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What is the Reconsideration Process of Federal Disability Retirement and What Are My Options?
Receiving a decision from the Office of Personnel Management (OPM) denying your application for FERS Disability Retirement Benefits can be a huge disappointment. However, the initial denial decision is not the final word on your application. You have the option to appeal the denial decision through the reconsideration process.
The first step of the Request for Reconsideration process is the most crucial one.
You must notify OPM of your intent to request reconsideration within 30 days from the date of the denial decision. Included with the initial denial decision is a form titled “Request for Reconsideration of Disability Retirement.” OPM must receive the completed form within 30 days of the denial decision. OPM only accepts late requests in extraordinary circumstances, and requires documentation to show why you were unable to file on time.
The “Request for Reconsideration of Disability Retirement” form should have your CSA Number and date of the denial decision. Please check to make sure the CSA Number listed matches the letter you received. The form includes the option to request that OPM make a new decision on the file as it exists, or for you to take the opportunity to file new evidence. There is almost always additional documentation that has been generated during the several months that the FDR decision was pending. If you are providing additional evidence, and already have it, you can submit with the Request for Reconsideration form. More likely than not, you will need beyond the 30-day time period allowed to file the Request for Reconsideration Form. OPM provides the option to request an additional 30 days to provide updated information.
Once you submit the Request for Reconsideration form, you should receive a letter from OPM acknowledging receipt of your request, and providing a deadline to submit further documentation if you chose to request additional time. Be sure to make note of any new deadlines.
The next portion of the Reconsideration Process is to gather and obtain documentation that can help you prove to OPM why the initial decision was incorrect, and that you are eligible for FERS Disability Retirement Benefit.
You have the right to request a copy of your claim file, which will include the documentation that OPM used in making the initial decision. This is helpful for the reconsideration process, because you can see additional documentation provided by your Agency that you may have not received. You should also carefully review the claim file to see if there is any documentation that you submitted to OPM that is not included. If it is not in the claim file, it is likely that it was not available for the Medical Specialist who made the initial decision to consider.
If you have since been removed from your position or received a decision from the Social Security Administration regarding your application for Social Security Disability (SSD) benefits since you submitted FDR application, it is essential to provide that information to OPM during the reconsideration process.
If you have been approved for Social Security Disability (SSD) benefits since submitting your initial application, you should provide OPM with a copy of the Notice of Award. Even if your application for SSD is denied, the Social Security Administration could still make a finding that you are unable to perform your past relevant work. This is similar to the definition of disability for FDR benefits, which requires only that you are unable to perform the essential duties of your own position. Another important piece of documentation to provide to OPM is documentation of a medical removal. If you have been removed for medical inability to perform the duties of your position, be sure to provide OPM with a copy of the Notice of Proposed Removal and Final Removal.
Your matter will be assigned to a new medical specialist at OPM to review your file and make an updated decision. As during the initial application process, OPM may reach out to you to request additional or outstanding documentation. Be sure to timely respond to all request from OPM to the best of your ability.
As with the initial application, OPM will send you a letter via mail notifying you of the decision regarding your request for reconsideration.
If, after reviewing your file, OPM decides the initial decision was correct, it will deny your request for reconsideration. Fortunately, your options do not end with the denial of your request for reconsideration. You will then have the opportunity to appeal to the Merit Systems Protection Board (MSPB), which provides two additional opportunities for your claim to be reviewed.
After your Request for Reconsideration is denied, you have 30 days to appeal to the MSPB to request a hearing before an Administrative Law Judge. Unlike with the Request for Reconsideration, the documentation necessary to appeal will not be provided with the denial decision. If you have not already retained counsel, we highly recommend that you hire an attorney prior to appealing to MSPB.
At the MSPB, your matter will be assigned an administrative law judge (ALJ). You will have the opportunity to review any evidence that OPM has, and will need to respond to any requests for documentation from OPM. Ultimately, the ALJ will make a decision whether OPM made an error in denying your FDR application. If the ALJ finds no error on the part of OPM, you then have the opportunity to appeal the decision to appeal the decision to the presidentially appointed MSPB Board. Currently, the MSPB Board is experiencing a backlog of cases, and it could take a significant amount of time before you receive a decision. If the MSPB find that OPM did not err in denying your FDR application, that is still not the end of the road. If your FDR application denial is upheld by the MSPB Board, you may be able to appeal to the United States Court of Appeals for the Federal Circuit.
