Title 7 DCMR — EMPLOYMENT BENEFITS

7-1 PUBLIC SECTOR WORKERS' COMPENSATION BENEFITS

7 DCMR § 100 PURPOSE

100.1 The provisions of this chapter are promulgated to implement Title 23 of the District of Columbia Government Comprehensive Merit Personnel Act of 1978 (the Act) (D.C. Law 2-139; D.C. Official Code §§ 1-623.01 et seq. (2012 Repl. & 2016 Supp.)), which governs the Public Sector Workers’ Compensation Program (the Program).

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Final Rulemaking published at 59 DCR 8766 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 100

7 DCMR § 101 SCOPE

101.1 The Office of Risk Management (ORM) has oversight and administrative responsibility for the Program.

101.2 All employees, contractors, sub-contractors, and agents, acting for or on behalf of the District of Columbia (the District) to implement the Program pursuant to the Act, including third-party administrators, shall comply with these rules.

101.3 Nothing in these rules, or any instructions or attachments related thereto, shall be interpreted as:

(a) Creating an entitlement or property interest in any employee, contractor, sub-contractor, or agent to whom these rules are applicable;

(b) Making any person or entity a third-party beneficiary to any contract with the District or with any of its contractors or sub-contractors;

(d) Limiting the District of Columbia’s ability to amend, modify, or rescind these rules, consistent with any applicable law, including the Act and the District of Columbia Administrative Procedure Act, approved October 21, 1968 (82 Stat. 1203; D.C. Official Code §§ 2-501 et seq. (2012 Repl. & 2016 Supp.)), binding case law, existing government contract provisions and modifications, and applicable judgments or settlements.

101.4 These regulations shall apply to all new, pending, and existing claims, whether the injury giving rise to such claim, occurred before or after the date of these rules.

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by a Final Rulemaking published at 57 DCR 12224 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8767 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 101

7 DCMR § 102 FORMS

102.1 Any notices, claims, requests, applications, or certificates that the Act or this chapter requires to be made shall be on approved forms.

102.2 All approved forms shall be obtained from the Program.

102.3 The following forms are approved:

Form A-1 – Employee Request for Calculation and Certification of Award;

Form 1 – Employee’s Notice of Injury / Claim for Continuation of Pay;

Form CA1 – Request to Reinstate COP;

Form 2 – Employing Agency’s Report of Injury / Response to COP Request;

Form CA2 – Election of COP Charge Back;

Form 3 – Physician’s Report;

(f-1) Form 3S – Supplemental Physician’s Report;

Form 3RC – Annual Medical Recertification;

Form 3A – Employee Statement of Medical History;

Form CA3 – Employing Agency Report of Return to Work;

Form 4 – Employee Authorization for Release of Medical Records;

[Repealed];

Form 6 – Employee Authorization for Release of PSWCP Records;

Form 7 – Employee Request for PSWCP File;

Form CA7, Part A – Employee Claim for Compensation;

Form CA7, Part B – Employing Agency Statement;

Form 8 – Employee Report of Earnings;

Form 9 – Employee Application for Hearing Appeals Forms;

(q-1) Form 9A – Appeal to Chief Risk Officer;

(q-2) Form 9H – Request for Hearing before Chief Risk Officer;

(q-3) Form 9PH – Provider Request for Hearing;

(q-4) Form 9RC – Provider Request for Reconsideration;

Form CA10 – Request for Leave Restoration;

Form 10 – Agreement to Off-set;

Form 11 – Employee Request for Travel Reimbursement;

Form 12 – Employee Claim for Permanent Disability Compensation;

Form 12A – Employee Request for Hearing on Permanent Disability;

(v-1) Form 13 – Employee Request for Waiver or Appeal of Overpayment;

(v-2) Form 13F – Employee Financial Statement Form;

(v-3) Form 15 – Employee Representative Authorization Form;

(v-4) Form 16 – Employee Change of Address Form;

Form MR – Request for Medical Reimbursement;

[REPEALED];

Form M3 – Request to Change Treating Physician; and

Form M4 – Request for Pre-authorization of Medical Procedure.

102.4 Nothing in this section shall be construed to limit the number of forms approved by the Program.

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by a Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by a Final Rulemaking published at 57 DCR 12224 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8767 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017); as amended by Final Rulemaking published at 66 DCR 4246 (April 5, 2019). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 102

7 DCMR § 103 INFORMATION IN PROGRAM RECORDS

103.1 All records relating to claims for benefits, including copies of such records maintained by an Employing Agency, are considered confidential and may not be released, inspected, copied, or otherwise disclosed except as permitted by the Freedom of Information Act (D.C. Official Code §§ 2-531 et seq. (2012 Repl.)), and in accordance with a signed Form 6, Employee Authorization for Release of PSWCP Records.

(a) Charges for services rendered under this section shall be governed under 1 DCMR § 408.

(b) This section shall not apply to a claimant’s or claimant’s representative’s request for files.

103.2 A claimant or claimant’s representative seeking copies of or an appointment to review his or her official PSWCP file shall complete and submit Form 7 to the Program. A claimant seeking copies of PSWCP–related documents in the custody of the Employing Agency should follow the procedures established by that agency.

103.3 The Program shall provide the claimant with access to his or her Program file at a mutually convenient time within five (5) business days after a request for copies or to review the file is made. The claimant shall be entitled to one (1) set of copies of the documents in the file in electronic format or hard copy. Additional electronic or hard copies of documents in the file that have already been provided shall be provided at the cost of five cents (5¢) per page.

103.4 While an employing agency may establish procedures that an injured employee or beneficiary should follow in requesting access to documents it maintains, any decision issued in response to such a request must comply with the rules contained in § 103 of this chapter.

103.5 No employing agency has the authority to issue determinations with respect to requests for the correction or amendment of records contained in or covered by the Program. That authority is within the exclusive control of the Program. Thus, any request for correction or amendment received by an employing agency must be referred to the Program for review and decision.

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by a Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by a Final Rulemaking published at 57 DCR 12224 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8767 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017); as amended by Final Rulemaking published at 66 DCR 4246 (April 5, 2019). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 103

7 DCMR § 104 NOTICE OF INJURY; EMPLOYEE OR REPRESENTATIVE ACTION

104.1 Notice of an employee’s injury or death shall be given in accordance with Section 2319 of the Act (D.C. Official Code § 1-623.19) or § 104.6 of this chapter. Notice of recurrence of disability or medical condition shall be given in the same manner as a notice of injury.

104.2 The notice required by § 104.1 of this chapter shall be deemed given upon:

(a) Electronic submission of a workers’ compensation incident report through the Program’s online portal, as designated on the Office of Risk Management’s website, or the filing of Form 1 in hard copy with the Program or employee’s immediate supervisor; and

(b) The Program or employee’s immediate supervisor’s receipt of the following completed documents:

(1) Form 4 – Employee Authorization for Release of Medical Records; and

(2) IRS Form 4506-T – Request for Transcript of Tax Return.

104.3 The workers’ compensation incident report and Form 1 shall:

(a) Be in writing;

(b) Be signed by the individual giving notice; and

104.4

(a) When notice is given in accordance with § 104.1 of this chapter, the person giving notice shall designate an email address(es) to receive notices and correspondence from the Program. The person giving notice shall be responsible for checking the designated email account for notices and correspondence from the Program. Anyone who cannot comply with this provision may apply to the Program for a waiver. A waiver shall be granted, where good cause is established.

(b) While the Program may mail notices or correspondence to the designated physical mailing address, any notice or correspondence sent to the designated email address, unless returned, shall be presumed received and the date of issuance shall be used to calculate any deadlines that arise from the notice or correspondence issued.

104.5 “Actual knowledge” under Section 2319(b)(1) of the Act means, within thirty (30) days of the injury, that:

(a) The employing agency prepared a written report in the regular course of duty that met the requirements of Sections 2319(a)(5), 2319(a)(6) and 2319(b)(1) of the Act; or

(b) The Program is in possession of a written report by the employing agency prepared in the regular course of duty, that meets the requirements of 2319(a)(5), 2319(a)(6), and 2319(b)(1) of the Act.

104.6 An exception for providing timely adequate notice under Section 2319(b)(2) of the Act (D.C. Official Code § 1-623.19(b)(2)) may be granted only where the Chief Risk Officer or his or her designee finds a satisfactory reason as to why adequate notice could not be given in a timely manner.

104.7 Notice of aggravated injury shall be provided pursuant to §§ 104.1 through 104.6 of this chapter within thirty (30) days from the discrete event or occurrence that aggravated, worsened or exacerbated the employee’s pre-existing disease, illness or condition.

104.8 Notice of recurrence of disability shall be provided pursuant to §§ 104.1 through 104.6 of this chapter within thirty (30) days from the date of recurrence of disability.

104.9 Notice of latent disability shall be provided pursuant to §§104.1 through 104.6 of this chapter within thirty (30) days of the earlier of:

(a) The date on which the employee first sought medical attention for the employee’s condition and was aware or, by the exercise of reasonable diligence should have been aware, of the causal relationship between the claimant’s condition and employment, whether or not the employee ceased work; or

(b) The date on which the employee became disabled and was aware or, by the exercise of reasonable diligence should have been aware, of the causal relationship between the claimant’s disability and employment.

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Final Rulemaking published at 29 DCR 5196 (November 26, 1982); as amended by Final Rulemaking published at 47 DCR 7484 (September 15, 2000); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12225 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8768 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017); as amended by Final Rulemaking published at 66 DCR 4246 (April 5, 2019). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 104

7 DCMR § 105 NOTICE OF INJURY, DISEASE OR DEATH; EMPLOYING AGENCY ACTION

105.1 In accordance with Section 2320 of the Act (D.C. Official Code § 1-623.20), the immediate supervisor of an employee shall report any injury to the employee that results in the employee’s death, bodily harm, or probable disability to the Program by telephone or through the Program’s online portal, as designated on the Office of Risk Management’s (ORM) website.

105.2

(a) The immediate supervisor shall make an initial report of injury to the Program through the Program’s online portal found on ORM’s website within twenty-four (24) hours of learning of the injury, and preferably before the end of the shift during which the supervisor learned of the injury.

(b) No later than three (3) days after receipt of a grant access link requesting additional information from the Program, the immediate supervisor shall log onto the online portal through the grant access link and submit the requested information through the online portal.

105.3 If an immediate supervisor receives Form 1, the immediate supervisor shall report the incident in accordance with § 105.2 of this chapter.

