In this Division, the following words and phrases have the following meanings: Administrator means either the Chief Administrative Officer or the entity that contracts with the County to administer this disability plan. Applicant means an employee who has filed an application for benefits under Division 2 of Article VIII, or for whom the Chief Administrative Officer has filed an application. Certified representative means an employee organization certified under Sections 33-79, 33-106, or 33-151 to represent a bargaining unit. Continued non-service-connected disability means a condition of the employee that: (1) continues after the period of initial non-service-connected disability closes; (2) makes the employee unable to engage in any available employment commensurate with the employee’s training or retraining, education, and experience; and (3) is likely to be permanent. Continued service-connected disability for a non-public safety employee means a condition of a non-public safety employee that: (1) continues after the period of initial service-connected disability closes; (2) makes the employee unable to engage in available employment commensurate with the employee’s training or retraining, education, and experience; and (3) is likely to be permanent. Continued service-connected disability for a public safety employee means a condition of a public safety employee that: (1) continues after the period of initial service-connected disability closes; (2) makes the employee unable to: (A) engage in available employment commensurate with the employee’s training or retraining, education, and experience; and (B) earn substantially similar final earnings; and (3) is likely to be permanent. County means Montgomery County Government and, when applicable, any agency that adopts this plan under an adoption agreement approved by the Chief Administrative Officer. Disability Arbitration Board or Board means the 3 persons designated under Section 33-43(m) to review an appeal of the final decision of the Administrator regarding an application for disability benefits. Disability Review Panel or Panel means the 4 medical doctors appointed as Panel members by the Chief Administrative Officer under Section 33-43(c). Employee means a County employee who participates in the retirement savings plan under this Article or in the elected officials’ plan under Article III or the guaranteed retirement income plan under Article III. Final earnings means the annual average of the regular salary of an employee less any shift pay differential for the 18-month period immediately before the disability or any period of 18 consecutive months, whichever is greater. If a participant is required to take any furlough, as defined in personnel regulations adopted under Section 33-7(b) or a collective bargaining agreement, final earnings must include any amount the participant would have received if the participant had not been required to take any furlough. Initial non-service-connected disability means a condition of an employee that: (1) is the natural and proximate result of an accident, illness, or injury; (2) is not due to the employee’s willful misconduct or willful negligence; (3) makes the employee incapable of performing the job that the employee performed immediately before the accident, illness, or injury; and (4) is not an initial service-connected disability. Initial service-connected disability means a condition of an employee that: (1) is the natural and proximate result of an accident, illness, or injury occurring, an occupational disease incurred, or a condition aggravated while in the performance of duty as an employee; (2) is not due to the employee’s willful misconduct or willful negligence; and (3) makes the employee incapable of performing the job that the employee performed immediately before the accident, illness, or injury. Medical doctor means a doctor of medicine or osteopathy who graduated from a medical school accredited by the American Medical Association and is licensed to practice medicine in Maryland. Non-public safety employee means any employee who is not a public safety employee. Partial incapacity means a member’s inability to perform one or more essential functions of the position the member holds because of impairment that: (1) is unlikely to resolve in the next 12 months; (2) may be permanent; and (3) does not prevent the member from performing any other substantial gainful activity. Plan means the disability benefits plan established under this Division. Public safety employee means any employee who is a: (1) sworn, ranking officer of the Police Department; (2) paid firefighter, paid fire officer, or paid rescue service employee of the Montgomery County Fire and Rescue Service; (3) sworn deputy sheriff; (4) correctional officer; or (5) County employee who provides services to a correctional facility and designated as a public safety employee by the Chief Administrative Officer. Residual functional capacity means what the individual can still do, despite the individual’s impairment. The County must give the term residual functional capacity the same meaning as the term is given by the Social Security Administration. Substantial gainful activity means a level of productive work that requires significant physical or mental duties, or a combination of both, performed for pay or profit on a full-time or part-time basis. An individual is able to perform a substantial level of work if the individual is able to earn more than the Social Security Administration’s current monthly earnings limit for a disabled person. The County must give the term substantial gainful activity the same meaning as the term is given by the Social Security Administration. Total Incapacity means the member’s inability to perform substantial gainful activity because of an impairment that: (1) is unlikely to resolve in the next 12 months; and (2) may be permanent.

