advised of the right to appeal such decision or order to the director of the department of retirement systems, pursuant to RCW 41.26.200.  Such notification shall be in writing and served by personal service or mail.  Provided, that written notice need not be given if applicant or his or her duly authorized representative is in attendance at the meeting or hearing and is advised of decision and of the right of appeal.)) (1) The board must immediately notify the applicant if the board:

(a) Denies disability leave or retirement; or

(b) Cancels a previously granted disability leave or retirement.

(2) The board must advise the applicant of his or her right to appeal the board's decision to the director of the department of retirement systems pursuant to RCW 41.26.200.

(3) Notification and advice must be in writing and served by personal service or mail unless the applicant or the applicant's authorized representative attends the meeting and is advised in person of the board's decision and the applicant's right to appeal.

[Statutory Authority: RCW 41.26.115.  81-23-032 (Order 81-03), § 415-105-080, filed 11/16/81.]

(1) ((In the event a member is placed on disability retirement, the board may determine whether or not the member is so disabled that no possibility exists for return to duty or that there is no possibility that rehabilitation could restore the member to fitness for duty.  Further, the board may at any point subsequent to retirement make such a determination provided a current (within ninety days) medical examination by the board physician or a specialist of his/her selection indicates that the retiree is so disabled that no possibility for recovery exists.  A copy of all such determinations shall be sent to the department of retirement systems.  Unless the board has made such a finding, the board's representative shall order a reexamination at six-month intervals and advise the board of the results thereof with a copy to the department of retirement systems: Provided, That such reexamination need not be conducted on a member over 49.5 years of age.  In the event the retired member is residing at a location more than 100 miles from his former place of employment, the member may be authorized to be examined by a physician in his immediate area, provided, however, such physician shall be first approved by the board and prior to such evaluation the examining physician shall be apprised of the basis upon which the examination is to be conducted and the issues to be addressed in the physician's evaluative report.

(2) In the event such evaluation discloses fitness to perform duties of the rank or position held by the member at the time of disability retirement, the member shall be entitled to a hearing before the board, and further consideration of the matter.  Such notice and hearing shall comply with the requirements of RCW 34.04.

(3) The hearing provided by RCW 41.26.140(2) is to be held, unless the retiree waives such hearing, prior to actual cancellation of a disability retirement allowance.

(4) The retirement allowance of any member who fails to submit to medical examination as provided herein shall be discontinued and in the event such refusal continues for one year, his retirement allowance shall be cancelled.  Failure of the member to affirmatively respond to the request for reexamination shall be deemed a continuing refusal.)) Every retiree under 49.5 years of age must be medically reexamined every six months by the board doctor or approved physician, except as provided in subsection (4) of this section.

(2) The retirement allowance of any retiree who fails to submit to a medical examination as required in subsection (1) of this section shall be discontinued until the retiree complies with the reexamination requirement. If the retiree continues for one year to refuse to undergo reexamination, the board shall cancel his or her retirement allowance.

(3) If the retiree resides more than one hundred miles from his or her former employer, the board may authorize the retiree to be examined by a physician in the retiree's local area. The board must approve the local area physician and provide him or her with information about the purpose of the examination and the issues to be addressed in the physician's report to the board.

(4) If the board doctor or approved physician finds that no possibility exists for the retiree's recovery and return to duty, the board may determine that subsequent medical examinations are not required. The determination may be made at the time of retirement or at any time thereafter, but must be based on a current (within ninety days) recommendation of the examining physician. The board must notify the department of retirement systems when it makes a determination of permanent disability. A copy of the physician's report must accompany the notice.

(5) If the examination shows that the retiree is fit to perform the duties of the rank or position held at retirement, the retiree shall be entitled to a hearing before the board. The notification and hearing shall comply with the requirements of the Administrative Procedure Act, RCW 34.05. Unless the retiree waives his or her right to the hearing, the board must hold the hearing before it can cancel the disability retirement allowance.

[Statutory Authority: RCW 41.26.115.  87-07-015 (Order 87-3), § 415-105-090, filed 3/11/87; 81-23-032 (Order 81-03), § 415-105-090, filed 11/16/81.]

These rules are adopted ((pursuant to)) under RCW 41.26.115 to implement the provisions of RCW 41.26.130(3) and 41.26.135 and establish procedures to be followed by the applicant and the disability board.  These rules apply only to a disability retiree ((over)) age fifty and older who seeks a determination that his/her disability has ceased.

[Statutory Authority: RCW 41.26.115.  87-07-015 (Order 87-3), § 415-105-100, filed 3/11/87.]

(1) When a disability retiree over age fifty believes that his/her disability has ceased, he/she may make application to cancel the disability retirement allowance.  Such application shall be made to the disability board that originally considered the application for disability retirement.

