# Title 71 — Retirement Board

## Article 71-02 — Public Employees Retirement System

## Chapter 71-02-05 — Disability

Retirement Benefit
### § 71-02-05-01. Eligibility.

Repealed effective January 1, 1992.
### § 71-02-05-02. Commencement of benefit.

Repealed effective January 1, 1992.
### § 71-02-05-03. Cancellation of disability benefit.

When a member receiving a disability benefit attains the member's normal retirement date, that
member may elect to terminate that member's disability benefits and draw retirement benefits as
specified in North Dakota Century Code section 54-52-17.
History: Amended effective January 1, 1992; May 1, 2004; July 1, 2006; January 1, 2025.
General Authority: NDCC 54-52-04
Law Implemented: NDCC 54-52-17
### § 71-02-05-04. Calculation of disability benefit.

Repealed effective November 1, 1990.
### § 71-02-05-05. Conditions for changing to a disability retirement benefit from an early reduced

retirement benefit.
A member may elect to start receiving an early reduced retirement benefit, should the member be
eligible to do so, pending a disability determination or appeal. Upon receiving a disability determination,
interest accrual shall resume beginning the first of the month following notice of the determination,
continuing to accrue on the annuitant's accumulated contribution until the annuitant reaches the
annuitant's normal retirement date. The disability benefit will be calculated and a differential payment
made retroactive to the first day of the month following the member's termination from covered
employment.
History: Effective September 1, 1982; amended effective November 1, 1990; January 1, 1992; July 1,
1998; July 1, 2006.
General Authority: NDCC 54-52-04
Law Implemented: NDCC 54-52-17

### § 71-02-05-06. Determination of disability - Procedures.

1. Application.
a. If the member is unable or unwilling to file a public employees retirement system
application for disability retirement, the member's legal representative may file the
member's disability application.
b. For the main system and the national guard and law enforcement system, the application
must explain the cause of the disability, the limitations caused by the disability, the
treatment being followed, and the effect of the disability on the individual's ability to be
engaged in any gainful occupation for which the person is, or could become, reasonably
fitted by education, training, or experience. For the judges' retirement plan, the
application must explain the cause of the disability, the limitations caused by the
disability, the treatment being followed, and the effect of the disability on the individual's
ability to mentally or physically fulfill the duties and responsibilities of being a judge. A
judge who is determined to be disabled pursuant to subdivision a of subsection 3 of
North Dakota Century Code section 27-23-03 shall file an application documenting this
determination and the effective date of the disability.
c. The application must be filed with the public employees retirement system and may not
be filed earlier than one hundred twenty days before the expected termination date.
2. Medical consultant.
a. The board may retain a medical consultant to evaluate and make recommendations on
disability retirement applications.
b. The medical consultant shall review all medical information provided by the applicant.
c. The medical consultant is responsible to determine eligibility for disability benefits for
applicants not approved for social security disability benefits or for judges not approved
pursuant to subsection 3 of North Dakota Century Code section 27-23-03 and shall
advise the executive director of the decision in writing. Applicants who become eligible
for disability benefits under the Social Security Act and who meet the requirements of
subdivision h of subsection 3 of North Dakota Century Code section 54-52-17 are eligible
for benefits under subdivision e of subsection 4 of North Dakota Century Code section
subject to recertification requirements specified in this chapter. The social security
disability award must provide proof that the member's disability was determined during
the member's period of eligible employment. In determining eligibility for judges not
approved pursuant to the above, the medical director shall work with a review committee
composed of one supreme court judge and a district court judge to review the proposed
application. In order for the application to be approved, it must have the concurrence of
the medical director and at least one judge. The executive director shall appoint two
judges to serve on the review committee.
3. Medical examination.
a. The applicant for disability retirement shall provide the medical examination reports as
requested by the medical consultant.
b. The member is liable for any costs incurred by the member in undergoing medical
examinations and completing and submitting the necessary medical examination reports,
medical reports, and hospital reports necessary for initial determination of eligibility for
benefits.