105.4 The immediate supervisor shall supply all information identified in the online portal and upload all available supporting documentation through the online portal at the time the report of injury is submitted.

105.5 If an employee elects COP, the employing agency shall respond to the employee’s request for COP in accordance with §109 of this chapter.

105.6 The immediate supervisor shall complete and submit supplemental reports to the Program as requested. The supplemental reports shall contain, but not be limited to:

(a) Statements from witnesses confirming or refuting the employee’s allegations concerning the accident or injury;

(b) Statements, when requested, to give additional details of the accident or incident;

(c) Statements regarding whether the employee, to the immediate supervisor’s knowledge, had a similar injury or incident prior to the alleged injury, and if so, full details of the prior injury or incident and associated medical reports; and

(d) Statements of other injuries or incidents of a similar character and the full details.

105.7 The immediate supervisor shall complete and return to the Program Form CA-3, Employing Agency Report of Return to Work on day fourteen (14) and the last day of COP, as provided at Section 2318(b)(2) of the Act.

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by a Final Rulemaking published at 57 DCR 12224, 12227 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8769 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017); as amended by Final Rulemaking published at 66 DCR 4246 (April 5, 2019). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 105

7 DCMR § 106 NOTICE OF INJURY; PSWCP ACTION

106.1

(a) Promptly, after receiving notice of an employee’s injury or death, the Program shall:

(1) In the event of injury, notify the employee or employee’s representative that a report of injury has been received for the employee, if the report was filed by the employing agency;

(2) In the event of an employee’s death, notify eligible beneficiaries of record that a report of death of the employee has been received; and

(3) Provide the employee, employee’s representative, or eligible beneficiaries, as applicable, with instructions on how to file a claim for workers’ compensation.

(b) The Program’s failure to provide notification pursuant to this subsection shall not be prima facie evidence of good cause for a delay in submitting a claim.

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981);as amended by Final Rulemaking published at 47 DCR 7484 (September 15, 2000); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12228 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8769 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017); as amended by Final Rulemaking published at 66 DCR 4246 (April 5, 2019). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 106

7 DCMR § 107 CONTINUATION OF PAY (COP), ELIGIBILITY

107.1 To be eligible for COP, an employee must:

(a) Experience a traumatic injury;

(b) Be medically unable to work due to the traumatic injury; and

107.2 Employees within the meaning of Section 2301(1)(B) and (C) of the Act are not eligible for COP or deductions under § 128 of this chapter, unless the employee is also an employee within the meaning of Section 2301(1)(A) of the Act.

107.3 The term “day(s)” for the purpose of Section 2318(b) of the Act means calendar day(s).

107.4 An employee is only eligible for COP for the period during which he or she is placed out of work by a qualified health professional as a result of a work injury. For purposes of COP, a work injury is a traumatic injury that is sustained by an employee at work and is not the result of the injured employee’s intentionally wrongful act.

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Final Rulemaking published at 47 DCR 7484 (September 15, 2000); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12228 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8769 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017); as amended by Final Rulemaking published at 66 DCR 4246 (April 5, 2019). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 107

7 DCMR § 108 COP, EMPLOYEE’S RESPONSIBILITIES

108.1 To file a claim for COP, the employee or employee’s representative shall:

(a) Submit notice of injury pursuant to § 104 of this chapter and complete the indicated portion for COP as soon as possible, but no later than thirty (30) days after the traumatic injury;

(b) Submit Forms 3, 3A, 4, and IRS Form 4506-T to the Program through the Program’s designated online portal or by mail or fax or to the employee’s immediate supervisor by hand delivery;

(c) Ensure that medical evidence supporting disability resulting from the claimed traumatic injury, including a statement as to when the employee can return to his or her date of injury job, is provided to the employing agency’s workers’ compensation coordinator and the Program within ten (10) calendar days after the claim for COP is filed;

(d) Cooperate with the Program and the employing agency’s workers’ compensation coordinator in developing the claim; and

(e) Ensure that the qualified health professional specifies work limitations and that the work limitation information is provided to the employee’s immediate supervisor, the employing agency’s workers’ compensation coordinator, and the Program within ten (10) calendar days after the claim for COP is filed.

108.2 An employee’s COP status shall not be construed to preclude the employee from filing a claim for workers’ compensation pursuant to § 115 of this chapter. COP payments shall terminate upon the Program’s acceptance or denial of the claim for workers’ compensation.

108.3 Employee or employee’s representative must tender evidence in support of the employee’s out-of-work status to the workers’ compensation coordinator no later than the date by which time must be approved in PeopleSoft for the applicable pay period.

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12229 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8771 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017); as amended by Final Rulemaking published at 66 DCR 4246 (April 5, 2019). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 108

7 DCMR § 109 COP, EMPLOYING AGENCY’S RESPONSIBILITIES

109.1 After the employing agency learns of a work injury sustained by an employee, it shall:

(a) Refer the employee to ORM’s Public Sector Workers’ Compensation website;

(b) Advise the employee of the right to receive COP for any period of disability;

(c) Review and respond to the employee’s claim for COP by completing the COP determination section of the Program’s online form and uploading all relevant documents, forms, and pertinent information (including the basis for any controversion) to the Program online portal within three (3) business days after receiving a request for additional information through a grant access link or the employee’s completed Form 1, Form 3, Form 3A, Form 4, and Form IRS 4506-T from the employee; and

(d) If controverting employee’s claim for COP, inform the employee of the basis for doing so.

109.2 An employing agency that learns of a recurrent disability arising out an injury for which a claim for COP has already been accepted shall place the employee on COP status if:

(a) The employee has any time remaining from the last time the employee was on COP status for the same injury;

(b) No claim for wage-loss compensation has been accepted by the Program; and

(c) The employee submits evidence in support of the recurrence of disability and its causal relation to the original work injury.

109.3 An employing agency’s failure to provide an employee with the requisite forms as outlined in § 109.1 shall not be prima facie evidence of good cause for a delay in submitting a claim for compensation under Section 2321 of the Act.

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12229 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8771 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017); as amended by Final Rulemaking published at 66 DCR 4246 (April 5, 2019). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 109

7 DCMR § 110 CONTROVERSION OF COP

110.1 COP shall not be furnished if controverted. COP may be controverted in the following situations:

(a) When the traumatic injury occurred off the employing agency’s premises and the employee was not in the course of employment. For the purpose of this section, course of employment means acting in furtherance of the scope of the employing agency;

(b) The employee was not in the course of employment;

(c) When the traumatic injury was caused by the employee’s willful misconduct, when the employee intended to bring about the injury or death on himself or herself or another person, or when the employee’s intoxication was the cause of the injury;

(d) When the traumatic injury does not prevent the employee from working;

(e) When the employee was not in active pay status at the time of traumatic injury (for example, in the case of leave without pay or absence without official leave);

(f) When the stoppage of work first occurs thirty-one (31) days or more after the date of injury;

(g) When the employee initially reports the injury after termination of employment;

(h) When the Program denies the compensation claim;

(i) When the disability was not caused by a traumatic injury;

(j) No notice was provided pursuant to 2319 of the Act;

(k) When the employee fails to comply with §§ 107 and 108 of this chapter;

(l) If the employee is not eligible for COP;

(m) When the employee fails to return to work, when offered alternative work that accommodates any limitations arising out of the disability; or

(n) When the medical evidence does not support the claim for COP.

110.2 If any provisions of § 110.1 apply, the employing agency may controvert COP by completing the indicated portion of Form 2 and submitting detailed information in support of the controversion to the Program. The employing agency may rely on information submitted by the employee or obtained through investigation.

110.3 Failure to provide evidence in support of an employee’s out-of-work status may result in controversion of COP for that pay period.

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12229 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8771 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017); as amended by Final Rulemaking published at 66 DCR 4246 (April 5, 2019). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 110

7 DCMR § 111 DETERMINATION OF COP

111.1 [REPEALED]

111.2 The final determination on entitlement to COP rests with the Program.

111.3 Nothing in this chapter shall be construed to preclude the Program from controverting COP independent of the employing agency’s action or inaction.

111.4 COP shall continue for twenty-one (21) days (unless the employee is hired before January 1, 1980, then forty-five (45) days), unless the claim for COP is controverted, or the claim for compensation is accepted or denied by the Program.

111.5 The employing agency and/or Program’s decision not to controvert COP and the Program’s decision not to uphold controversion does not create a presumption, nor shall it be evidence that the injury is compensable under this chapter or the Act.

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12229 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8771 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017); as amended by Final Rulemaking published at 66 DCR 4246 (April 5, 2019). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 111

7 DCMR § 112 CALCULATION OF COP

112.1 Once an employee makes a claim for COP, the first three (3) days of leave must be charged to leave without pay, unless the disability:

(a) Exceeds fourteen (14) calendar days; or

(b) Is followed by permanent disability.

112.2 The first three (3) days under § 112.1 means the first three (3) days during which the employee was scheduled to work but was absent due to disability that was caused by traumatic injury.

(a) A “day” for purposed of this subsection consists of eight (8) hours. Three (3) days consists of twenty-four (24) hours.

112.3 If §§ 112.1(a) or (b) apply, then those first three (3) days of temporary disability shall count towards Continuation of Pay as provided in Section 2318(b)(2) of the Act.

112.4 Subject to the provisions at §§ 112.1 to 112.3 and 113.2, the Employing Agency shall furnish continuation of pay to the employee as follows:

(a) To employees hired before January 1, 1980, for a period not to exceed forty-five (45) consecutive days or until the Program has either accepted or denied the employee’s claim for compensation, whichever occurs first; and

(b) To all other employees for a period not to exceed twenty-one (21) consecutive days or until the Program has either accepted or denied the employee’s claim for compensation, whichever occurs first.

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12229 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8771 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017); as amended by Final Rulemaking published at 66 DCR 4246 (April 5, 2019). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 112

7 DCMR § 113 TERMINATION OF COP

113.1 COP shall terminate:

(a) Pursuant to Section 2318(b)(2) of the Act;

(b) For the period in which it is controverted by the Agency or the Program; or

113.2 If COP has been paid to an employee whose claim for compensation is subsequently and finally denied or whose COP is later controverted pursuant to § 110 of this chapter, the employing agency shall forward Form CA2 to the employee for the employee to elect whether the COP payments made shall be charged to the employee’s sick or annual leave. The employee shall be required to fill out and return the form to the employing agency within thirty (30) days. If the employee has insufficient sick or annual leave, the payments under this chapter shall be treated as the employee’s debt to the District government under Section 2903 of the Act.

