Opsrp Disability Benefit

Link to law: http://arcweb.sos.state.or.us/pages/rules/oars_400/oar_459/459_076.html
Published: 2015

The Oregon Administrative Rules contain OARs filed through November 15, 2015

 

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OREGON PUBLIC EMPLOYEES RETIREMENT SYSTEM









 

DIVISION 76
OPSRP DISABILITY BENEFIT

459-076-0001
Definitions
The words and
phrases used in this division have the same meaning given them in ORS Chapter 238A
and OAR 459-070-0001. Additional terms are defined as follows unless the context
requires otherwise.
(1) “Any
work for which qualified” means a job, not necessarily the last or usual job,
which the applicant for disability benefits:
(a) Is
physically and psychologically capable of performing; and
(b) Has,
or may obtain with reasonable training, the knowledge, skills and abilities, to
perform the job.
(2) “Certified
vocational consultant” means a person who satisfies the criteria set forth
under either of the following:
(a) A
Master's Degree in vocational rehabilitation, and one year of experience in performing
vocation evaluations or developing individualized return-to-work plans; or a Bachelor's
Degree and two years of such experience. All degrees must have been earned at an
accredited institution; or
(b) Accredited
as a Certified Rehabilitation Counselor (CRC) by the Commission on Rehabilitation
Counselor Certification; as a Certified Disability Management Specialist (CDMS)
by the Certification of Disability Management Specialists Commission; or a Certified
Vocational Evaluation Specialist (CVE) or a Certified Work Adjustment Specialist
(CWA) by the Commission on Certification of Work Adjustment and Vocational Evaluation
Specialists.
(3) “Confidential
information” means information of a personal nature such that disclosure would
constitute an unreasonable invasion of privacy as defined by state law.
(4) “Date
an application for a disability benefit is filed” means the receipt date as
determined pursuant to OAR 459-005-0220.
(5) “Date
of disability” means the date an active member ceased to work because of inability
to perform any work for which qualified due to injury or disease.
(6) “Date
of separation from service” means the later of: the last day worked or the
last day of paid leave with a PERS participating employer.
(7) “Date
of termination” means the date a member terminates from employment such that
an employee/employer relationship no longer exists.
(8) “Earned
income” includes, but is not limited to:
(a) Salary
or wages received as an employee;
(b) Self-employment
income from:
(A) Services
industry;
(B) Sales;
(C) Assembly
or manufacturing;
(D) Consulting;
(E) Property
management;
(F) Hobby
income; or
(G) Book
advances.
(c) “Earned
income” does not include:
(A) Investment
income;
(B) Rent;
and
(C) Royalties.
(d) Earned
income is deemed to be received by the member on the date it is issued by the payer.
(9) “Effective
date of disability benefit” means the first day of the month following the
date of disability, in which:
(a) The
member is paid no salary from a participating employer; and
(b) The
member does not receive paid leave from a participating employer, except for any
lump sum payment for accrued vacation leave or compensatory time.
(10) “Extended
duration” means a period of not less than 90 consecutive calendar days unless
the disability is expected to result in the death of the disabled member in less
than 90 days.
(11) “Independent
medical exam” means an exam or exams conducted by a physician chosen by PERS
for purposes other than for treatment which results in the issuance of a report
or reports based on those exams, giving an opinion regarding the claimed injury
or disease.
(12) “Material
contributing cause” means the efficient, dominant, and proximate cause of
the disability, without which the member would not be disabled.
(13) “Monthly
salary” means salary as defined in ORS 238A.005 that is earned in the last
full calendar month of employment and includes a differential wage payment, as defined
in OAR 459-005-0001.
(a) Retroactive
payments or payments made due to clerical errors, paid in accordance with ORS 238A.005,
are allocated to the period the salary was earned or should have been earned.
(b) Payments
of salary paid within 31 days of separation are allocated to the period the salary
was earned and should be considered as paid on the last date of employment.
(14) “Monthly
salary received” means the greater of the salary paid for the last full calendar
month of:
(a) Employment
before the date of disability; or
(b) Differential
wage payments made before the date of disability. This subsection is effective January
1, 2009.
(15) “Performance
of duty” means whatever an employee may be directed, required or reasonably
expected to do in connection with his or her employment, and not solely the duties
particular to his or her position.
(16) “Periodic
review” means a review of a member receiving a disability benefit to determine
whether or not a continued benefit is warranted.
(17) “Physician”
means a medical doctor, a doctor of osteopathy, a doctor of oral surgery, a chiropractic
doctor, a naturopathic doctor, or a doctor of psychology practicing only within
the purview of their license issued by the designated authority of a state.
(18) “Pre-existing
condition” means a condition that was not sustained in actual performance
of duty in a qualifying position with a participating employer.
(19) “Protected
health information” means health information created or received by a health
care provider, health plan, or health care clearinghouse, where an individual has
a reasonable belief that the information can identify the individual, which relates
to:
(a) The
past, present, or future physical or mental health of an individual;
(b) The
provision of health care to an individual; or
(c) The
past, present, or future payment for the provision of health care to an individual.
(20) “Total
disability” means the inability to perform any work for which qualified for
an extended duration due to physical or mental incapacitation.
(21) “Vocational
evaluation” means an evaluation conducted by a certified vocational consultant,
to determine the ability of an applicant to perform any work for which they are
qualified.
(22) “Work
related stress” means conditions or disabilities resulting from, but not limited
to:
(a) Change
of employment duties;
(b) Conflicts
with supervisors;
(c) Actual
or perceived threat of loss of a job, demotion, or disciplinary action;
(d) Relationships
with supervisors, coworkers, or the public;
(e) Specific
or general job dissatisfaction;
(f) Work
load pressures;
(g) Subjective
perceptions of employment conditions or environment;
(h) Loss
of job or demotion for whatever reason;
(i) Fear
of exposure to chemicals, radiation biohazards, or other perceived hazards;
(j) Objective
or subjective stresses of employment; or
(k) Personnel
decisions.
Stat. Auth.:
ORS 238A.450

