The OPM Disability Retirement Catch-22

Summary: OPM Disability Retirement requires an applicant to submit a "checklist" form. This checklist form is entirely redundant, but poses a challenge because OPM requires someone at the applicant's federal agency to fill it out. 

Four months after submitting a client's FERS Disability Retirement application to OPM, we received a letter from OPM. The first sentence is all you need to know.

"To help us begin processing this application, you may fax these forms to our office"

Let's break that down.

"To Help Us Begin"

"To help us begin" implies we had been preventing OPM from even beginning to process our client's application. That means after four months the only progress they had made on the client's case was to decide if they should even start making any progress at all.

"You may fax these forms" is also very ambiguous. Is this a necessary action to receive OPM disability retirement? Is it merely something we "may" do to "help" OPM? Or is this a requirement? If it is not a requirement, but merely something helpful, how helpful is it? Will it shave 6 months off the processing time? Maybe 1 month, or a year? 

I would hazard a guess here, which is that OPM intentionally left the letter extremely vague so that an enterprising disability retirement attorney wouldn't be able to hold the letter over OPM's head at a later date.

But Let's Discuss the Form in Question.

The form in question is one 3112E: Disability Retirement Application Checklist. This form is as redundant as they come. The very letter requesting its submission proves its redundancy. If OPM can go down a list of application materials and tell us what we are missing, why must we submit a form that is, in fact, a checklist of that same list of application materials?

You might ask, since it is just a checklist, why not fill it out? Well, the kicker is, we cannot. It can only be completed by someone at the agency at which the applicant previously worked. And frequently, our clients struggle to convince the agencies from which they were fired for timely cooperation. Additionally, our clients are disabled, which often creates unexpected barriers.

Why does OPM even require this checklist/form?

According to OPM, the purpose of the checklist is to certify the veracity of all OPM Disabilty Retirement Forms the applicant has submitted. But frankly, if an applicant is willing to break the law and submit false documents on one part of his application, it is likely they would be willing to falsify this document as well. And to be frank, everyone knows someone at their office who will sign whatever is put in front of them.

So What's The Big Deal?

As it appears to us, this document is at best pointless. But the reality is certainly worse.

The form is really just another way to delay the processing of OPM Disability Retirement Applications and potentially snag applicants in OPM bureaucracy. The letter has a time limit of 30 days. If that is not met, due to delays from the client, the agency, or the lawyer, then OPM has just found one of their favorite things: a reason to deny people benefit unconnected with their actual disability.

Perhaps the most blatantly problematic aspect of this entire exchange between OPM and our client is that our client was denied his right to counsel. The letter was sent only to the client, and not to his attorney, despite the bold-typed request at the very front of our submission to respect previous case law and our disabled client's right to counsel. Do not be mistaken, you are entitled to the right to counsel if you retain a Disability Retirement Attorney, even if OPM repeatedly ignores this right. 

It is not hard to imagine a scenario where one of our client's medical conditions would delay their receiving this letter or their transmitting it to us.But we shouldn't need to describe our client's medical disabilities in order to convince OPM to respect any government employee's constitutional right to counsel. Then again, there are a lot of things I never expected I would actually need to convince OPM about, considering OPM is a government agency that is supposed to be working on your behalf, rather than against you.

Personal Gripes of a Tech-Savvy Septegenarian

"You may fax these forms to our office"

As if anyone faxes anymore! I mean, really, fax? Is there no email we could use? And if we need to get in touch and we don't have a fax, what are our options? Carrier Pidgeon? Pony Express? But I digress.

The point of this letter is that you need to always be on your toes with OPM. They will throw curveballs, require you to track down your old bosses for checklists over a year after leaving your agency, and make sure to wait a good 4 months at least before telling you about this. Oh, and you will only have one month to respond to any communication from OPM. 

As always, if you have any questions for an experienced (but retired!) Federal Disability Retirement Lawyer, fill out the form on the right or send me an email.

Categories: Law Reform

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