113.3 Once the employee returns Form CA2 to the employing agency, it shall forward it to the Office of Pay and Retirement Services in the Office of the Chief Financial Officer for processing.

113.4 If the employee does not return the form to the employing agency within thirty (30) days, the employing agency shall charge the COP payments to sick leave or, if the employee does not have any available sick leave, to annual leave. If the employee has no leave available, the employing agency shall treat the COP payments as the employee’s debt to the District government according to Section 2903 of the Act.

113.5 If the employee recovers from disability and returns to work, then becomes disabled again and stops work, the employer shall pay any of the COP due under Section 2318(b)(2) not used during the initial period of disability where:

(a) The employee has already made a claim for COP within (thirty) 30 days of the injury;

(b) The Program has not accepted or denied the claim for disability compensation;

(d) The disability recurs and the employee stops work within twenty-one (21) or forty-five (45) calendar days (whichever is applicable under Section 2318 of the Act) of the time the employee first returned to work following the initial period of disability; and

(e) Pay has not been continued for the permitted period under Section 2318 of the Act.

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12229 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8771 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 113

7 DCMR § 114 LEAVE REINSTATEMENT

114.1 Once an employing agency accepts a claim for COP or the Program accepts a claim for wage-loss compensation, an employee shall not be required to use his or her sick or annual leave while the employee is not working as a result of the compensable injury, except as provided in §§ 112 and 113 of this chapter.

114.2 [REPEALED]

114.3 An employee who has used leave prior to the Program’s acceptance of his or her claim for indemnity compensation may apply for leave reinstatement under this section.

114.4 An employee who is eligible for leave restoration under this section may request leave restoration by completing Form CA10 and submitting the form to the Program.

114.5 Once the Program determines that an employee is eligible to have leave reinstated pursuant to § 114.3 of this chapter, sixty-six and two-thirds percent (66 2/3%) or, if the employee is entitled to augmented pay pursuant to Section 2310 of the Act, seventy-five percent (75%), of the employee’s leave will be reinstated upon the acceptance of the claim, provided that employee agrees to:

Off-set his or her award for retroactive benefits by the total amount needed to reinstate his or her leave;

(b) Pay, if any, the difference between employee’s unadjusted wage-loss compensation rate and the total value of leave to be restored; and

(c) Indicate on Form 10 the employee’s consent to the off-set of benefits for reinstatement of leave and returning it to the Program within seven (7) days of receiving the Program’s determination.

114.6 Once the Program receives Form 10, the Program shall forward the form to the Office of Pay and Retirement Services in the Office of the Chief Financial Officer for processing.

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12229 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8771 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017); as amended by Final Rulemaking published at 66 DCR 4246 (April 5, 2019). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 114

7 DCMR § 115 CLAIM FOR PSWCP BENEFITS; CLAIMANT OR REPRESENTATIVE ACTION

115.1 The claimant or claimant’s representative shall provide all information required by the Program to make a determination on the claim.

115.2 A claim for compensation is deemed filed only upon:

(a) The filing of a claim for workers’ compensation through the Program’s online portal, as designated on the Office of Risk Management’s website, or the filing of Form CA7, Part A in hard copy with the Program; and

(b) The Program’s receipt of the following completed documents:

(1) Form 3 – Physician’s Report of Employee’s Injury;

(2) Form 3A – Employee’s Statement of Medical History;

(3) Form 4 – Employee Authorization for Release of Medical Records; and

(4) IRS Form 4506-T – Request for Transcript of Tax Return.

115.3 Forms shall be deemed incomplete for the purpose of § 115.2, if any information is omitted or incomplete upon submission.

115.4 At the time the claimant or claimant’s representative submits a claim, an email address and physical mailing address must be provided for the claimant and if applicable the claimant’s representative, for the purpose of receiving Program notices and correspondence. Any notice or correspondence sent to the designated email address or physical mailing address shall be presumed received, unless returned.

115.5 In the case of the death of an employee, the claimant or claimant’s representative shall also provide documentation establishing the claimant’s relationship to the deceased. Documentation may include:

A certified copy of a birth certificate;

A certified copy of a marriage license;

Documentation of the executor of the employee’s estate; or

Other documentation satisfactory to the Program.

115.6 The employee or employee’s representative shall have the employee’s health care professional complete and return to the Program a Form 3, Physician’s Report of Employee’s Injury, which shall comport with the requirements of §§ 125.2 and 137.3.

115.7 The employee shall complete, sign, and return to the Program, Form 3A, Employee’s Statement of Medical History, which shall:

(a) Describe any and all accidents the employee was involved in, or physical disability or illness the employee suffered, prior or subsequent to the reported injury;

(b) For each accident, illness, or physical disability, identify the time, date, circumstance, and location of the accident or incident, the parties involved, the disposition of any subsequent trial or legal action(s), any injuries relating from the previous accident(s) or incident(s), and the hospital, medical facilities, doctors, physicians, dentists, or any other individual that treated any injury, illness, or physical disability;

(c) Identify the physician who treated the employee and the approximate dates of such treatments, if employee alleges aggravation of a previous injury or condition;

(d) Describe in detail each instance during the past five (5) years that the employee has been absent from employment due to an illness or injury, including the nature and dates of each such illness or injury. The employee or employee’s representative shall specify the date and time for all absences from employment due to each illness and injury claimed; and

(e) Describe any similar condition, disability, or injury that occurred prior to the alleged injury or any pre-existing condition that may be related to the condition or disability caused by the injury.

115.8 The claimant or claimant’s representative shall submit proper medical documentation as requested by the Program to document the employee’s ongoing injury and substantiate the employee’s absence from work to justify continued payment of wage-loss compensation. These documents shall include, but are not limited to, the following:

(a) Statements and medical documentation regarding any similar condition, disability, or injury that occurred prior to the alleged injury or any pre-existing condition that may be related to the injury;

(b) Statements and medical documentation regarding any other injury or incident of a similar character; and

115.9 After a claim is initiated, a claimant who wishes to continue representation by his or her representative must complete and return Form 15 – Declaration of Representative Form to the Program, so the claimant’s representative may continue to receive communication and information related to the claim, unless the representative is appointed by a court of law or is the claimant’s attorney, and a court order or retainer agreement, respectively, is submitted to the Program in lieu of Form 15. If the claimant is a minor child, documentation establishing legal guardianship may be submitted in lieu of Form 15.

115.10 The claimant or claimant’s representative shall file supplemental reports when required by the Program or when there is any change in information provided to the Program.

115.11 A claimant seeking to supplement his or her original claim to add additional disabilities or conditions arising out of the same injury, but not already reported, shall:

(a) File a supplemental claim to add the additional disability or condition within two (2) years after the earlier of:

(1) The date on which the claimant first sought medical attention for the additional disability or condition and was aware or, by the exercise of reasonable diligence should have been aware, of the causal relationship between the claimant’s condition and employment, whether or not the claimant ceased work; or

(2) The date on which the claimant became disabled and was aware or, by the exercise of reasonable diligence should have been aware, of the causal relationship between the claimant’s disability and employment.

(b) The supplemental claim shall include a signed statement under penalty of perjury explaining the cause for delay in reporting the additional disability or condition.

115.12 Claims for aggravated injury shall be filed as an original claim for compensation pursuant to Section 2321 of the Act (D.C. Official Code § 1-623.21) and §§ 115.1 through 115.10 of this chapter within two (2) years from the injury that aggravated, worsened or exacerbated the employee’s pre-existing disease, illness or condition, unless otherwise authorized by law.

115.13 Claims for latent disability shall be filed pursuant to Section 2322 of the Act (D.C. Official Code § 1-623.22) and §§ 115.1 through 115.10 of this chapter within two (2) years after the earlier of:

(a) The date on which the claimant first sought medical attention for the claimant’s condition and was aware or, by the exercise of reasonable diligence should have been aware, of the causal relationship between the claimant’s condition and employment, whether or not the claimant ceased work; or

(b) The date on which the claimant became disabled and was aware or, by the exercise of reasonable diligence should have been aware, of the causal relationship between the claimant’s disability and employment.

115.14 A claim for recurrence of disability:

(a) Shall include medical evidence to establish that the recurrence is for the same condition and injury for which the claim was originally accepted and be filed pursuant to §§ 115.1 through 115.10 of this chapter within one (1) year after the date wage-loss and medical compensation terminates or, if such termination is appealed, within one (1) year after the date a final order is issued by a judicial entity, and

(b) Shall not obtain where the inability to work occurred because a modified duty assignment made specifically to accommodate the employee's physical limitations due to his or her work-related injury or illness is withdrawn or when the physical requirements of such an assignment are altered so that they exceed his or her established physical limitations.

115.15 All other original claims for compensation for disability or death arising out of a single injury shall be filed within two (2) years after the injury or death pursuant to Section 2321 of the Act and § 115 of this chapter, except as provided by Section 2322(a) of the Act (D.C. Official Code § 1-623.22(a)).

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12229 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8771 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017); as amended by Final Rulemaking published at 66 DCR 4246 (April 5, 2019); as amended by Final Rulemaking published at 67 DCR 7481 (June 12, 2020). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 115

7 DCMR § 116 CLAIM FOR PSWCP BENEFITS; EMPLOYING AGENCY ACTION

116.1 The employing agency shall supply all information requested by the Program.

116.2 No later than twenty-four (24) hours after the employee’s return to work, the employing agency shall complete and return Form CA3 – Employing Agency Report of Return to Work to the Program.

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12229 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8771 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 116

7 DCMR § 117 CLAIM FOR PSWCP BENEFITS; PROGRAM ACTION - INVESTIGATIONS

117.1 The Program shall conduct any investigation that is necessary to make an initial determination (ID) of eligibility for benefits under this chapter, including directing claimants for Additional Medical Examinations pursuant to Section 2323 of the Act.

117.2 Claimants are required to cooperate with all aspects of the Program’s investigation, including attending physical examinations, and providing documentation of all medical services, earnings information, and dependent and marital status.

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12229 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8771 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 117

7 DCMR § 118 SUBPOENAS

118.1 The Program may issue subpoenas as part of its authority to conduct any investigation pursuant to this chapter.

118.2 Subpoenas issued pursuant to investigations authorized under this chapter may be issued for any of the following purposes:

(a) To compel the attendance of employees, claimants, medical providers or other witnesses within a radius of one hundred miles of the District of Columbia at interviews, alive and well checks, depositions, settlement conferences, or any other inquiry being held for the purposes of obtaining information about a claim;

(b) To administer an oath or affirmation and to examine employees, claimants, medical providers or other witnesses; or

118.3 A subpoena issued under this section shall provide notice to the recipient of the legal authorization for the subpoena, the testimony or evidence being sought by the Program, the deadline for providing the testimony or evidence, and the telephone number and mailing address of the authorizing official issuing the subpoena.