Stats.
Implemented: ORS 238A.235

Hist.:
PERS 16-2005, f. & cert. ef. 10-3-05; PERS 7-2007, f. & cert. ef. 4-4-07;
PERS 1-2009, f. & cert. ef. 2-12-09; PERS 8-2011, f. & cert. ef. 10-5-11
459-076-0005
Eligibility for Disability Benefits
(1) An active member must be
totally, not partially, disabled and unable to perform any work for which qualified
for an extended duration to be eligible for a disability benefit.
(2) A member with disabilities
arising after the member’s date of termination from a qualifying position(s)
is not eligible for a disability benefit.
(3) In determining a member’s
eligibility for disability benefits, the burden of proof is upon the applicant.
The Board is not required to prove whether the applicant is or is not eligible for
disability benefits.
(4) Eligibility requirements
for duty disabilities.
(a) To be eligible for a duty
disability a member must prove:
(A) The mental or physical incapacitation
arose out of and in the course of duty and was not intentionally self-inflicted;
and
(B) The on the job injury must
be the material contributing cause of the disability, even if the member has a pre-existing
condition.
(b) For work related stress
to be considered the material contributing cause of the disability all of the following
criteria must be met:
(A) The employment conditions
producing the work related stress exist in a real and objective sense;
(B) The employment conditions
producing the work related stress are conditions other than conditions generally
inherent in every working situation or reasonable disciplinary, corrective or job
performance evaluation actions by the employer, or cessation of employment or employment
decisions attendant upon ordinary business or financial cycles;
(C) There is a diagnosis of
a mental or emotional disorder which is generally recognized in the medical or psychological
community; and
(D) There is evidence that the
work related stress arose out of and in the course of employment.
(5) Eligibility requirements
for non-duty disabilities. A member applying for non-duty disability benefit must
meet the 10 or more years of service requirements pursuant to ORS 238A.235(2)(a)
or (b).
(6) Termination of OPSRP membership.
Disability benefits are available only to active OPSRP Pension Program members.
Former OPSRP Pension Program members who have terminated membership pursuant to
ORS 238A.110 are not eligible to receive OPSRP disability benefit.
(7) Return to work. If a member
who is receiving a disability benefit becomes employed or receives earned income,
the member’s disability benefit will be terminated, effective the first of
the month following employment or issuance of earned income. PERS will invoice the
member for, or recover under ORS 238.715, any overpayment of benefits.
(8) PERS may contact other public
or private agencies, such as the Oregon Employment Department, the Oregon Department
of Revenue, or the U.S. Internal Revenue Service to obtain employment information.
(9) Upon request by PERS, a
member must provide PERS with a copy of the member’s federal income tax returns,
together with copies of IRS forms W-2.
Stat. Auth.: ORS 238A.120 &
238A.450

