Preproposal statement of inquiry was filed as WSR 04-13-009.
Title of Rule and Other Identifying Information: This rule will implement RCW 41.26.470, which provides benefits for disabled LEOFF Plan 2 members. The department previously filed a CR-101 (WSR 04-13-009) and an emergency rule for LEOFF Plan 2 members who incur a duty-related disability. That notice advised interested persons that the department was planning to adopt rules for LEOFF Plan 2 members who incur disabilities that are not duty-related.
Hearing Location(s): Department of Retirement Systems, 6835 Capitol Boulevard, Conference Room 115, Tumwater, WA, on March 1, 2007, at 10:00 a.m.
Date of Intended Adoption: March 27, 2007.
Submit Written Comments to: Ceil Buddeke, Department of Retirement Systems, 6835 Capitol Boulevard, Conference Room 115, Tumwater, WA 98504-8380, e-mail email@example.com, fax (360) 664-3618, by 5:00 p.m. on February 28, 2007.
Assistance for Persons with Disabilities: Contact Ceil Buddeke by February 22, 2007, (360) 664-7307, TDD (360) 664-7291, TTY (360) 586-5450.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: This rule is intended as a companion rule to current WAC 415-104-480, governing benefits payable to LEOFF Plan 2 members who become disabled in the line of duty. This new rule explains who is eligible to apply for nonduty disability benefits, how the application process works, how the application will be evaluated, how disability benefits are paid, how a nonduty disability benefit may affect a service retirement benefit, and how a nonduty disability retirement benefit can be impacted by subsequent medical examination, death, or return to LEOFF service.
Reasons Supporting Proposal: 2006 HB 2932 amended RCW 41.26.470 to establish a catastrophic nonduty disability allowance for LEOFF Plan 2 members. This rule explains the details of that benefit.
Statutory Authority for Adoption: RCW 41.50.050(5).
Statute Being Implemented: RCW 41.26.470, as amended by 2006 HB 2932.
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: Department of retirement systems, governmental.
Name of Agency Personnel Responsible for Drafting: Zan Johnston, P.O. Box 48380, Olympia, WA 98504-8380, (360) 664-7049; Implementation and Enforcement: Dave Nelsen, P.O. Box 48380, Olympia, WA 98504-8380, (360) 664-7304.
No small business economic impact statement has been prepared under chapter 19.85 RCW. This rule does not have an impact on small businesses, as defined in RCW 19.85.020(1).
A cost-benefit analysis is not required under RCW 34.05.328. The department of retirement systems is not one of the agencies specified in RCW 34.05.328.
January 19, 2006 
Legal Services Manager
WAC 415-104-485 LEOFF nonduty disability benefits. This section applies to you if you are a LEOFF Plan 2 member who incurs a disability not in the line of duty. If your disability or injury was incurred in the line of duty, see WAC 415-104-480.
(1) Who is entitled to nonduty disability benefits? Any member of LEOFF Plan 2 who the department determines has:
(a) Incurred a physical or mental disability while not in the line of duty;
(b) Become totally incapacitated for continued employment in a LEOFF eligible position; and
(c) Separated from a LEOFF-eligible position due to the disability.
(2) How is "line of duty" defined? Line of duty means any action or activity occurring in conjunction with your employment or your status as a law enforcement officer or fire fighter and required or authorized by law, rule, regulations, or condition of employment or service.
(3) How do I apply for nonduty disability benefits? The department must receive:
(a) A completed three-part disability retirement application on the form provided by the department.
(i) Part 1: Disability retirement application. You, or a person with legal authority to apply on your behalf, must complete and sign the application. If you are married, your spouse must sign consenting to the retirement payment option you choose. Your signature(s) must be notarized.
(ii) Part 2: Employer's statement and report. Your employer must complete, sign and return it directly to the department.
(iii) Part 3: Medical report. You must complete Section 1. The remainder must be completed and signed by a person licensed according to Washington state law to practice medicine and surgery, osteopathic medicine and surgery, chiropractic, clinical psychology, podiatry, dentistry, or optometry;
(b) Additional information requested by the department; and
(c) Any other material you want the department to consider.
(4) Is there a time limit for filing an application for nonduty disability benefits? No. There is no time limit for applying for benefits. However, if you have separated from employment, your application must be based on your condition at the time of separation.
(5) What evidence will the department use to determine whether I am entitled to benefits under this section? The department will consider any relevant information submitted by you or your employer, or otherwise available to the department, including:
(a) Information and determinations by the department of labor and industries (L&I) or a self-insurer;
(b) Medical, vocational, and other information about your disability;
(c) Your job description;
(d) Your membership records, maintained by the department; and
(e) Any other relevant evidence.