118.4 Subpoenas may be issued pursuant to this section only upon written authorization of the Chief Risk Officer, as attested to by the signature of the Chief Risk Officer, or his authorized designee.

118.5 Subpoenas issued pursuant to this section shall be enforced by the Superior Court of the District of Columbia.

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12229 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8771 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 118

7 DCMR § 119 EVIDENCE AND BURDEN OF PROOF; CLAIMS

119.1 For initial claims, the forms identified in § 115 of this chapter describe the basic evidence required. The Program may send a request for additional evidence to the claimant and to his or her representative, if any; however the burden of proof still remains with the claimant. Evidence should be submitted in writing. The evidence submitted must be reliable, probative, and substantial. Each claimant seeking compensation must establish, by a preponderance of the evidence, the following:

(a) The claim was filed within the time limits specified or otherwise permitted by the Act;

(b) The injured person was, at the time of injury, an employee within the meaning of § 2301(1) of the Act;

(d) The injury, disease or death occurred while the claimant was in the performance of duty;

(e) The medical condition for which compensation or medical benefits is claimed is causally related to the claimed injury, disease or death. Neither the fact that the condition manifests itself during a period of District government employment, nor the belief of the claimant that factors of employment caused or aggravated the condition, is sufficient in itself to establish causal relationship; and

(f) If the claimant seeks indemnity compensation, the nature, extent, and duration of his or her inability to work and its causal connection to the work related injury, disease, or death.

119.2 For a claim of recurrence of disability, the employee has the burden of establishing by a preponderance of the evidence that

(a) The claim was timely filed within the time limits prescribed in this chapter;

(b) That the disability is causally related to an original injury that has been accepted by the Program; and

119.3 In seeking to file a supplemental claim pursuant to § 115.11 of this chapter, the claimant must establish the following by a preponderance of the evidence:

Good cause for the delay in reporting;

That the additional disability or condition is timely reported in accordance with § 115.11 of this chapter;

That the additional disability or condition is compensable under Section 2302 of the Act;

If the claimant seeks indemnity compensation, the nature and extent of his or her inability to work and its causal connection to the work-related injury, disease, or death; and

That the additional disability or condition is directly related to the original injury for which the claim was initially accepted.

119.4 For claims for permanent disability, including those filed pursuant to Section 2306a of the Act, the claimant must establish, by a preponderance of the evidence, that he or she has reached maximum medical improvement and suffers a permanent impairment that is compensable pursuant to Section 2307 of the Act.

119.5 In all claims, the employee is responsible for submitting, or arranging for submittal of, a medical report from the treating physician. For indemnity compensation benefits, the employee must also submit medical evidence showing that the condition claimed is disabling and the nature and extent of the disability to justify continued payment of indemnity compensation.

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12229 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8771 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017); as amended by Final Rulemaking published at 66 DCR 4246 (April 5, 2019). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 119

7 DCMR § 120 DECISIONS ON ENTITLEMENT TO BENEFITS

120.1 The Program shall make an Initial Determination (ID) on a newly filed claim within thirty (30) days of the date the claim was first filed with the Program.

120.2 The ID shall contain findings of fact and a statement of reasons. It shall be accompanied by information about the claimant's appeal rights, which may include the right to a hearing, and/or a review by the Department of Employment Services, Office of Hearings and Adjudication or Office of Administrative Hearings, as provided in § 155 of this chapter.

120.3 In making an ID, the Program shall consider all relevant evidence in the claim file, including all relevant medical evidence, and issue awards for or against medical, temporary or permanent disability benefits, where appropriate.

120.4 An ID may deny benefits, in whole or in part, based upon the following factors:

(a) The employee’s lack of a compensable injury pursuant to Section 2302 of the Act;

(b) Insufficient proof;

(c) The employee’s failure to cooperate with treatment or rehabilitation recommendations or with Program requirements for providing information; or

(d) Any other grounds, such as fraud, that reasonably demonstrates that the employee is not entitled to benefits under the Act.

120.5 The ID is effective unless the employee succeeds on a request for hearing as provided in this chapter, or unless one (1) of the following circumstances occurs:

(a) The Program decides that the ID was issued in error;

(b) The Program receives additional information after issuance of the ID that requires the Program to issue an amended ID;

(d) The Program issued the ID under any other circumstance that would deem the ID legally invalid; or

(e) The Program accepts a supplemental claim filed pursuant to § 115.11.

120.6 If one (1) of the circumstances in § 120.5 occurs, the Program shall issue an amended ID.

120.7 The Program shall issue an amended Initial Determination (ID), if the claimant files a supplemental claim pursuant to § 115.11 and the Program determines that a claimant is entitled to benefits for the additional disability or condition pursuant to § 119.3.

120.8 The Program shall issue a Determination of Recurrent Disability (DRD) pursuant to §§ 120.2 through 120.6 if the claimant files a claim for recurrence of disability pursuant to § 115.14 and the claimant meets the requirements of § 119.2.

120.9 The Program shall issue an Amended ID or DRD either awarding or denying the supplemental claim or claim for recurrence of disability, respectively, filed pursuant to §§ 115.11 or 115.14, within thirty (30) days of the Program’s receipt of all forms required pursuant to §§ 115.1 through 115.10 of this chapter.

120.10 The Program shall issue a Notice of Benefits within fourteen (14) days of an ID or DRD granting an award of compensation. The Notice of Benefits shall set forth the calculation of benefits pursuant to the award.

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12229 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8771 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017); as amended by Final Rulemaking published at 66 DCR 4246 (April 5, 2019). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 120

7 DCMR § 121 DECISIONS ON ENTITLEMENT TO BENEFITS; ABEYANCE STATUS

121.1 Unless a decision is held in abeyance due to extenuating circumstances, a newly filed claim for benefits shall be deemed accepted by the Program if the Program does not issue findings and an award for or against payment of compensation within thirty (30) days of the date the claim was first filed. A claim shall be deemed accepted only until such time as the Program issues an initial determination (ID), at which time the claim may be denied as though it had never been deemed accepted. This subsection only applies to newly filed claims, including supplemental claims and claims of recurrences of disability.

121.2 When a claim is deemed accepted pursuant to § 121.1 of this chapter, payment of compensation shall become effective on the thirty-first (31st) day after it is filed.

121.3 For purposes of this section “extenuating circumstances” means the Program is unable to make findings of fact in order to accept or deny an award for payment of compensation due to any of the following:

(a) The Program does not have sufficient medical evidence to make a determination;

(b) The employee has failed to cooperate with the Program in the assessment of the claim; or

(c) There is a delay in receiving information from the Employing Agency that is beyond the reasonable control of the Employing Agency.

121.4 If a decision is held in abeyance due to extenuating circumstances, the Program shall issue a notice prior to the expiration of the thirtieth (30th) day following the filing of the claim stating in detail the reasons for the abeyance. If the notice results from insufficient medical evidence to make a determination, the claimant shall promptly provide the Program with necessary medical records and appear for any additional medical examination requested by the Program.

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12229 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8771 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 121

7 DCMR § 122 MEDICAL BENEFITS AND SERVICES; GENERAL

122.1 Pursuant to Section 2303(a) of the Act (D.C. Official Code § 1-623.03(a)), the District government shall furnish to an employee or claimant who is injured while in the performance of duty the services, appliances, or supplies prescribed or recommended by a qualified health professional whom the Program has admitted into its Panel of Healthcare Providers, except as provided in § 125.7 of this chapter.

122.2 Payment for services, appliances, or supplies pursuant to Section 2303 of the Act (D.C. Official Code § 1-623.03(a)) shall only be made, where the services, appliances, or supplies are:

(a) Rendered for treatment of a condition that has been accepted as compensable under the Act by the Program or necessary for the Program to issue a compensability determination, and

(b) Ordered by a District of Columbia government medical officer or hospital, or a qualified health professional pursuant to the rules prescribed at § 124 of this chapter, subject to utilization review.

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12229 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8771 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017); as amended by Final Rulemaking published at 66 DCR 4246 (April 5, 2019). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 122

7 DCMR § 123 MEDICAL BENEFITS AND SERVICES; EMPLOYEE RESPONSIBILITY

123.1

(a) All medical services, appliances, or supplies provided to an injured employee or claimant must be pre-authorized by the Program in order to be paid or reimbursed by the Program, except as provided in paragraph (b) of this subsection.

(b) If there is a need for emergency treatment the employee or claimant may, without prior authorization by the Program, select a healthcare provider to provide reasonably necessary emergency medical care prescribed by a qualified health professional for an injury sustained in the performance of duty, and such medical services, appliances, or supplies may be paid or reimbursed by the Program, subject to utilization review, if notice of such medical care is given to the Program no later than thirty (30) days after the care is rendered.

123.2 In order for the Program to pay for the medical services, appliances, or supplies provided by a healthcare provider and prescribed by a qualified health professional, the healthcare provider must be a member of the Program’s Panel of Healthcare Providers, except as provided in §§ 123.1(b) and 123.4 of this chapter.

123.3 The Program’s reimbursement for any expenses incurred for medical services, appliances, or supplies provided pursuant to Section 2303 of the Act (D.C. Official Code § 1-623.03) shall be limited by the fee schedule prescribed in this chapter.

123.4 Once an employee or claimant selects a qualified health professional from the Program’s Panel of Healthcare Providers, the Program will not pay for or reimburse the costs of medical care provided or prescribed by another qualified health professional without authorization of the Program, except as provided in § 123.1(b) of this chapter.

123.5 An employee or claimant who is not satisfied with medical services provided by the qualified health professional selected from the Program’s Panel of Healthcare Providers shall file Form M3 with the Program to request to change the qualified health professional, with justification in support of the request. The Program shall authorize a change where the Program finds the change is in the best interest of the employee or claimant.

123.6 An employee or claimant may request reimbursement of expenses for medical services, appliances, or supplies that are incurred prior to (i) acceptance of the claim or (ii) reinstatement of the claim pursuant to a compensation order by completing and submitting Form MR with a copy of the bill and medical record to the Program, provided such expenses have not otherwise been paid for by insurance.

(a) If the Program does not respond within thirty (30) days of receipt of a request for reimbursement submitted pursuant to this subsection, the Claimant may file a request for an audit to request review of the reimbursement request by the Chief Risk Officer pursuant to § 153 of this chapter.