Stats. Implemented: ORS 238A.140
& 238A.235

Hist.: PERS 16-2005, f. &
cert. ef. 10-3-05; PERS 11-2011, f. & cert. ef. 11-23-11
459-076-0010
Criteria for Granting and Denying Disability Benefits
(1) Medical documentation is required
by PERS. Each disability benefit applicant shall supply any treating or consulting
physician’s examination report or other medical information requested by PERS.
PERS may base its determination on either a treating or consulting physician’s
medical examination report or have the applicant examined by one or more physicians
selected by PERS, or both.
(2) All claims of a disability
must be supported by at least one physician’s report, resulting from a physical
examination, documenting how the injury or disease incapacitates the member.
(3) In addition, a disability
benefit applicant shall be required to furnish the following:
(a) For claims of mental
or emotional disorder, at least one report of examination by a psychiatrist or at
least one report of evaluation by a psychologist when accompanied by a report of
physical examination by a treating or consulting physician;
(b) For claims of orthopedic
injury or disease, at least one report of a treating or consulting orthopedic specialist;
(c) For claims of neurological
or neurosurgical injury or disease, at least one report of a treating or consulting
neurologist or neurosurgeon;
(d) For claims of fibromyalgia,
at least one report of a treating or consulting rheumatologist; and
(e) Any other specialized
physician’s report PERS deems necessary.
(4) To demonstrate that he
or she is unable to perform any work for which qualified, as defined in OAR 459-076-0001(1),
the applicant shall document how the injury or disease incapacitates the applicant.
The standard is subjective (that is, whether the applicant is actually incapacitated)
not objective (that is, whether a "normal" member would have been incapacitated
by the same events).
(a) In determining what work
for which a member is qualified, the following factors shall be considered:
(A) Previous employment experience;
(B) Formal education;
(C) Formal training;
(D) Transferable skills;
(E) Age; and
(F) Physical or mental impairment.
(b) In determining what work
for which a member is qualified, PERS may request, at PERS’ expense, a vocational
evaluation be done by a vocational consultant who is fully certified as set forth
in OAR 459-076-0001(2).
(c) The inability of the
applicant to perform the duties of his or her last job, in itself, does not satisfy
the criterion.
(5) When there is a dispute
among medical experts, more weight will be given to those medical opinions that
are both well-reasoned and based on complete information.
(6) The Board may deny any
application or discontinue any disability benefit if an applicant:
(a) Refuses to submit to
an independent medical or vocational examination; or
(b) Refuses to submit to
any medical examination or supply a completed application or review form.
Stat. Auth.: ORS 238A.450
Stats. Implemented: ORS 238A.235
Hist.: PERS 16-2005, f. &
cert. ef. 10-3-05; PERS 8-2014, f. & cert. ef. 7-25-14
459-076-0020
Application Required
(1) Application must be made on forms
provided by PERS. PERS may require the member to provide any information that PERS
considers necessary to determine the member’s eligibility for a disability
benefit.
(2) No disability benefit
will be paid unless the member files a timely and complete application with PERS.
(3) Application must be made
by a member or the member’s authorized representative. A representative must
submit to PERS written proof of the representative’s authority; such as a
power of attorney, guardianship or conservatorship appointment.
(4) A member must file a
timely application for disability benefits:
(a) An active member may
file the application immediately after the last day worked even though the member
may be on a paid leave or on an official leave of absence without pay. No application
will be accepted that predates the last day the member was actually on the job,
and:
(A) The application must
be filed no later than 90 calendar days from:
(i) The date the member is
medically released for work; or
(ii) The date the member
returns to work, whichever is earlier.
(B) Total disability must
be continuous from the date of disability to the earlier of paragraph (A)(i) or
(ii) of this subsection.
(b) An inactive member who
became totally disabled due to injury or disease while the applicant was an active
member and has not terminated membership, must file an application for a disability
benefit within five calendar years of the date of separation from service. Total
disability must have arisen while the applicant was an active member and be continuous
from the date of disability to the date the application is filed.
(c) A member cannot apply
for disability benefits before their date of disability.
(5) In determining the effective
date of a disability benefit, PERS may allow up to 60 months of benefits retroactive
from the date the application is filed with PERS, but in no case earlier than the
first day of the month following the date of separation from service.
(6) Upon the filing of an
application for a disability benefit, PERS will notify the applicant’s current
or most recent employer of the filing. Additionally, PERS may request of an employer
information pertaining to current or previous employment.
(7) When making application
for a PERS disability benefit, PERS will request the applicant authorize any physician,
health practitioner, hospital, clinic, pharmacy, employer, employment agency, or
government agency to release and disclose to PERS, or independent physicians and
vocational consultants retained by PERS, any information within their records or
knowledge, including that information otherwise protected under federal or state
law, regarding the applicant’s health and employment which PERS determines
relates to the applicant’s claim of disability and inability to perform any
work for which qualified.
(8) When filing an application
for disability benefit, if the applicant wishes to authorize release and disclosure
of protected health information, as defined in OAR 459-076-0001, the applicant must
complete and sign a consent form which specifically authorizes the release and disclosure
of such information.
(a) This authorization is
voluntary. PERS is not a covered entity as defined in 45 CFR Parts 160 and 164,