(2) The application must be in writing and contain the following information:

(a) The retiree's name, birthdate, Social Security number, mailing address, telephone number, former LEOFF employer, and the name and mailing address of the retiree's legal representative, if any;

(b) The nature of the disability and the date the disability ceased;

(c) The names, addresses and telephone numbers of all physicians and other health care practitioners who have been contacted by the retiree or his/her representative in the last year for medical care, consultation or evaluation;

(3) The application must be accompanied by the following documents:

(a) Copies of any written documents supporting the retiree's claim that his/her disability has ceased and that no other physical or mental disability now prevents the retiree from performing the ordinary duties of his/her position or rank;

(b) A copy of the local disability board order granting disability retirement if the original disability board order was summarily affirmed by the director or the LEOFF retirement board; or

(c) A copy of the director's order or the LEOFF retirement board's order if the director or the LEOFF retirement board entered the final order granting disability retirement.

[Statutory Authority: RCW 41.26.115.  87-07-015 (Order 87-3), § 415-105-110, filed 3/11/87.]

The retiree has the burden of proof in the proceedings before the disability board.

[Statutory Authority: RCW 41.26.115.  87-07-015 (Order 87-3), § 415-105-120, filed 3/11/87.]

(1) Before acting on an application, the disability board shall have the retiree examined by the board doctor as provided in WAC 415-105-030.  If the board doctor has seen the retiree before in any capacity except evaluation on behalf of the disability board, the board doctor ((shall)) must refer the retiree to another physician who has not seen the retiree in any capacity except evaluation on behalf of the disability board.

(2) Before the retiree is examined, the disability board ((shall)) must furnish the board doctor or other physician with a current job description for the rank or position held by the member at the time he/she was granted disability retirement and a copy of these regulations.

(3) The board doctor or other physician ((shall)) will examine the retiree to determine if he/she is able to perform with average efficiency the duties of the rank or position held by the retiree at the time of discontinuance of service and that he/she meets the requirements of WAC 415-105-130.

[Statutory Authority: RCW 41.26.115.  87-07-015 (Order 87-3), § 415-105-140, filed 3/11/87.]

((Upon the basis of)) (1) The board must review the application ((and)), the medical evaluation by the board doctor, and any other relevant evidence((,)). The ((disability)) board ((shall)) must determine whether the ((disability)) retiree has met the standards set out in WAC 415-105-130 and is physically and mentally capable of performing his/her duties with average efficiency.

(2) If ((it is determined)) the board determines that the retiree's disability has ceased, ((the board)) it shall enter its written decision and order ((accompanied by)) including appropriate findings of fact and conclusions of law ((evidencing compliance with the applicable statutes and regulations)).  The disability board must ((make a finding which specifies the date the disability ceased)):

(a) Enter a decision which specifies the date the disability retirement allowance will cease;

(b) Immediately send a copy of the decision and order to the department of retirement systems.

[Statutory Authority: RCW 41.26.115.  87-07-015 (Order 87-3), § 415-105-150, filed 3/11/87.]

These rules are adopted ((pursuant to)) under RCW 41.26.115 to implement the provisions of RCW 41.26.130(3) and establish procedures to be followed by the applicant and the disability board in cases in which the applicant is under age fifty and believes that his/her disability has ceased.

[Statutory Authority: RCW 41.26.115.  87-07-015 (Order 87-3), § 415-105-160, filed 3/11/87.]

A disability retiree under age fifty who believes that his/her disability has ceased may ((make application to the disability board which originally found the member to be disabled)) apply for a determination that the disability has ceased.  ((Such)) The application must be:

(a) Made to the disability board which originally found the member to be disabled; and

(b) In writing; and

(c) Contain the information ((set forth)) stated in WAC 415-105-110(2).

Thereafter, the rules and procedures ((set forth)) stated in WAC 415-105-120 through 415-105-140 shall be in effect.

[Statutory Authority: RCW 41.26.115.  87-07-015 (Order 87-3), § 415-105-170, filed 3/11/87.]

(1) ((Upon the basis of the application, the medical evaluation by the board doctor, and any other relevant evidence, the disability board shall determine whether the disability)) The board must review the application, the medical evaluation of the board doctor, and any other relevant evidence. The board must then determine whether the retiree has met the standards set out in WAC 415-105-130 and is physically and mentally capable of performing his/her duties with average efficiency.  If the board determines that the retiree's disability has ceased, both the retiree and the former employer shall be entitled to a notice and a hearing.  Both the notice and the hearing shall comply with the requirements of chapter ((34.04)) 34.05 RCW.

(2) After the hearing, the board ((shall)) must enter its written decision and order, ((accompanied by)) including appropriate findings of fact and conclusions of law((,)). The board order must either ((denying)) deny the retiree's application or ((cancelling)) cancel his/her disability retirement allowance and ((restoring)) restore him/her to duty pursuant to RCW 41.26.140(2).

(3) Any person aggrieved by a determination or order of a disability board that the applicant's disability has not ceased may file an appeal with the director pursuant to RCW 41.26.140(6).

[Statutory Authority: RCW 41.26.115.  87-07-015 (Order 87-3), § 415-105-180, filed 3/11/87.]