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12229 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8771 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017); as amended by Final Rulemaking published at 66 DCR 4246 (April 5, 2019). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 123

7 DCMR § 124 MEDICAL BENEFITS AND SERVICES; PROGRAM RESPONSIBILITY

124.1 The Program shall establish a Program Panel of Healthcare Providers (hereinafter the “Panel”) to furnish medical services, appliances, or supplies to District government employees or claimants who are injured while in the performance of duty, in accordance with the Act and rules and regulations of the Program.

124.2

(a) The Program shall select members of the Panel based on the healthcare provider’s ability to cure, give relief, reduce the degree or length of injury, or aid in lessening the amount of the monthly compensation.

(b) A qualified health professional shall apply to be a member of the Panel, pursuant to an application issued by the Program. Any other healthcare provider may be designated a member by the Program without application.

(c) The Program may add and remove healthcare providers from the Panel at its discretion. A decision by the Program to remove a member from the Panel shall be final.

124.3 If the Program decides to remove a qualified health professional from the Panel, the Program shall give all of the claimants currently being treated by that qualified health professional notice of the decision, as well as a list of up to three (3) alternative Panel qualified health professionals, at least thirty (30) days before the qualified health professional is removed from the Panel.

124.4 The Program shall take appropriate steps to ensure that medical records are maintained in a confidential manner.

124.5 The Program may require a claimant to submit to physical examinations as frequently as may be reasonably required to investigate a claimant’s initial and continued eligibility for benefits under the Act, as provided at § 136 of this chapter.

124.6 Upon notification of an injury or acceptance of a claim for compensation, the Program shall provide the employee or claimant with a list of up to three (3) qualified health professionals from the Panel and inform the employee or claimant of the requirements in § 123 of this chapter.

124.7 Within thirty (30) days after receipt of a written request for prior authorization for any medical care, supply, or service, the Program shall provide the claimant and qualified health professional written notice approving, denying, or disputing the request. If no authorization is granted within thirty (30) days the medical care, supply, or service shall be deemed approved, provided the medical care, supply, or service is for a condition that has been accepted as compensable by the Program.

124.8 When the Program disputes or denies a request for prior authorization by a qualified health professional pursuant to § 124.7 of this chapter because the Program believes the necessity, character, or sufficiency of the medical care is improper, the Program shall:

(a) Provide written notice of the dispute or denial to the claimant and qualified health professional; and

(1) Initiate utilization review;

(2) Request a hearing on the matter before the Chief Risk Officer; or

(3) Provide, with the written notice of denial or dispute, information about the claimant’s rights to initiate utilization review and the claimant and the qualified health professional’s right to request a hearing before the Chief Risk Officer.

124.9 If the Program denies a request for prior authorization for medical care, pursuant to § 124.7 of this chapter on any basis other than the necessity, character, or sufficiency of the medical care, the Program shall:

(a) Provide written notice of the denial to the claimant and qualified health professional; and

(b) Provide, with the written notice of denial to claimant, information about the claimant’s right to appeal the decision to the Chief Risk Officer pursuant to § 156 of this chapter.

124.10 The Program shall not reimburse or pay costs incurred for services rendered by a healthcare provider who is not a member of the Program’s Panel of Healthcare Providers, unless otherwise authorized by law or regulation or awarded on appeal. Reimbursement for costs incurred for services rendered by non-Panel healthcare providers shall be subject to utilization review and limited by the fee schedule prescribed in this chapter.

124.11 The Program may enter into a provider agreement with a healthcare provider that sets forth the provisions of this chapter and additional terms and conditions relating to the provision of services to District government employees and claimants, as determined by the Program to be reasonable and necessary to ensure appropriate care, including fee and payment guidelines.

124.12 The Program shall issue a decision on a request for reimbursement of medical services, appliances, or supplies submitted by a claimant pursuant to § 123.6 of this chapter within thirty (30) days of receipt of Form MR and required supporting documentation. The Program’s decision shall include notice of claimant’s right to appeal pursuant to § 156 of this chapter.

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12229 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8771 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017); as amended by Final Rulemaking published at 66 DCR 4246 (April 5, 2019). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 124

7 DCMR § 125 MEDICAL BENEFITS AND SERVICES; HEALTHCARE PROVIDER RESPONSIBILITY

125.1 A healthcare provider who provides medical services, appliances, or supplies to an injured employee or claimant must comply with the provisions in this chapter.

125.2 Unless otherwise directed or required by the Program, the following information shall be included in a Form 3, Form 3S, Form 3RC, or other Program-approved medical report(s) submitted by a qualified health professional:

(a) Date(s) of examination and treatment, if any;

(b) History given by the employee;

(d) Results of diagnostic tests;

(e) Medical records reviewed;

(f) Diagnosis;

(g) Nature of injury;

(h) Manner and mechanism of injury, to include the qualified health professional’s opinion, with medical reasons and bases, as to the probable cause and mechanism of injury;

(i) Description of any other conditions found that are not due to the claimed injury, including indications of pre-existing conditions that may be the cause of or contribute to any alleged disabling condition;

(j) Treatment given, if any;

(k) Course of treatment, including treatment plan recommended for the claimed injury or recurrence of disability to bring about maximum medical improvement, if any;

(l) In the case of a claimed recurrence of disability, the qualified health professional’s opinion, with medical reasons and bases, as to causal relationship between the diagnosed condition(s) and the original work-place injury and resulting condition(s);

(m) Nature, extent, and expected duration of disability affecting the employee’s or claimant’s ability to work due to the injury;

(n) Prognosis for recovery, including an estimate regarding when the employee or claimant will be able to return to work; and

(o) All other material findings.

125.3 Unless otherwise authorized by the Program, a qualified health professional shall, within five (5) business days after any medical care is provided following the initial examination of the injured employee or claimant, transmit Form 3S or other Program-approved medical report(s) containing information required under § 125.4 of this chapter to the Program electronically at the email address or fax number designated on the Healthcare Provider Information Page of the Office of Risk Management website.

125.4 Unless otherwise authorized by the Program, within seven (7) business days after an initial examination of the injured employee or claimant, a qualified health professional shall transmit Form 3 or other Program-approved medical report(s) containing information required under § 125.4 of this chapter to the Program electronically at the email address or fax number designated on the Healthcare Provider Information Page of the Office of Risk Management website.

125.5 A healthcare provider who provides medical services, appliances or supplies, to an injured employee or claimant shall, at no cost, provide medical reports and records pertaining to the services, appliances, or supplies rendered no later than ten (10) days after receipt of the Program’s request for such reports and records.

125.6 A healthcare provider shall include in each medical report for services rendered under the Act, the code, as published by the American Medical Association (AMA) in the most current edition of the Current Procedural Terminology (CPT codes), for detailing the billing of each medical procedure provided by the healthcare provider and the diagnosis code established by the most recent edition of the International Classification of Diseases (ICD), as published by the U.S. Department of Health and Human Services, for diagnosing the claimant’s condition. If there is no standard CPT code for a procedure provided by the healthcare provider, additional CPT Codes may be prescribed by the Program, as published on the ORM website.

125.7 In order to be paid by the Program for compensable medical services, appliances, or supplies provided to an employee or a claimant, a healthcare provider must be a member of the Program’s Panel of Healthcare Providers at the time service is provided, unless:

The medical care is provided pursuant to § 123.1(b) of this chapter;

The healthcare provider belongs to a network of healthcare providers to which the Program has secured access to care for employees or claimants through a license or working agreement and within two hundred and forty (240) days after first treating an injured District government employee or claimant as a healthcare provider participating within such a network:

(1) Is designated a member of the Panel by the Program; or

(2) With respect to a qualified health professional, applies for admission to the Program’s Panel of Healthcare Providers (only for so long as the application is pending).

The healthcare provider is a pharmacy or pharmacist licensed in the jurisdiction where medication or prescription drugs are dispensed.

125.8 A qualified health professional must apply to be a member of the Program’s Panel of Healthcare Providers to provide or prescribe medical care to a claimant or employee, and any other healthcare provider must be designated a member of the panel by the Program in order to provide services, appliances or supplies, except as provided in § 125.7.

125.9 A healthcare provider selected to be a member of the Program’s Panel of Healthcare Providers shall:

Submit the following documentation, as applicable, pertaining to the jurisdiction in which the healthcare provider is licensed

(1) License number;

(2) Board name;

(3) The name of the state in which the provider is certified or licensed; and

(4) At the Program’s request, information regarding any sanctions the provider may have received since licensure or certification;

Possess and maintain appropriate insurance as determined by the Program;

Notify the Program of any material changes, including changes to licensure, insurance coverage, staff who provide treatment to injured employees or claimants, or certification or history of sanctions or adverse action taken against the provider or staff, within fourteen (14) days of a change;

Comply with the payment guidelines prescribed by the District of Columbia Office of the Chief Financial Officer, published on the Healthcare Provider Information Page of the Office of Risk Management website; and

Comply with the terms and conditions of a Provider Agreement (if any).

125.10 A healthcare provider who provides compensable medical care to a District government employee or claimant shall comply with the medical billing rules prescribed at § 126 of this chapter as a condition for payment of services rendered.

125.11 Unless the medical care is needed for emergency care pursuant to § 123.1 of this chapter or the service to be rendered is limited to an office or clinic visit with a qualified health professional, any prescribed medical services, appliances, or supplies requires prior authorization from the Program.

125.12 To seek prior authorization, a qualified health professional shall complete and electronically submit Form 3PA to the Program in the manner prescribed on the Healthcare Provider Information page found at the ORM website.

125.13 The cost of physical examinations ordered by the Program shall be paid by the Program.

125.14 A Panel healthcare provider who provides medical services, appliances, or supplies to a District government employee or claimant for a condition that is accepted by the Program as compensable under the Act shall not attempt to collect payment for such medical services, appliances, or supplies from the employee or claimant.

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12229 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8771 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017); as amended by Final Rulemaking published at 66 DCR 4246 (April 5, 2019). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 125

7 DCMR § 126 MEDICAL BILLS

126.1

(a) Medical services, appliances, or supplies shall be billed and reimbursed at a rate that does not exceed the rate set forth on the medical fee schedule adopted by the Program.

(b) For medical services, appliances, or supplies included on a Medicare fee schedule, the rate set forth on the Program’s fee schedule shall be one hundred-thirteen percent (113%) of Medicare’s reimbursement rates. For purposes of this chapter, medical supplies include medication and prescription drugs.