and the protected health information is not subject to federal and state health
information privacy laws, but may be protected under Oregon State Public Record
disclosure laws.
(b) This authorization may
be revoked in writing at any time, except to the extent the entities named on the
authorization form(s) have taken action in reliance of the authorization.
(c) If the applicant refuses
to give or revokes authorization to disclose to PERS medical information that PERS
determines it needs to evaluate the application, eligibility for a disability benefit
may be affected.
Stat. Auth.: ORS 238A.450
Stats. Implemented: ORS 238A.235
Hist.: PERS 16-2005, f. &
cert. ef. 10-3-05; PERS 7-2007, f. & cert. ef. 4-4-07; PERS 8-2011, f. &
cert. ef. 10-5-11; PERS 11-2012, f. & cert. ef. 8-31-12; PERS 8-2015, f. &
cert. ef. 7-31-15
459-076-0025
Application Processing — Independent Examinations and Appeals
(1) Following
the timely filing of a completed application, PERS may, at its discretion, request
an independent medical exam or a vocational evaluation. If PERS requests one or
more of these exams or evaluations, PERS will pay the reasonable associated expenses.
(a) For
independent medical exams, PERS will inform the applicant in writing and postmarked
not less than 10 days before a scheduled examination, of the identity of the physician(s)
selected to examine applicant, together with location, date and time.
(b) For
vocational evaluations, the vocational consultant or locator service shall inform
the applicant of the location, date and time of the scheduled examination.
(c) If
the applicant fails to meet the scheduled appointment or fails to reschedule the
examination within five days of notification, PERS will not reschedule an examination
at PERS’ expense unless the applicant can demonstrate good cause for having
failed to meet the scheduled appointment or reschedule the appointment as required.
(d) Good
cause includes, but is not limited to:
(A) Physical
or mental incapacitation preventing the member from meeting or rescheduling the
examination;
(B) Failure
of PERS or the vocational consultant or locator service to send the member notice
as described above; or
(C) A
death in the member’s immediate family.
(e) Good
cause does not include:
(A) A
member’s refusal to attend the scheduled appointment;
(B) A
member’s failure to meet the appointment with no reason provided; or
(C) A
member’s failure to make appropriate transportation arrangements.
(2) When
PERS requires an applicant to travel to be examined by a physician, vocational consultant,
or other professional, PERS will reimburse the applicant’s reasonable transportation
costs based on the least costly alternative and on availability. Travel by private
vehicle will be compensated at the rate applicable to travel by unrepresented state
employees on state business. Transportation by taxi, bus, rail, or other public
carrier will be paid only upon presentation of receipts from the providers. Lodging
and subsistence will be allowed only when a stop-over is necessary and will be paid
at the rate applicable to unrepresented state employees traveling on state business.
Reimbursements will be reduced by the amount of any penalty assessed PERS because
of a member’s failure to meet a scheduled appointment.
(3) In
the event a member fails to meet a scheduled examination in accordance with section
(1) of this rule, and PERS is assessed a penalty by the service provider for the
failure to meet the scheduled appointment, the disability applicant will bear the
cost of the penalty as follows:
(a) If
the disability application is not approved, by making direct payment to the service
provider who assessed the penalty; or
(b) If
the disability application is approved:
(A) By
making direct payment to the service provider who assessed the penalty; or
(B) By
having the amount of the penalty deducted from the monthly disability benefit, as
provided for under ORS 238.715, payable to the member until the invoice is satisfied.
(4) The
Director, or the Director’s designee, is hereby authorized to approve or deny
a disability benefit application. Upon receipt and review of all necessary documentation,
staff will present applicant’s claim to the Director, or the Director’s
designee, with a recommendation to approve or to deny a disability benefit. The
Director, or the Director’s designee, may accept or reject the staff’s
recommendation, or refer the application back to staff for further documentation
and review.
(a) If
the disability claim is approved, the staff will notify the applicant and the applicant’s
employer of such approval.
(b) If
the disability claim is denied, the staff will issue an Intent to Deny letter by
regular and certified mail, return receipt requested. The Intent to Deny letter
will advise the applicant that additional information to substantiate the claim,
or a request for an extension of 30 days to present additional information, may
be submitted to the staff in writing within 30 days of the date of the Intent to
Deny letter.
(5) Following
the issuance of an Intent to Deny letter, staff will review any additional information
submitted within 30 days from the issuance of the Intent to Deny letter.
(a) If
the additional information results in a recommendation to approve the application,
staff will resubmit the application to the Director with the recommendation.
(b) If
the additional information does not result in a recommendation to approve the application,
PERS will issue a final denial letter by regular and certified mail, return receipt
requested.
(c) If
no additional information is received, PERS will issue a final denial letter by
regular and certified mail, return receipt requested.
(6) The
final denial letter will provide the applicant with notification of the right to
request a contested case hearing as provided for in OAR 459-015-0030 and 459-001-0035.
(7) A
contested case hearing on the denial of disability benefits shall be conducted according
to OAR 459-015-0030, 459-015-0035, and 459-015-0040.
(8) PERS
will notify the most recent employer of the approval or the denial of an application
for a disability benefit, a request for review of the Director’s determination,
and the Director’s final action. Such notification will not contain any confidential
information as defined in OAR 459-076-0001(3).
Stat. Auth.:
ORS 238A.450

