Confusion surrounds timeliness of filing for disability retirement

Final regulations issued by the Office of Personnel Management to establish uniformity in the application procedures for disability retirement under the Civil Service Retirement System (CSRS) and the Federal Employees Retirement System (FERS) may create confusion as to whether applicants have filed for benefits within the prescribed amount of time.

The regulations (see Federal Register, April 8, 1998, Vol. 63, No. 67, pp. 17,049-17,050) allow employees to meet the filing deadline for disability retirement by submitting applications directly to their employing agencies before separation. Employees also can file for benefits service to their former agencies or to OPM within a year after leaving government.

The revised rules, designed to establish uniform disability retirement procedures among subscribers to CSRS and FERS, also establish standards for determining the date on which an application for disability retirement has been filed.

Although OPM's intention in devising these rules is laudable, its standards for determining when a disability retirement application was filed are full of holes.

For example, the revised rules allow federal employees to submit applications for disability benefits by fax. Although faxing can be useful for someone who needs to file an application quickly, it raises a question as to how one establishes that a faxed application was filed on time. For someone who decides to file just as the one-year clock is about to run out, the answer can be crucial.

Someone who files an application by mail or commercial delivery service can obtain proof from the post office or the delivery service to establish when his claim was filed. If he does not have such documentation, his application is considered to have been filed on the postmark date.

But even mailing an application can create problems, such as when someone files for benefits in an envelope sent by metered mail. Postal meters can be adjusted and used to date a late application to appear as though it was filed on time.

The difficulties in establishing a filing date for an application submitted by mail are small compared with the problems associated with a faxed application.

OPM simply states in its rules: "The date of filing by facsimile is the date of the facsimile." But this does not take into account the fact that some fax machines date-stamp an incoming document and others do not. Perhaps more troubling is the possibility that the sender might easily adjust the date on top of each fax page.

I'm not sure the folks at OPM have thought this through. I am even more surprised that no one else commented on this. Does anyone read these regulations when they are proposed?

Another apparently flawed provision in this ostensibly simple rule states, "An application for disability retirement that is filed with OPM or the applicant's former employing agency within one year after the employee's separation and that is incompletely executed or submitted in a letter or other form not prescribed by OPM is deemed timely filed."

Anything submitted within the stipulated period is considered on time. That is generous of OPM, but I think this can create problems from an administrative point of view. If someone submits an incomplete disability application within the one-year period, how long does that person have to complete the application?

Another provision establishes when an application that is filed by mail is considered officially filed. According to OPM, "The date of filing by mail is determined by the postmark date. If no legible postmark date appears on the mailing, the application is presumed to have been mailed five days before its receipt, excluding days on which OPM, the employing agency or former employing agency, as appropriate, is closed for business."

But who determines whether a postmark is legible? And if everyone agrees that an envelope has no legible postmark, how is receipt by OPM determined?

I am not nit-picking. OPM's legal department should have raised these questions. Someone who files a disability application by mail and expects the postmark to establish the filing date will need more specific guidelines than OPM has published. Ditto for filing by fax. I would have thought the legal minds at OPM would have recognized the potential for litigation raised by these rules.

Bureaucratus is a retired federal employee who contributes regularly to Federal Computer Week.

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