(c) For medical services, appliances, or supplies not included on a Medicare fee schedule, the billing and reimbursement rate shall be the rate set forth for the services, appliances, or supplies on the Program’s fee schedule published on the Healthcare Provider Information Page of the Office of Risk Management website.

(d) If a medical service, appliance, or supply is not included on a Medicare fee schedule or the Program’s published fee schedule, the billing and reimbursement rates shall be limited to the reasonable and customary charges prevailing in the local medical community, as determined by the Program.

(e) Notwithstanding the foregoing, dispensing fees for prescription drugs shall not exceed five dollars ($5.00) per prescription filled.

126.2 If a healthcare provider intends to bill for medical services, appliances, or supplies, where prior authorization is required, that provider must request or verify the existence of such prior authorization from the Program before providing services, appliances, or supplies. All medical bills submitted to the Program lacking required prior authorization will be automatically denied.

126.3 Unless otherwise authorized by the Program, all bills for medical services, appliances, or supplies rendered under the Act must be submitted on a CMS1500, Health Insurance Claim Form and shall:

Include the code, as published by the American Medical Association (AMA) in the most current edition of the Current Procedural Terminology (CPT codes) for each care, supply, and service rendered and the codes established by the most recent edition of the International Classification of Diseases (ICD), as published by the U.S. Department of Health and Human Services, for diagnosing the claimant’s condition. If there is no standard CPT code for a care, supply, or service rendered, the health care provider shall refer to the Program’s fee schedule for the procedure code prescribed by the Program;

Include the “From” and “Through” dates with the appropriate units for each CPT code billed, when billing for care, supplies, or services over a period of time;

Include the name, address, telephone number, signature, and date of signature of the healthcare provider who rendered care, supplies, or services;

Be generated and submitted by the healthcare provider; and

Be supported by medical evidence documented on Form 3, 3S, 3RC, or other Program approved forms, as provided in § 125 of this chapter.

126.4 The Program may withhold payment for an authorized service, appliance, or supply until a bill for such service, appliance, or supply is submitted in accordance with § 126.3 of this chapter.

126.5 A medical report or medical evidence that is not on a Program form submitted in support of a bill shall be typewritten on the healthcare provider’s letterhead and signed and dated by the healthcare provider and include information required under § 125 of this chapter or as requested by the Program.

126.6 Unless otherwise authorized by the Program, all bills shall be submitted by first-class U.S. mail or electronically to the email address or fax number designated on the Healthcare Provider Information Page of the Office of Risk Management website.

126.7 No bill will be paid for expenses incurred if the bill is received more than one (1) year after the later of:

The end of the calendar year in which the expense was incurred, or the medical service, appliance, or supply was provided; or

The end of the calendar year in which the claim was first accepted as compensable by the Program.

126.8 Within thirty (30) days after receipt of a bill for medical services, appliances, or supplies submitted pursuant to the requirements of this section, the Program shall provide the claimant and healthcare provider with written notice approving, adjusting, denying, or disputing the bill.

126.9 If the Program fails to respond to a bill from a healthcare provider in accordance with this section and Section 2303(f) of the Act (D.C. Official Code § 1-623.03(f)), the Program shall be deemed to have authorized payment of the bill, provided that the medical service, appliance, or supply is:

For a condition that has been accepted as compensable by the Program; and

Prior authorization requirements are met.

126.10 If the Program adjusts, denies, or disputes a bill, the Program shall issue a written Explanation of Review to the claimant and healthcare provider.

126.11 The Explanation of Review shall inform the recipients of the recipients’ right to request a hearing before the Chief Risk Officer to dispute the Program’s decision, unless the Program has:

Initiated utilization review; or

Requested a hearing on the matter before the Chief Risk Officer.

126.12 A request for a hearing before the Chief Risk Officer to dispute the Program’s decision regarding the bill pursuant to Section 2323(a-2)(4) of the Act (D.C. Official Code § 1-623.23(a-2)(4)) shall be submitted by filing Form 9H with the Office of Risk Management no later than six (6) months of the later of:

(a) The date of the bill;

(b) The date of initial payment of the bill; or

The date of the initial Explanation of Review.

126.13 Prior to requesting a hearing before the Chief Risk Officer pursuant to § 126.12 of this chapter, a healthcare provider, but not a claimant, may seek reconsideration of the Program’s adjustment, denial, or dispute of a bill as follows:

(a) For an Explanation of Review issued by the Program, complete and electronically submit Form 9R by email or fax to the email address or fax number designated on the Healthcare Provider Information Page of the Office of Risk Management website.

(b) For an Explanation of Review prepared by a bill review vendor and issued by the Program, resubmit the bill directly to the vendor or contact the vendor directly to discuss the bill.

126.14 A request for reconsideration does not toll the time to request a hearing as set forth in § 126.12 of this chapter.

126.15 Nothing in this section shall be construed to allow for payment of any medical service, appliance, or supply provided for a condition that is not accepted by the Program as being compensable under the Act.

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12229 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8771 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017); as amended by Final Rulemaking published at 66 DCR 4246 (April 5, 2019). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 126

7 DCMR § 127 UTILIZATION REVIEW

127.1 Any medical care or service furnished or scheduled to be furnished under the Act shall be subject to utilization review, regardless of whether prior authorization was required for the medical care or service. The utilization review may be performed before, during, or after the medical care or service is provided. Medical care under this section includes medical appliances and supplies.

127.2 A utilization review organization or individual used pursuant to the Act shall be certified by the Utilization Review Accreditation Commission.

127.3 The claimant, the Program, or the Chief Risk Officer’s hearing representative may initiate utilization review if it appears that the necessity, character, or sufficiency of medical care or services furnished or scheduled to be furnished is improper or needs to be clarified.

127.4 Utilization review shall be initiated only for medical care or services provided, or scheduled to be provided, for treatment of a condition that the Program has accepted as being compensable under the Act.

127.5

(a) If a utilization review is initiated under this section, the utilization review organization or individual shall make a decision no later than sixty (60) days after the utilization review is requested.

(b) If the utilization review is not completed within one hundred twenty (120) days of the request, the medical care or service under review shall be deemed approved if:

(1) The medical care or service was provided, or is scheduled to be provided to treat a condition that the Program has accepted as being compensable under the Act; and

(2) The medical care or service, is provided, or scheduled to be provided, by a member of the Program’s Panel of Healthcare Providers.

127.6 The utilization review report shall specify the medical records considered and shall set forth rational medical evidence and standards to support each finding. The report shall be authenticated or attested to by the utilization review individual or by an officer of the utilization review organization. The report shall be provided to the claimant, qualified health professional, and the Program.

127.7 A utilization review report which conforms to the provisions of this section shall be admissible in all proceedings with respect to any claim to determine whether a medical care or service was, is, or may be necessary and appropriate to treat a condition that has been accepted by the Program as being compensable under the Act.

127.8 A decision issued by the utilization review organization or individual under this section shall inform the claimant and qualified health professional of their right to reconsideration before the utilization review organization.

127.9 If the qualified health professional or claimant disagrees with the opinion of the utilization review organization or individual, the qualified health professional or claimant may submit a written request to the utilization review organization or individual for reconsideration of the opinion.

127.10 The request for reconsideration shall:

(a) Be in writing;

(b) Contain reasonable medical justification for the reconsideration;

(c) Provide additional information, if the medical care or service was denied because insufficient information was initially provided to the utilization review organization or individual; and

(d) Be made within sixty (60) calendar days after the claimant’s receipt of the utilization review report if the claimant is requesting reconsideration, or within sixty (60) calendar days after the qualified health professional’s receipt of the utilization review report, if the qualified health professional is requesting reconsideration.

127.11 A decision issued on reconsideration pursuant to Section 2323(a-2)(3) of the Act (D.C. Official Code § 1-623.23(a-2)(3)) is final and not subject to further review on the issue of necessity, character, or sufficiency of the medical care or service provided, or scheduled to be provided.

127.12 Where utilization review has not been initiated, a dispute regarding the issue of necessity, character, or sufficiency of the medical care or service provided, or scheduled to be provided may, pursuant to Section 2323(a-2)(4) of the Act (D.C. Official Code § 1-623.23(a-2)(4)), be resolved upon an application for a hearing before the Chief Risk Officer pursuant to § 157 of this chapter within thirty (30) calendar days after the date of the Program’s decision denying authorization for medical care or services.

127.13 A request for a hearing under § 127.12 of this chapter may be made by the Program, qualified health professional, or claimant.

127.14 As provided in Section 2323(a-2)(4) of the Act (D.C. Official Code § 1-623.23(a-2)(4)), the Superior Court of the District of Columbia may review the Chief Risk Officer’s decision. The decision may be affirmed, modified, revised, or remanded at the discretion of the court. The decision shall be affirmed if supported by substantial competent evidence of the record, pursuant to the District of Columbia Superior Court Rules of Civil Procedure Agency Review.

127.15 The District of Columbia government shall pay the cost of a utilization review if the claimant seeks the review and is the prevailing party. The claimant shall pay the cost of a utilization review if the claimant seeks the utilization review and the Program is the prevailing party. Utilization review services, if paid by the Program, may be recovered under Section 2329 of the Act (D.C. Official Code § 1-623.29).

127.16 The Program may deny a request by a qualified health professional for authorization for medical care or services furnished, or scheduled to be furnished, where insufficient information has been provided to initiate utilization review.

127.17 If the Program makes payment for medical care or services that are later denied pursuant to utilization review, the Program shall recoup such payment as an overpayment in accordance with Section 2329 of the Act (D.C. Official Code § 1-623.29).

127.18 The Program may enter into a working agreement with a utilization review organization or individual to carry out the utilization reviews authorized under this section. Each such agreement shall set forth terms and conditions to ensure appropriate review, including fee, and payment guidelines.

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12229 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8771 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017); as amended by Final Rulemaking published at 66 DCR 4246 (April 5, 2019). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 127

7 DCMR § 128 BENEFITS DEDUCTION

128.1 An employee who receives the following benefits on the date that he or she is injured shall continue to receive the following benefits if his or her claim for indemnity compensation is accepted, and the premiums, if any, shall be deducted from the claimant’s indemnity compensation payments:

(a) Health care insurance;

(b) Life insurance;

(d) Vision insurance.

128.2 Employees within the meaning of Section 2301(1)(B) and (C) of the Act are not eligible for benefits deduction.

128.3 Benefits recited above shall cease upon termination of employment by the Employing Agency. Thereafter, employees hired after September 30, 1987 shall be entitled to continued health benefits coverage pursuant to 6-B DCMR § 2130. Employees hired prior to October 1, 1987 shall be entitled to continued health benefits coverage pursuant to 5 USC § 8905a.