Stats.
Implemented: ORS 238A.235

Hist.:
PERS 16-2005, f. & cert. ef. 10-3-05; PERS 8-2011, f. & cert. ef. 10-5-11
459-076-0045
Cessation of Disability Benefits Upon Reaching Normal Retirement Age
(1) If a member who is receiving an OPSRP disability benefit reaches normal retirement age, as defined in OAR 459-076-0001(11), disability benefits will cease as of the first of the following month.
(2) The disability benefit will not automatically convert to a retirement benefit upon the member reaching normal retirement age. The member must apply for service retirement benefits before receiving them. In order to receive a service retirement benefit beginning in the month in which a disability benefit ceases under section (1) above, the member must:
(a) Complete the applicable Service Retirement application(s); and
(b) Submit the application(s) to PERS at least 92 days before the first of the month in which the disability benefit ceases under section (1). In no case will a service retirement benefit become payable during a month in which a member receives a disability benefit or earlier than the first of the month in which an application was submitted.
(3) The OPSRP retirement pension benefit will be based on:
(a) The adjusted salary as set forth in section (4) of this rule; and
(b) The total retirement credit accrued, set forth in section (5) of this rule.
(4) The salary the member was receiving immediately prior to leaving active employment as a result of disability will be adjusted for the cost-of-living for each year after the member left employment and before the member's effective date of service retirement.
(a) Cost-of-living adjustments will be based on the Portland-Salem, OR-WA CPI and may not exceed a two percent increase or decrease for any year.
(b) Cost-of-living adjustments will be made only for calendar years in which the member received an OPSRP disability benefit for at least six months during a calendar year.
(5) Retirement credit. A member receiving OPSRP disability benefits will accrue retirement credit, as well as hours of service credit toward vesting, for the entire period of disability until:
(a) The member is no longer disabled; or
(b) The member reaches normal retirement age.
(6) The retirement credit will accrue under the same employment classification in which the member was immediately employed prior to becoming disabled.
(7) A member who is receiving disability benefits who reaches normal retirement age and has not applied for a service retirement will become an inactive member on the first of the month following the month in which they reach normal retirement age.
Stat. Auth.: ORS 238A.450