Currently employed or recently separated individuals also have the option at any point to withdraw their current application and submit a new application.
You cannot have more than one application pending with OPM at a time. You can only do this if you are currently still employed by your agency or within the first year of separation. One of the biggest drawbacks to refiling is the time delay, as you will be restarting the entire process. You should only consider this option if your first application is fundamentally flawed due and you will be able to produce significant evidence that will avoid replicating the same result. If you are considering this option, we strongly recommend that you speak with an attorney prior to taking any action.
While receiving a denial decision is disappointing, the reconsideration process allows Federal Employees multiple opportunities to appeal. The most important thing is to always meet the appeal deadlines. We recommend working with an attorney from the start of the FDR application process to help ensure your initial application is the strongest it could be. The good news is that it is not too late if you have received a denial decision to contact an attorney! At Casciano Law Group, we have decades of experience with the FDR application and appeals process, and will be glad to conduct a free consultation to discuss your options.
Federal Disability Retirement (FERS)
On March 9, OPM Director Kiran Anuja testified before the House Committee on Oversight and Reform. Among the topics covered by her testimony were improper payments in the Federal Employees Heath Benefits (FEHB) Program, hiring practices, the retirement case back log at OPM and telework. Telework is a key issue facing many of our clients and potential clients.
As the federal government attempts to tighten the reigns on allowing telework arrangements, many of our disability retirement clients are requesting some version of telework as a reasonable accommodation. In many instances, at a physician’s recommendation, telework is a major tool allowing employees to still provide valuable service that might not be possible if forced to come to the office every day.
And it’s more than just the commute. Environmental factors that exist in a group setting sometimes put my client’s health in further jeopardy. Sometimes that ability to control certain factors at home, like lighting or temperature, are simply not available in an office setting. Sometimes mobility is a huge issue and providing for a safe space to work, like at home, can mean the difference between staying in service and needing to go out on leave.
Regardless of where you come down on the issue of telework, what remains true is that many folks that use telework as a reasonable accommodation to continue working are caught in the middle of a huge debate on Capitol Hill about whether we allow too much telework.
Director Anuja’s testimony was clear that OPM’s position favors telework and does consider working from home valuable service. Another important piece of Director Anuja’s testimony is that OPM has no plans to change the telework policies currently in place at agencies.
One big piece of the policy debate is whether telework is efficient as some claim, or wasteful. OPM has recently put forth the results of a survey (Agencies’ transition to hybrid work shows through in 2022 FEVS results | Federal News Network) with a 35% response rate that ¼ of those who responded telework 3+ days per week. Obviously a 35% response rate calls into question the value of the survey so OPM has indicated that it will soon require agencies to collect and report data on telework.
If you are a federal employee and are currently working under a reasonable accommodation that isn’t working, telework or otherwise, please contact me. I would be happy to provide a detailed consultation discussing these issues and letting you know if we can help. Please contact me at any time.
8 Myths About FERS Disability Retirement | Answering Your Questions
Applying for FERS Disability Retirement (FDR) benefits comes at a vulnerable time for federal employees, and it can be easy to make a misstep based on common myths and misconceptions about the application process. Below, we’ve addressed some of the most common Federal Disability Retirement myths.
MYTH #1: Disability retirement is only for people who can’t work at all.
One of the most common myths and misconceptions is that in order to be eligible to receive FERS Disability Retirement (FDR) benefits, you need to be completely unable to work. In order to be eligible to receive FDR benefits, you must be able to demonstrate that as a result of illness or injury, you are unable to perform useful and efficient service in your current position and that the impairment is expected to last at least a year. You also need to have worked as a federal employee for at least 18 months.
The metric is based solely on the duties and requirements of your own position. So many federal positions require specialized skills and training. Even if you’re able to do a less complex position in another industry, the inability to meet the requirements of your federal position could mean that you’re eligible for FDR benefits.
MYTH #2: My agency isn’t involved in the Federal Disability Retirement application process at all.
Another misconception is related to the reasonable accommodation and reassignment process. This requirement necessitates that you cooperate with your agency and medical providers. Your agency must indicate that it has considered you for any vacant position that you’re eligible for in the same agency at the same grade or pay level and within the same commuting area.