128.4 The premiums, if any, shall be paid by the last Employing Agency and shall be the same as any premiums paid for the same benefits by the District for active employees. The premiums paid by claimants under this section shall be the same as any premiums paid for the same benefits by active employees.

128.5 A claimant who wishes to opt out of any of the benefits listed in § 128.1 after he or she begins receiving indemnity compensation may do so by following the policies, procedures, and regulations of the District of Columbia Department of Human Resources.

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12229 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8771 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 128

7 DCMR § 129 COMPUTATION OF WAGE INDEMNITY; TOTAL DISABILITY

129.1 If the disability is total, subject to the limitations in Section 2306a, the employee’s monthly monetary compensation shall be sixty-six and two-thirds percent (66 2/3%) of the employee’s monthly pay.

129.2 The employee’s monthly pay shall be calculated based on the employee’s Average Annual Earning (AAE) as follows:

(a) One-twelfth (1/12) of the employee’s AAE at the time of injury (or recurrence, if the employee returned to regular, full-time employment for six months or more prior to recurrence).

129.3 Average Annual Earnings (AAE) are determined based on the nature and duration of the employment in accordance with the Act as follows:

(a) Section 2314(d)(1) is used if the employee worked substantially the whole year prior to the injury.

(b) Section 2314(d)(2) is used if the employee did not work substantially the whole year prior to the injury, but would have been employed for substantially a whole year had it not been for the injury.

(c) Section 2314(d)(3) is used if the employee was not employed for substantially the whole year and the employment would not have lasted for substantially the whole of the year.

(d) Section 2314(d)(4) is used when an employee works without pay or nominal pay.

129.4 When determining a pay rate, the criteria listed at § 129.3 should be considered in the order listed, so that only if the method prescribed in Section 2314(d)(1) of the Act cannot be reasonably and fairly applied, should consideration be given to the method stated in Section 2314(d)(2), and so forth.

129.5 Substantially the Whole-Year Employment – Section 2314(d)(1) of the Act – If the claimant worked substantially the whole year prior to the injury and:

(a) Has a fixed Annual Rate of Pay, then the claimant’s Average Annual Earnings (AAE) is their Annual Rate of Pay (ARP).

(b) Does not have a fixed ARP, then the claimant’s AAE, shall be calculated as follows:

(1) Daily Wage multiplied by three hundred (300), if the employee regularly worked six (6) days per work week;

(2) Daily Wage multiplied by two hundred-eighty (280), if the employee regularly worked five and one-half (5½) days per work week;

(3) Daily Wage multiplied by two hundred-sixty (260), if the employee regularly worked five (5) days per work week;

(4) Daily Wage multiplied by two hundred (200), if the employee regularly worked four (4) days per work week; or

(5) Daily Wage multiplied by one hundred-fifty (150), if the employee regularly worked three (3) or fewer days per work week.

129.6 “Substantially the whole year” under Section 2314 of the Act means the employee worked in the position in which he was employed at the time of the injury for at least eleven (11) out of the immediate twelve (12) months prior to the injury, unless the employee worked in one of the following positions:

(a) Career seasonal employment – This is an arrangement where the employee regularly works just part of a calendar year, usually for the same general period each year and at the same type of job. The employee must have a prior written agreement with the employer to continue seasonal employment from year to year to be considered a career seasonal employee. Such an employee is entitled to receive compensation on the same basis as an employee with the same grade and step who has worked the whole year. An employee should not be considered career seasonal without explicit written documentation by the agency of his or her status.

(b) School year employment – Employees whose employment is limited to school years (i.e., teachers, bus drivers) are not considered to fall under the provisions of career seasonal employment as set forth above, but they are considered whole-year employment by nature of the position. Although “substantially the whole year” is normally defined as at least eleven (11) months, in order to determine the average annual earnings for an employee whose employment by nature is governed by school years, consideration must be given to whether the claimant worked substantially the whole actual school year, i.e., eleven-twelfths (11/12) of the school year, and whether he or she would have been employed for substantially a whole school year had it not been for the injury.

129.7 Concurrent employment can be included in monthly pay determinations made under Sections 2314(d)(1) and (2) of the Act only to the extent that it establishes the ability to work full time, meaning forty (40) hours per week. When a claimant has been employed for forty (40) or more hours per week for substantially the whole year prior to injury, but not all of these hours are with the District government, he or she has demonstrated the ability to work full time and is entitled to compensation at the rate of a regular full-time employee in the same position as follows:

(a) Similar Employment – If a claimant’s concurrent employment was similar to his or her District employment, the Program shall combine the actual earnings from District employment with the actual earnings for the similar employment to obtain the average annual pay the employee earned. (The combination of District and non-District employment hours shall not exceed forty (40) hours per week of employment.) District employment hours shall take precedence in this calculation. This total would be divided by twelve (12) to obtain the monthly pay.

(b) Dissimilar Employment - If a claimant’s concurrent employment was dissimilar to his or her District employment and the claimant worked part-time for the District government, the Program shall treat the hours worked at the concurrent employment as a demonstrated ability to work more than part-time. The Program shall compute the claimant’s weekly hours worked by adding the total number of hours worked at the District and non-District employment. The total hours worked, not to exceed forty (40) hours per week, would be multiplied by the hourly rate of pay the claimant received for his or her District employment to compute the claimants weekly pay. The weekly pay would be multiplied by fifty-two (52) and divided by twelve (12) to obtain the monthly pay.

(c) For the purpose of concurrent employment, attending school and sporadic employment does not demonstrate the ability to work more than part time.

(d) Pay rates based on full-time 40-hour per week employment may not be expanded to include pay earned in any other concurrent employment, even if that employment is similar to the District duties. Pay rate based on full-time career seasonal or school year employment may not be expanded to include the pay earned "off season" or “off school year.”

129.8 Anticipated Whole-Year Employment – Section 2314(d)(2) of the Act – If the claimant did not work substantially the whole year, but the position was one which would have afforded employment for substantially a whole year, the claimant’s average annual earnings are determined as described at § 129.5 and § 129.7 shall also apply.

129.9 Irregular Employment – Section 2314(d)(3) of the Act – If the claimant did not work substantially the whole year and the position was not one which would have afforded employment for substantially the whole year (for example - intermittent, non-career seasonal, on-call, and discontinuous work), the claimant’s AAE are determined as follows:

(a) If the claimant is entitled to compensation for wage loss and further investigation is required to determine the claimant's AAE, the Program shall use the "150 Formula" as a provisional pay rate to calculate compensation. Compensation under the “150 Formula” pay rate shall remain in effect until the investigation is completed.

(b) In order to compute the claimant’s AAE for the immediate twelve (12) months preceding the injury, the Program shall add the claimant’s total earnings per position(s) worked within that period. To do so, the Program shall pro-rate the claimant’s earnings by the period worked for each position employed, in the following order:

(1) If the claimant was employed by the District in more than one (1) position within the immediate twelve (12) months preceding the injury:

(A) Calculate the claimant’s total base earnings and number of weeks worked for the entire period that the claimant was employed with the District government at his or her position at the time of injury; and

(B) Calculate the claimant’s total base earnings at any other District employment, not to exceed the immediate twelve (12) months prior to the date of injury. This information should be obtained from the Employing Agency or other District agency, where the claimant worked. This information shall be obtained through PeopleSoft.

(2) If the claimant was collectively employed with the District government for less than twelve (12) months, immediately preceding the injury, include one (1) or more of the following categories, if applicable, to complete the calculation such that the total wage accounts for one (1) full year of employment prior to the injury:

(A) Similarly-employed worker – The Program should determine the earnings of another District employee working the greatest number of hours during the year prior to the injury in the same or most similar class, in the same agency.

(i) "Same or most similar class" refers both to the kind of work performed and the kind of appointment held. A similarly situated employee would most likely hold the same type of appointment and the same pay grade and step as the claimant. For example, a seasonal life guard should not be compared to a career full-time life guard, as these are different types of appointments. If the claimant's job was temporary and seasonal in nature, it should be compared to that of another temporary and seasonal employee.

(ii) If the "same or most similar class" contains more than one employee, the employing agency should be asked to state the earnings of the employee who worked the greatest number of hours and therefore had the highest earnings. If the claimant's term of employment is less than a year, the earnings of the similar employee should be pro-rated to match the same term of employment as the claimant's.

(iii) The selected employee's grade and step should also be provided for reference so that it will be on file for wage-earning capacity purposes.

(iv) If there are no other "same or most similar class" employees at the employing agency, the Program need not consider the “Similarly-employed worker” factor.

(B) Claimant's prior-year non-District employment – Only earnings in employment which is the same as, or similar to, the work the employee was doing when injured may be considered.

(i) To make this determination, the Program shall explore the claimant's full employment history for the twelve (12) months preceding the injury to determine the nature of the prior-year non-District employment.

(ii) The annual earnings should be pro-rated such that it reflects the period of time worked, not to exceed twelve (12) months preceding the date of injury.

(iii) Any other relevant factors which may pertain to the employee's AAE in the employment in which he or she was working at the time of the injury may be considered.

(C) The pay rate determined by the "150 Formula" – The “150 Formula,” provided at Section 2314(d)(3) of the Act provides that a claimant’s AAE may not be less than one hundred-fifty (150) times the average daily wage that the employee earned in the employment during the year just before the injury.

129.10 The “rate of pay” for District employment under Section 2314 of the Act shall be determined by referring to the employee’s official personnel folder.

129.11 Daily wage under Section 2314 of the Act shall be computed by dividing the employee’s total earnings for the immediate twelve (12) months prior to the injury by the total number of days worked in that period.

129.12 To convert the monthly monetary compensation into bi-weekly installments, the monthly compensation rate shall be multiplied by twelve (12) and divided by twenty-six (26).

129.13 To calculate monetary compensation due between pay periods, the total number of hours that the employee was absent due to the work related injury that was not otherwise covered by COP shall be divided by the total number of hours in which the employee was scheduled to work, then multiplied by the bi-weekly compensation rate as follows:

Bi-weekly Compensation Rate

(Total nonCOP work hours absent during pay period)

(Total hours scheduled to work during pay period)

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12229 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8771 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 129

7 DCMR § 130 COMPUTATION OF WAGE INDEMNITY; PARTIAL DISABILITY

130.1 A disability is partial, when a qualified health professional determines that a claimant can perform work with restrictions, provided that:

The restrictions arise out of a work-related injury;

A claim has been filed for the work-related injury and accepted by the Program; and

The qualified health professional has examined the employee and reviewed his or her medical records.