Stats. Implemented: ORS 238A.155 & 238A.235

Hist.: PERS 16-2005, f. & cert. ef. 10-3-05
459-076-0050
Periodic Reviews
(1) Members receiving
a disability benefit are subject to periodic reviews of their disabled status until
the member reaches normal retirement age or staff determines that periodic reviews
are no longer warranted.
(2) Periodic
reviews will be used to determine that continued disability benefits are warranted.
In recommending the continuance or discontinuance of a disability benefit, PERS
will follow the criteria established under OAR 459-076-0005 for the original approved
disabling condition or a new medical condition. If a member receiving a disability
benefit becomes employed, the member’s disability benefit will be terminated
as provided in OAR 459-076-0005.
(3) For
a duty disability, the periodic review will not revisit the original determination
that the injury or disease was duty caused, unless there is evidence of misrepresentation
or fraud.
(4) PERS
will establish review dates for each member subject to a periodic review depending
on type of disability, extent of disability, and medical reports unique to each
individual case:
(a) The
reviews may be medical or vocational in nature, or both;
(b) Upon
review, PERS may accept or require:
(A) New
treating or consulting physician or specialist reports;
(B) Updated
physician or specialist reports;
(C) Independent
medical or vocational examinations; or
(D) Employment
and wage information, including but not limited to, tax returns or information from
the State Employment Department.
(c) PERS
may immediately discontinue the disability benefit of any person who refuses to
provide current medical evidence or refuses to submit to an examination:
(A) If
the disability claim is discontinued, the staff shall issue an Intent to Discontinue
letter by regular and certified mail, return receipt requested. The discontinuation
letter shall advise the applicant that additional information to substantiate the
claim, or a request for an extension of 30 days to present additional information,
may be submitted to the staff in writing within 30 days of the date of the Intent
to Discontinue letter;
(B) Following
the issuance of an Intent to Discontinue letter, staff will review any additional
information which is submitted within 30 days:
(i) If
the additional information results in a recommendation to approve the application,
staff shall resubmit the application to the Director, or the Director’s designee,
with the recommendation;
(ii) If
the additional information does not result in a recommendation to approve the application,
PERS will issue a final discontinuation letter by regular and certified mail, return
receipt requested.
(C) If
no additional information is received within 30 days, PERS will issue a final discontinuation
letter by regular and certified mail, return receipt requested;
(D) The
final discontinuation letter will provide the applicant with notification of the
right to request a contested case hearing as provided for in OAR 459-015-0030 and
459-001-0035.
(5) The
member has the burden to prove continuing eligibility for a disability benefit.
(6) The
Director, or Director’s designee, may approve or deny the continuance of a
disability benefit.
Stat. Auth.:
ORS 238A.450

Stats.
Implemented: ORS 23A8.235

Hist.:
PERS 16-2005, f. & cert. ef. 10-3-05; PERS 7-2007, f. & cert. ef. 4-4-07;
PERS 8-2011, f. & cert. ef. 10-5-11
459-076-0055
Payment
of Disability Benefit
(1) A disability
benefit accrues from the effective date of disability benefit.
(2) Notwithstanding
section (1) of this rule, disability payments may not begin until a period of extended
duration following the date of disability has been completed.
(3) If
PERS cannot calculate the actual disability benefit payment, an estimated payment
will be made until PERS receives all the necessary information needed to calculate
the actual benefit payment.
(a) If
the estimated payment results in an underpayment of $10 or more a month, the member
will receive interest under the provisions of OAR 459-007-0015.
(b) If
the estimated payment results in an overpayment of any amount, the overpayments
may be recovered by decreasing the monthly benefit amount until the difference between
the amount the member received and the amount the member should have received is
recovered.
(4) If
a member applying for a disability benefit dies before the Director’s approval
of the application the application will be considered cancelled effective on the
date of the member’s death.
(5) If
a member receiving disability payments dies before retiring, the disability benefit
will cease the first of the month following the member’s date of death.
Stat. Auth.:
ORS 238A.450

Stats.
Implemented: ORS 238A.235

Hist.:
PERS 16-2005, f. & cert. ef. 10-3-05; PERS 8-2011, f. & cert. ef. 10-5-11

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