(a) Initial non-service-connected disability benefits. (1) An employee is entitled to receive disability benefits if the administrator determines that the employee has: (A) incurred an initial non-service-connected disability; and (B) worked for the County for the 6 months immediately preceding the disability. (2) The employee is entitled to receive disability benefits subject to this plan for a period of: (A) 12 consecutive months for a public safety employee; and (B) 36 consecutive months for a non-public safety employee. (b) Continued non-service-connected disability benefits. Before the end of the distribution period for initial non-service-connected disability benefits, the administrator must re-evaluate the employee to determine if the employee satisfies the requirements for a continued non-service-connected disability. If the employee does not meet the requirements for a continued non-service connected disability, the payment of disability benefits must stop. If a participant meets the requirements for a continued non-service connected disability, the payment of disability benefits must continue, subject to this plan. (c) Temporary disability. In extenuating circumstances, the administrator may: (1) waive the requirement that an employee's disability is likely to be permanent for continued service-connected or non-service-connected disability benefits; and (2) approve temporary disability benefits for one or more one-year periods until the administrator determines that the disability: (A) has ended; or (B) qualifies as a continued disability. (d) Initial service-connected disability benefits. An employee may receive disability benefits for a period of 36 consecutive months, subject to this plan, if the administrator finds that: (A) the employee has incurred an initial service-connected disability; and (B) for an accidental injury that does not cause mental impairment, the employee: (i) reports the claimed accidental injury as soon as practicable, but no later than one year after the applicant knew or should have known that the injury is likely to be disabling; or (ii) submits a claim for Workers’ Compensation benefits for the accidental injury that is not dismissed as untimely. (C) The time periods for reporting in subparagraphs (i) and (ii) do not begin while the applicant is unable to report because of incapacitating injuries. (D) For an accidental injury that occurs after July 1, 2009, the applicant must apply for disability benefits within one year after separation from County service or before July 1, 2010, whichever is later. (E) An employee who has committed an offense that would justify termination for misconduct must not receive service-connected disability benefits. (e) Continued service-connected disability benefits. (1) Before the end of the distribution period for initial service-connected disability benefits, the administrator must re-evaluate the employee to determine if the employee satisfies the requirements for a continued service-connected disability. If the employee does not meet the requirement for a continued service-connected disability, the payment of disability benefits must stop. If the employee meets the requirements for a continued service-connected disability, the payment of disability benefits must continue subject to this plan. (2) The Chief Administrative Officer may offer a 5-percent salary increase to an employee who: (A) is eligible to receive continued service-connected disability benefits; and (B) accepts an alternative position within the County government for which the employee is qualified. (3) The employee’s salary in the alternative position must not exceed the maximum salary of the pay grade assigned to the position. (4) A member of the Office, Professional and Technical Bargaining Unit or the Service, Labor and Trades Bargaining Unit who accepts an alternative placement incentive is not eligible to receive continued service connected disability benefits based on the disability for which the alternative placement was made. (5) If a member applies for continued service-connected disability benefits instead of accepting an alternative placement incentive, the member’s failure to accept the incentive must not: (A) be included in the information considered by the Disability Review Panel, Chief Administrative Officer, or Disability Arbitration Board; (B) be considered at any time by the Disability Review Panel, Chief Administrative Officer, or Disability Arbitration Board; or (C) affect the member’s eligibility for continued service-connected disability benefits or the amount of the continued service-connected disability benefits. (f) The Disability Review Panel must recommend a finding of total incapacity if the member’s service-connected disability is severe enough to meet the Social Security Administration’s requirements for disability, meaning that the member is unable to engage in any substantial gainful activity because of a medically determinable physical or mental impairment that can be expected to end in death or has lasted, or can be expected to last, for a continuous period of at least 12 months. The member does not have to qualify for Social Security disability benefits to be eligible for benefits under this subsection. (1) The Panel must base its determination of whether an individual is able to engage in any substantial gainful activity on an assessment from an independent vocational expert that considers the member’s age, education, work experience, transferable skills, and residual functional capacity. (2) The Panel must determine the member’s residual functional capacity and provide this information to the independent vocational expert. (3) A Panel determination that the member’s service-connected disability is severe enough to be considered a disability by the Social Security Administration is not a recommendation that the member is entitled to, or should be granted, a disability benefit by the Social Security Administration. (4) If a member has already been granted disability benefits by the Social Security Administration when the member applies for a service-connected disability pension, the County must give the member a total incapacity benefit if the Disability Review Panel finds that the award of disability benefits from the Social Security Administration was based primarily on the same medically determinable physical or mental impairment on which the Disability Review Panel awards the member a service-connected disability benefit. (g) The Disability Review Panel must recommend a finding of partial incapacity if: (1) the member meets the standards to receive a service-connected disability benefit; and (2) the member is not eligible to receive a benefit for total incapacity under subsection (f). (h) The County must increase the partial incapacity service-connected disability pension benefit of a member to a total incapacity benefit if: (1) the Social Security Administration awards disability benefits to the member; (2) the member submits all relevant information about the award of disability benefits from the Social Security Administration to the Disability Review Panel within 60 days after the member receives the award; (3) the Disability Review Panel finds that the award of disability benefits from the Social Security Administration was based primarily on the same medically determinable physical or mental impairment on which the Disability Review Panel originally awarded the member a service-connected disability benefit; and (4) the member applies for disability benefits with the Social Security Administration within 90 days after the Chief Administrative Officer notified the member that the service-connected disability pension benefit would be calculated as a partial incapacity. (5) If a member qualifies for an increased pension benefit under subsection (h), the County must increase the member’s service-connected pension retroactively to the date when the pension began. (i) Role of the Disability Review Panel. (1) The Disability Review Panel must consider an application for disability benefits to determine if the applicant is eligible for disability benefits under subsection (a), (b), (c), (d), (e), (f), (g), or (h). The Panel may consider any information or material submitted by the applicant, the certified representative, or the County. Within 60 days after the application is filed, the Panel must meet in person, by telephone conference, or by video conference, to review all evidence submitted to the Panel. A Panel must include either 2 or 3 members. At least 2 members must vote in favor of a decision to take any action under this Section. (2) Before the Panel meets to review the application, the Panel must advise each party of the deadline date for submitting information to the Panel. The Panel must allow a reasonable amount of time for the parties to submit additional information, and may extend the deadline at the request of the applicant for good cause shown. (3) The Panel must not accept or consider information from a certified representative representing an applicant if the information is received after the established deadline date unless the information is related to: (A) the applicant’s reinjury that occurred or was diagnosed after the deadline date; or (B) a change in the applicant’s medical condition that occurred or was diagnosed after the deadline date. (4) Within 30 days after the Panel’s last meeting to consider the application, the Panel must issue a written recommendation to the Administrator on whether the applicant qualifies for disability benefits. (5) Before making its recommendation, the Panel must require the applicant to complete a medical examination, including relevant medical tests, by a medical doctor who is not a member of the Disability Review Panel, unless the Panel finds that a medical examination is unnecessary because of the nature and severity of the injury or illness. The County must pay the cost of the examination. The results of the examination must be given to the applicant or the applicant’s representative immediately after the County or the Panel receives it. The panel must issue its written recommendation within 30 days after the medical doctor reports to the Panel. (6) Within 20 days after the Administrator receives the Panel’s recommendation, the Administrator must issue a final decision on whether the applicant is eligible for disability benefits under this Section.