c. If determined to be eligible for disability benefits, the member must be reimbursed for the
cost of medical examinations specifically requested by the medical adviser and the
executive director.
4. Appeal.
a. If the applicant has terminated employment, the public employees retirement system
shall notify the applicant in writing of the decision. If the applicant is determined not to be
eligible for disability benefits, the public employees retirement system shall advise the
applicant of the appeal procedure. If the applicant is determined eligible for disability
benefits, benefits must be paid pursuant to subsection 5.
b. If the applicant has not terminated employment, the applicant must be provided with a
preliminary notification of the decision in writing. The preliminary notification remains in
effect for a period not to exceed two hundred seventy days. If an applicant does not
terminate employment within two hundred seventy days of the date of termination
provided on the disability application, the application must be considered to be vacated
but the applicant may reapply as provided in subsection 1.
c. The applicant may appeal an adverse determination to the board by providing a written
notice of appeal within thirty days of the date that the public employees retirement
system mailed the decision.
d. The board shall consider all appeals at regularly scheduled board meetings. The
applicant must be notified of the time and date of the meeting and may attend and be
represented by legal counsel. The executive director shall provide to the board for its
consideration a case history brief that includes membership history, medical examination
summary, and the plan administrator's conclusions and recommendations. The board
shall make the determination for eligibility at the meeting unless additional evidence or
information is needed. The discussion concerning disability applications must be
confidential and closed to the general public.
e. If the initial board decision is adverse to the applicant after exhausting the administrative
procedure under subdivisions a and b, the applicant may file a request for a formal
hearing to be conducted under North Dakota Century Code chapter 28-32. The request
for a formal hearing must be filed within thirty days after notice of the initial decision has
been mailed or delivered. If an appeal is not filed within the thirty-day period, the initial
decision of the board is final. If a request for a formal hearing is timely filed, notice of the
hearing must be served at least thirty days prior to the date set for the hearing. The
board shall request appointment of an administrative law judge from the office of
administrative hearings to conduct the hearing and make recommended findings of fact,
conclusions of law, and order. The board shall either accept the administrative law
judge's recommended findings of fact, conclusions of law, and order or adopt its own
findings of fact, conclusions of law, and order. The applicant may under North Dakota
Century Code section 28-32-15 appeal the final decision resulting from this procedure to
the district court.
5. Payment of annuity. If awarded, the disability annuity is payable on, or retroactive to, the first
day of the month following the member's termination from covered employment minus any
early retirement benefits that have been paid.
6. Redetermination and recertification.
a. A disabled annuitant's eligibility must be recertified eighteen months after the date the
first check is issued and thereafter as specified by the medical consultant unless proof of
receipt of ongoing social security disability benefits is received. The executive director

may waive the necessity for a recertification, based on the recommendation of the
medical consultant or upon proof of receipt of ongoing social security disability benefits.
b. The public employees retirement system will send a recertification application and
request for a statement of annual earnings by certified mail with return receipt to the
disabled annuitant to be completed and sent back to the office. If completed
recertification application has not been received by the recertification date set in the
recertification request, benefits will be suspended effective the first of the month following
that date. If the recertification application is not received within six months of the
recertification date set in the recertification request unless an alternative date has been
approved by the executive director, the member will no longer be eligible to receive
disability benefits. Benefits suspended within six months of the recertification date set in
the recertification request will be reinstated the first of the month following recertification
by the medical consultant, or upon proof of receipt of ongoing social security disability
benefits, unless an alternative date has been approved by the executive director. The
regular accrued disability benefits will commence with a lump sum equal to the amount of
missed payments, without interest, retroactive to the first day of the month benefits were
suspended, unless otherwise approved by the board.
c. The medical consultant may require the disabled annuitant to be reexamined by a doctor.
The submission of medical reports by the annuitant, and the review of those reports by
the board's medical consultant, may satisfy the reexamination requirement. Upon
recertification, the disabled annuitant must be reimbursed for the cost of the required
reexamination if deemed necessary by the medical consultant and the executive director.
d. When the member has not provided proof of receipt of ongoing social security disability
benefits, the medical consultant will make the recertification decision. The executive
director may require additional recertifications, if the facts warrant this action. The
decision may be appealed to the board within ninety days of receiving the written
recertification decision.
e. Benefit payments must be suspended immediately upon notice received from the
medical consultant that the annuitant does not meet recertification requirements. The
executive director shall notify the annuitant of the suspension of benefits by certified mail
and shall reinstate benefits back to date of suspension if the annuitant is subsequently
found to meet recertification requirements.
f. If it is determined that the disability annuitant was not eligible for benefits during any time
period when benefits were provided, the executive director may do all things necessary
to recover the erroneously paid benefits.
History: Effective January 1, 1992; amended effective July 1, 1994; June 1, 1996; April 1, 2002; May 1,
2004; July 1, 2006; April 1, 2016; July 1, 2018.
General Authority: NDCC 54-52-04, 54-52-17
Law Implemented: NDCC 54-52-17, 54-52-26
### § 71-02-05-07. Optional benefits.