In some instances, your agency may be able to offer an accommodation that is compatible with the symptoms and limitations of your condition. It’s problematic for your FDR claim if you don’t either attempt work with the offered accommodation or provide reasoning, based on medical evidence, why you cannot. However, this doesn’t mean you need to accept any position offered to you by your agency. If the position your agency offers you is at a lower pay and grade or requires you to move, it’s likely not harmful to your FDR application to decline, even if you’re facing pressure from your agency to accept the position.
MYTH #3: I can keep working full-time while I wait for my application to be approved.
Everyone has heard stories of a coworker’s friend who continued to work full time at their position until they started to receive FERS Disability Retirement (FDR) benefits. While this may happen, it’s rare and may be risky. When you’re applying for FDR benefits, you’re certifying that you’re no longer able to perform the duties of your position. The best way to show this is through proving a service deficiency, and a common way to show that is through attendance. Prior to starting the application process, you must be ready to stop working or significantly slow down.
Additionally, the most important aspect of an application for FERS Disability Retirement is medical documentation that supports your inability to work due to your medical condition. If you’re continuing to work when your medical provider indicates you can’t, it weakens the strength of your claim. The longer you continue to work, the greater the impact.
MYTH #4: I need to win Social Security Disability (SSD) benefits in order to get Federal Disability Retirement benefits.
Another misconception is the impact of other benefits on your Federal Disability Retirement application. You’re required to apply for Social Security Disability (SSD) benefits from the Social Security Administration. While it’s not a requirement to win SSD, it’s very beneficial for your claim.
However, there is no requirement that you win your SSD claim. You don’t need to appeal a denial decision, although failure to do so could potentially be leaving money on the table. You can receive both FDR and SSD benefits. However, your FDR benefit is offset by your SSD benefits. For the first 12 months that you’re eligible to receive FDR benefits, your annuity will be offset by 100% of the SSD benefits you’re eligible to receive. However, the calculation of benefits changes at 12 months. Your FDR benefits will be 40% of your final high-three and will only be offset by 60% of any social security benefits you receive.
MYTH #5: My doctor told me I’m disabled, so I know I’ll be approved.
It’s important to enter the FDR application process with realistic expectations and an understanding of the specific definition of disability that applies. The definition that a medical provider has in mind when they say you’re disabled may not match what OPM is looking for. You should make sure that you discuss your specific symptoms and difficulties at work with your healthcare providers. Having a detailed medical record that captures the full extent of your medical issues is much stronger than a conclusory statement with no support. Additionally, approval for SSD benefits or a 100% disability rating doesn’t automatically mean you’re disabled for the purposes of your FDR application. The definition of disabled for these benefit systems is different than for FDR.
MYTH #6: I’ve finally been approved, so I don’t need to keep up treatment with my doctors.
Another myth is that the entire FDR process ends with your initial approval letter. It’s essential that you continue to seek regular medical treatment for your disabling condition(s). This is important for your health and well-being, and OPM will occasionally conduct a continuing disability review. You’ll need to be able to prove to OPM that you remain disabled for the purposes of your FDR benefit. Failure to engage in consistent, ongoing treatment will be interpreted by OPM as an indication that you’ve recovered and are no longer disabled.
MYTH #7: I can’t return to work without losing my FDR benefits.
Another myth is that you can’t return to work and still receive FDR benefits. You’re allowed to work in the private sector and earn up to 80% of the current basic pay for the position you retired from. However, you should be cautious when reentering the workforce. If your new private sector position overlaps with the federal position you’re retiring from, it could weaken a pending FDR application. If you return to work when you’ve been approved and are receiving pay status, you should monitor your income to ensure you don’t surpass the income threshold. Each year, OPM will conduct an annual income survey, and you need to be sure to report your income.
MYTH #8: The process for applying for benefits is so confusing and hard, and I can’t get any help.
The process of seeking disability retirement is difficult for so many reasons, and the experience can feel very isolating. The FDR application process can seem like another mountain you need to climb alone. That doesn’t need to be the case! An experienced attorney can help guide you through every step of the way.
Don’t let the common myths and misconceptions about the FERS Disability Retirement process get in the way of obtaining the benefits you deserve. At Casciano Law Group, we have over 20 years of experience working with federal employees to obtain FERS Disability Retirement benefits. Please contact us to schedule a free consultation to learn more about how we can help.