(a) Notice to employee. The Chief Administrative Officer must notify an employee that an application for disability benefits should be made if the employee: (1) becomes ill or injured; and (2) is unable to perform at an acceptable level of competence the duties and responsibilities of the position to which the employee is assigned. (b) Application by Chief Administrative Officer. If the employee does not apply for disability benefits, the Chief Administrative Officer may apply on behalf of the employee. (c) Protection Against Fraud. Any person who knowingly makes any false statement or falsifies or permits to be falsified any record of the disability benefits plan in an attempt to defraud the disability benefits plan is subject to punishment for a class A violation.

(a) Service-connected disability. The annual amount of service-connected disability payments payable for total incapacity equals 70% of the employee's final earnings, less any reductions provided in section 33-134. The annual amount of service-connected disability payments payable for partial incapacity equals 52½% of the employee’s final earnings. (b) Non-service-connected disability. The annual amount of the non-service-connected disability benefit payment equals 2 percent of the employee’s final earnings, multiplied by the number of years of credited service earned under Section 33-41 or Section 33-119. However the benefit must be at least 33 1/3 percent of the employee’s final earnings, but no more than 60 percent of the employee’s final earnings, less any reductions provided in Section 33-134. (c) Cost-of-living adjustments. The administrator must make a cost-of-living adjustment annually to the disability benefits paid to any public safety employee under this plan. The cost of living adjustment must be equal to 60% of the annual increase in the Consumer Price Index for All Urban Consumers (CPI-U) for the Washington-Arlington- Alexandria Core Based Statistical Area (CBSA), as published by the United States Department of Labor, Bureau of Labor Statistics. However, the disability cost-of-living increase must not increase the disability benefits by more than 3% each 12-month period. A non-public safety employee must not receive a cost-of-living adjustment for any benefit paid under this plan. The cost-of-living adjustment for a disability benefit based upon a disability occurring after June 30, 2011 must not exceed 2.5 percent.

(a) Commencement of benefits. The administrator must begin paying initial disability benefits no earlier than the date that the employee exhausts all accrued sick and compensatory leave in excess of 80 hours. The County Executive must develop a procedure to determine the distribution date for payment of disability benefits by Executive Regulation under method (2). (b) Form of Payment. The administrator must pay all disability benefits on a monthly basis. The disability benefits must be paid to the employee directly. All applicable federal and state income taxes must be withheld from the disability benefits paid. To the extent that federal or state employment taxes apply, they must be withheld.