(6) What would disqualify me for nonduty disability benefits? You are not eligible for nonduty disability benefits if any of the following apply:
(a) Your application does not provide adequate proof that you are totally incapacitated for continued employment in a LEOFF-eligible position;
(b) Your disability is the result of your criminal conduct committed after April 21, 1997. See RCW 41.26.061.
(7) Who decides if I meet the requirements for benefits under this section? The LEOFF plan administrator.
(8) May I petition a decision made by the LEOFF plan administrator? Yes. If the LEOFF plan administrator denies your request for a disability benefit under this section, you may petition for review under chapter 415-04 WAC.
(9) What are the nonduty disability retirement benefits? As a nonduty disability retiree, your retirement benefit is a monthly allowance equal to:
(a) Two percent times your final average salary times your service credit years. This allowance will be actuarially reduced to reflect the difference in age at the time of disability retirement and age 53. If you qualify for alternative early retirement per RCW 41.26.430(3), your reduction will be three percent per year before age 53.
(b) If you choose a benefit option with a survivor feature as described in WAC 415-104-215, your monthly allowance will be actuarially reduced to offset the cost. The factors used to determine the amount of reduction are in WAC 415-104-380.
|Example:||Tom incurs a nonduty disability at age 42 after twenty years of service. His final average salary is $5,000 per month. Tom's wife is also age 42. He chooses Benefit Option Two so that, after his death, his wife will receive a monthly allowance equal to the gross monthly allowance he was receiving. See WAC 415-104-215 (2)(b).|
Nonduty disability allowance $5,000 x 2% x 20 years = $2,000
Allowance after the actuarial reduction for early retirement $2,000 x 0.39 = $780
Allowance after the actuarial reduction for Option Two (survivor feature) $780 x .87 = $679
(10) Are my nonduty disability benefits taxable? The department reports disability benefits to the Internal Revenue Service as required by federal law. Based on current federal law, your benefit may be taxable. You should consult with your own tax advisor regarding all questions of federal or state income, payroll, personal property or other tax consequences regarding any payments you receive from the department.
The department does not:
(a) Guarantee that payments are exempt from federal income tax;
(b) Guarantee that it was correct in withholding or not withholding taxes from benefit payments to you;
(c) Represent or guarantee that any particular federal or state income, payroll, personal property or other tax consequence will occur because of its determination; or
(d) Assume any liability for your compliance with the Internal Revenue Code.
(11) If I previously retired for service under the alternative early retirement provisions of RCW 41.26.430(3), but I qualified for a disability retirement, can I apply for duty or nonduty disability benefits? Yes. If you retired under the alternative early retirement provisions of RCW 41.26.430(3) on or before January 1, 2001, you can apply to retire under the disability provisions of RCW 41.26.470. Your benefit will be reduced by three percent per year before age 53 instead of actuarially reduced by the early retirement factors in WAC 415-02-320.
(12) If I previously retired for disability but was otherwise qualified for a service retirement under the alternative early retirement provisions of RCW 41.26.430(3), can I have my benefit recalculated to reflect a three percent reduction instead of being actuarially reduced by the early retirement reduction factors in WAC 415-102-320? Yes. If you retired on or after January 1, 2001, and met the requirements of RCW 41.26.430(3), you can have your disability benefit recalculated under those provisions.
(13) When does a nonduty disability retirement benefit end? The department may require comprehensive medical examinations to reevaluate your eligibility for continued disability benefits according to the provisions of RCW 41.26.470(2). Your nonduty disability benefit will cease if:
(a) You return to work in a LEOFF-eligible position; or
(b) Medical examination reveals that you are no longer totally incapacitated for employment in a LEOFF-eligible position and you are no longer entitled to workers' compensation benefits under Title 51 RCW.
(14) If I retire for a nonduty disability and die, will my survivor beneficiary receive a monthly allowance? If you choose a benefit option with a survivor feature under WAC 415-104-215(2) at the time of retirement, your survivor beneficiary will receive a monthly allowance after your death.
(15) What happens if I return to a LEOFF-eligible position? If you return to a LEOFF-eligible position, your monthly allowance will stop.
(16) If I return to a LEOFF-eligible position, how will my future retirement benefit be affected? When you reretire, your monthly allowance will be calculated pursuant to RCW 41.26.500 and WAC 415-104-111.