For the main system and national guard/law enforcement retirement plans, an individual deemed
eligible for a disability benefit may elect, as provided in this section, to receive one of the following
optional benefits in lieu of the regular disability benefit.
1. One hundred percent joint and survivor benefit. A member shall receive an actuarially
reduced disability retirement benefit as long as the member remains eligible for benefits under
subdivision e of subsection 3 of North Dakota Century Code section 54-52-17 and after the
member's death the same amount will be continued to the member's surviving spouse during

the spouse's lifetime. The designated beneficiary is limited to the member's spouse. Payments
of benefits to a member's surviving spouse must be made on the first day of each month
commencing on the first day of the month following the member's death, provided the
beneficiary is still living and has supplied a marriage certificate and the member's death
certificate. Benefits terminate in the month in which the death of the beneficiary occurs. In the
event the designated beneficiary predeceases the member or, in the event of divorce, the
option must be canceled and the member's benefit must be returned to the single life amount.
Payment of the single life amount must commence on the first day of the month following the
spouse's death providing written notification of death and a death certificate has been
submitted or, in the event of divorce, a photocopy of the divorce decree.
2. Fifty percent joint and survivor benefit. A member shall receive an actuarially reduced
disability retirement benefit as long as the member remains eligible for benefits under
subdivision e of subsection 3 of North Dakota Century Code section 54-52-17 and after the
member's death one-half the rate of the reduced benefit will be continued to the member's
surviving spouse during the spouse's lifetime. The designated beneficiary is limited to the
member's spouse. Payments of benefits to a member's surviving spouse must be made on the
first day of each month commencing on the first day of the month following the member's
death, providing the beneficiary has supplied a marriage certificate and death certificate and is
still living. Benefits terminate in the month in which the death of the beneficiary occurs. In the
event the designated beneficiary predeceases the member or, in the event of divorce, the
option must be canceled and the member's benefit must be returned to the single life amount.
Payment of the single life amount must commence on the first day of the month following the
spouse's death providing written notification of death and a death certificate has been
submitted or, in the event of divorce, a photocopy of the divorce decree.
3. Twenty-year or ten-year certain option. A member may elect an option which is the actuarial
equivalent of the member's normal, early, or deferred vested retirement pension payable for
life with a twenty-year or ten-year certain feature, as designated by the member.
History: Effective January 1, 1992; amended effective July 1, 1994; May 1, 2004; July 1, 2006; April 1,
2008; April 1, 2012; April 1, 2016.
General Authority: NDCC 54-52-04
Law Implemented: NDCC 54-52-06.4, 54-52-17
### § 71-02-05-07.1. Judges' retirement plan optional benefits.

For the judges' retirement plan, an individual deemed eligible for a disability benefit may elect, as
provided in this section, to receive one of the following optional benefits in lieu of the regular disability
benefit.
1. One hundred percent joint survivor benefit. A member shall receive an actuarially reduced
disability retirement benefit as long as the member remains eligible for benefits under
subdivision e of subsection 3 of North Dakota Century Code section 54-52-17 and after the
member's death the same amount will be continued to the member's surviving spouse during
the spouse's lifetime. The designated beneficiary is limited to the member's spouse. Payments
of benefits to a member's surviving spouse must be made on the first day of each month
commencing on the first day of the month following the member's death, provided the
beneficiary is still living and has supplied a marriage certificate and the member's death
certificate. Benefits terminate in the month in which the death of the beneficiary occurs. In the
event the designated beneficiary predeceases the member or, in the event of divorce, the
option must be canceled and the member's benefit must be returned to the normal retirement
amount. Payment of the normal retirement amount must commence on the first day of the
month following the spouse's death providing written notification of death and a death
certificate has been submitted or, in the event of divorce, a photocopy of the divorce decree.

2. Twenty-year or ten-year certain option. A member may elect an option which is the actuarial
equivalent of the member's normal, early, or deferred vested retirement pension payable for
life with a twenty-year or ten-year certain feature, as designated by the member.
History: Effective May 1, 2004; amended effective July 1, 2006; April 1, 2008; July 1, 2010; April 1,
2012.
General Authority: NDCC 54-52-04
Law Implemented: NDCC 54-52-17
### § 71-02-05-08. Transitional period.

For purposes of providing a transition period during the twelve-month application period provided
under previous law, amendments to chapter 71-02-05 dated January 1, 1992, apply to disabled
employees who terminated on or after July 1, 1991. However, the previous rules will continue in effect
for disabled employees who terminated before July 1, 1991.
History: Effective January 1, 1992.
General Authority: NDCC 54-52-04
Law Implemented: NDCC 54-52-17
### § 71-02-05-09. Interest accrual on accumulated contributions for disabled annuitants.

Effective January 1, 1998, interest must accrue on accumulated contributions as defined in article
71-02 until the disabled annuitant reaches that person's normal retirement age, cancels the benefit in
accordance with section 71-02-05-03, the account is closed, or until benefit payments commence to the
member's beneficiary.
History: Effective July 1, 1998; amended effective May 1, 2004; July 1, 2006; July 1, 2010.
General Authority: NDCC 54-52-04
Law Implemented: NDCC 54-52-17