(a) Non-public safety employee. The administrator must terminate initial or continued disability benefits to a non-public safety employee if the employee: (1) recovers from the disability, as determined by the administrator; (2) does not provide the administrator with information that the administrator requires; or (3) attains age 85, or a later age if required under federal law. (b) Public safety employee. The administrator must terminate initial or continued disability benefits to a public safety employee if the employee: (1) recovers from the disability, as determined by the administrator; (2) does not provide the administrator with information that the administrator requires; or (3) attains age 85, or a later age if required under federal law, if the benefit is for a non-service connected disability.

(a) Reduction by payments received. Disability benefits must be reduced by any amount the employee receives from: (1) any other government group income maintenance insurance coverage for the disability; (2) Social Security disability benefits, including benefits payable to dependents on account of the disability; (3) any government disability plan; (4) the optional or integrated plan of the employees’ retirement system under Article III; and (5) the retirement savings plan under this Division, or amounts the employee is entitled to receive under the retirement savings plan for a public safety employee. (b) Amount of reduction. The disability benefits must be reduced by one dollar for every one dollar of other payments under subsection (a). If the employee receives any payment in subsection (a) as a lump sum or in periodic payments, or elects not to take a benefit available under the retirement savings plan, the amount will be converted to a life annuity for reduction of disability benefits under this Section. (c) Workers' compensation benefits. If an employee receives payments under this plan for a disability that also entitles or has entitled the employee to receive workers' compensation benefits under State law, the benefits provided under this plan satisfy the County's obligations under State law to provide workers' compensation benefits. If the benefits paid to an employee under this plan exceed the County's workers' compensation benefits required under State law, the County's obligation to pay benefits under the workers' compensation law is satisfied and any other County workers' compensation payments to the employee must stop. If the benefits paid to an employee under this plan are less than the County's workers' compensation benefits required under State law, the County's workers' compensation payments to the employee must be offset by the benefits paid to the employee under this plan.

(a) The Administrator must require any employee receiving continued disability payments to undergo annual or less frequent medical examinations, or to submit a medical doctor’s certificate verifying the continuation of the disability, unless the Administrator finds that a physical examination in a specific case is unnecessary because of the nature and severity of the injury or illness. The Administrator must submit the findings of any medical examination to the Disability Review Panel. The Disability Review Panel may require the employee to submit to an additional independent medical examination. The Panel must consider the findings of the physical examination and any other information submitted by the employee or the County and recommend in writing to the Administrator whether the employee still qualifies for disability benefits. The Administrator must issue a final decision within 20 days after receiving the Panel’s recommendation. An employee may appeal the Administrator’s decision to reduce or discontinue disability pension payments to the appropriate Disability Arbitration Board under Section 33-138.

(a) Program established. The County Executive may establish a program for re-employment of employees who are receiving disability benefits under this plan by Executive Regulation under method (2). (b) Administration. The Chief Administrative Officer must administer any re-employment program. (c) Employment level. Any employment offered to an employee under a re-employment program must be commensurate with the training, education, experience, and physical and mental capabilities of the employee. (d) Participation required. Unless the Chief Administrative Officer exempts an employee based on medical evidence that the employee could not successfully complete the reemployment program, an employee receiving benefits under this plan must participate in any re-employment program established under this Section.

The Chief Administrative Officer may fund the benefits under this plan with: (a) a self-funding vehicle using County general funds, subject to appropriation and employee contributions; (b) disability insurance purchased with County funds, subject to appropriation and employee contributions; or (c) a combination of both.

(a) The applicant, or the certified representative on behalf of the applicant, may appeal the written decision of the Administrator on eligibility for disability benefits within 20 days after the applicant receives the Administrator’s decision. (b) The Disability Arbitration Board must convene to consider an appeal within a reasonable time after the appeal is filed. The appeal and judicial review proceedings are governed by Sections 3-201 through 3-234 of the Maryland Arbitration Act. (c) The Disability Arbitration Board must issue the decision quickly. The Board should issue the decision within 30 days after the hearing or receiving any post-hearing brief, whichever is later. (d) The County must pay all reasonable fees and expenses of the arbitrator, as determined by the Chief Administrative Officer, except that a certified representative must pay any fee resulting from the cancellation of a scheduled hearing if the certified representative: (1) causes a hearing to be canceled and the application remanded to the Disability Review Panel; or (2) causes a hearing to be canceled and rescheduled on a later date.