130.2 If the disability is partial, subject to the limitations in Section 2306a of the Act (D.C. Official Code § 1-623.06a), the claimant’s monthly monetary compensation shall be sixty-six and two-thirds percent (66 2/3%) (or seventy-five percent (75%), if an augmented rate of wage-loss compensation is permitted) of the difference between the claimant’s monthly pay, as defined at Section 2301(4) of the Act (D.C. Official Code § 1-623.01(4)), and the claimant’s monthly wage-earning capacity after the beginning of the partial disability.

130.3

(a) Determination based on actual wages. If the claimant has current or a history of actual earnings which fairly and reasonably represent his or her wage-earning capacity, those earnings shall form the basis for payment of wage-loss compensation for partial disability.

(b) Determination based on labor market survey. If the claimant’s actual earnings do not fairly and reasonably represent his or her wage-earning capacity, or if the claimant has no actual earnings, the Program shall perform a labor market survey, using the factors set forth in § 130.5 of this chapter, to select a position that represents his or her wage-earning capacity.

(c) Determination pending labor market survey. If a claimant is released to work in any capacity, the Program may calculate earnings at the highest minimum wage rate in effect within a fifty (50) mile radius of the claimant’s residence at the time, taking into account the total hours the claimant is medically authorized to work, to construct a temporary wage-earning capacity until a labor market survey is completed.

130.4 In establishing a wage-earning capacity, the Program is not obligated to secure employment for the claimant in the position selected for establishing a wage-earning capacity.

130.5 The phrase “labor market survey” means a determination of the types of positions that a claimant is capable of doing, based on the following factors, as set forth in Section 2315 of the Act (D.C. Official Code § 1-623.15):

(a) The nature of his or her injury;

(b) The degree of physical impairment;

(d) His or her age;

(e) His or her qualifications for other employment;

(f) The availability of suitable employment; and

(g) Other factors or circumstances which may affect his or her wage-earning capacity as a worker with a disability.

130.6 When conducting a labor market survey, the Program shall identify at least three (3) suitable positions that are available at the time. The claimant’s wage-earning capacity shall be calculated based on the annual earnings of the lowest-paid position identified, taking into account the total hours the claimant is medically authorized to work, unless it is reasonable to select a higher-paid position based on the factors set forth in § 130.5 of this chapter.

130.7 The Program shall determine whether the positions selected are reasonably available and vocationally suitable. The fact that a claimant is not successful in securing employment does not establish that the selected positions are not vocationally suitable.

130.8

(a) When calculating wage-earning capacity pursuant to Section 2315 of the Act (D.C. Official Code § 1-623.15) and this section, it is necessary to establish that the selected positions are medically suitable given the claimant’s injury-related and pre-existing impairments.

(b) A wage-earning capacity determination must be based on a current or contemporaneous medical evaluation.

(c) Medical conditions not related to the work-related injury or condition that has been accepted as compensable by the Program will not be considered, unless they pre-existed the accepted injury or condition.

(d) Considerations shall be based on well-defined work restrictions in the medical or claim record.

130.9 The positions selected for determining the wage-earning capacity must be reasonably available in the general labor market within fifty (50) miles of the claimant’s residence.

130.10 [Repealed].

130.11 To convert the monthly partial disability monetary compensation into bi-weekly installments, the monthly compensation rate shall be multiplied by twelve (12) and divided by twenty-six (26).

130.12 Cost-of-living adjustments shall be applied to the partial disability compensation rate in accordance with § 139.2 of this chapter.

130.13 The Program may apply a wage-earning determination retroactively if the evidence shows that partial, rather than total, disability existed. A claimant’s receipt of actual earnings shall be deemed to support the retroactive application of a wage-earning capacity determination to at least the period when wages were first earned. Following the Program’s initial determination, a retroactive determination based solely on a labor market survey may not encompass any period during which wage-loss benefits were actually paid.

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12229 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8771 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017); as amended by Final Rulemaking published at 66 DCR 4246 (April 5, 2019); as amended by Final Rulemaking published at 67 DCR 7481 (June 12, 2020). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 130

7 DCMR § 131 AUGMENTED PAY

131.1 Pursuant to Section 2310 of the Act, amended September 24, 2010, only employees hired before January 1, 1980 are entitled to an augmented benefits rate for dependents.

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12229 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8771 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 131

7 DCMR § 132 Computation of Wage Indemnity; Statutory Maximum and Minimum

132.1 The statutory maximum and minimum for wage indemnity shall be calculated in accordance to Section 2312 of the Act. The calculation shall be determined by following the federal general pay scale when using Section 5332 of Title 5 of the United States Code, and by following the non-union, District career service (general) pay scale when using the District pay scale.

History

SOURCE: Final Rulemaking published at 59 DCR 8766, 8804 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 132

7 DCMR § 133 OVERPAYMENT

133.1 If the Program makes an overpayment to a claimant as a result of an error of fact or law, the Program shall recoup the overpayment from the claimant or, if a claimant is receiving compensation from the Program, adjust the claimant’s compensation payments to correct and recoup the overpayment, as provided in this section.

133.2 In order to adjust or recoup an overpayment, the Program must make a preliminary finding as to whether the claimant was “at fault,” as defined under Section 2329(b)(2)(A)(i) of the Act, in the creation of the overpayment.

133.3 If the Program makes a preliminary finding that the claimant was at fault in the creation of the overpayment, the Program shall issue a notice of adjustment or recoupment forthwith.

133.4 If the Program preliminarily finds that the individual was not at fault in the creation of the overpayment, a notice of adjustment or recoupment shall only issue where the Program has determined that the adjustment or recoupment would not defeat the purpose of the Act or be against equity and good conscience, as provided under Section 2329(b) of the Act.

133.5 A notice of adjustment or recoupment shall advise the claimant of the following:

(a) That the overpayment exists and the amount of the overpayment;

(b) That a preliminary finding shows that the claimant either was or was not at fault in the creation of the overpayment;

(d) That the claimant has the right to request a waiver and present evidence within thirty (30) days of the notice to challenge

(1) The fact and amount of the overpayment; or

(2) The Program’s preliminary finding of claimant’s fault in the creation of the overpayment; and

(e) That the claimant’s failure to present evidence within the thirty (30) days provided shall result in a final determination supporting recoupment of the overpayment, unless the deadline to present evidence is extended pursuant to § 133.9 of this chapter.

133.6 Any request for a waiver or challenge to a preliminary finding of overpayment must be submitted to the Program within thirty (30) days of the date of the overpayment notice issued by the Program.

133.7 Failure to submit evidence to challenge the overpayment or in support of a waiver pursuant to Section 2329(b-1)(2) of the Act within thirty (30) days of the date of the overpayment notice shall result in the issuance of a final determination without participation of the claimant.

133.8 Final determinations on overpayment shall be determined based Section 2329(b-1)(2) of the Act.

133.9 If a claimant fails to request a waiver or challenge a preliminary finding of overpayment within thirty (30) days of the date of the overpayment notice and

(a) A final determination has not issued pursuant to § 133.6, the claimant may submit the request directly to the Program for consideration pursuant to Section 2329(b-1)(2) of the Act.

(b) A final determination has issued pursuant to § 133.6, the claimant may appeal the Program’s final determination to the Chief Risk Officer pursuant to § 156.1 of this chapter. The Chief Risk Officer shall grant the appeal and remand the belated challenge or waiver of overpayment to the Program for consideration pursuant to Section 2329(b-1)(2) of the Act, only where the claimant submits evidence that establishes the claimant’s inability to timely act resulted from:

(1) Good cause;

(2) Mental or physical incapacity; or

(3) Lack of timely receipt of the notice of adjustment or recoupment.

133.10 The Program may treat any overpayment as an employee debt to the District pursuant to Section 2902 and 2904 of the Act. Pursuant to Section 2901(g) of the Act, Sections 2901(a) through (f) of the Act shall not apply to limit the Program’s ability to collect overpayments; and

133.11 If the Program has reason to believe that the overpayment may have occurred as a result of fraud or other criminal activity on the part of the claimant, the Program shall refer the matter to the Office of the Inspector General, the United States Attorney’s Office, or another appropriate law enforcement entity.

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12229 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8771 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 133

7 DCMR § 134 ELECTION OF COMPENSATION

134.1 A claimant receiving indemnity compensation under this chapter shall not:

(a) Receive other salary, pay, or remuneration of any type from the District of Columbia, including retirement pay for employees hired by the District of Columbia on or after October 1, 1987. The prohibition in this paragraph does not apply to service actually performed in a part-time or modified duty capacity pursuant to § 137 of this chapter; or

(b) Recover damages from the District government because of the claimant’s compensable injury or death, as a result of a judicial proceeding in a civil action or in admiralty, or by an administrative or judicial proceeding under another workers’ compensation statute or federal tort liability statute.

134.2 The phrase “salary, pay, or remuneration” as used in this section includes:

(a) Severance pay, separation pay and “buy-out” payments to a claimant from the claimant’s Employment Agency; and

(b) Federal retirement benefits accrued as a result of District employment.

134.3 A claimant may not receive indemnity compensation concurrently with retirement pay or PSWCP death benefits concurrently with survivor annuity from the District of Columbia. The claimant must elect the benefit that he or she wishes to receive, provided that such election is permitted per the terms of the applicable retirement pay or survivor annuity. Once made, if permitted, the election is only revocable prospectively. A claimant may, however, receive compensation schedule payments pursuant to Section 2307 of the Act, at the same time that he or she receives District government retirement pay.

134.4 A claimant may not receive indemnity compensation concurrently with federal retirement pay. Once a claimant applies and receives federal retirement pay, the claimant is no longer eligible for temporary indemnity compensation. A claimant may, however, receive compensation schedule payments pursuant to Section 2307 of the Act, at the same time that he or she receives federal civil service retirement pay.

134.5 A claimant may only receive compensation concurrently with military retired pay, retirement pay, retainer pay or equivalent pay for service in the United States Armed Forces or other uniformed services.

134.6 When a claimant begins receiving indemnity compensation under this section, it shall be the claimant’s obligation to inform the Program if the claimant receives prohibited compensation under this subsection for as long as the claimant receives indemnity compensation from the Program.

134.7 Whenever the Program determines that a claimant is receiving or may be entitled to receive the salary, pay, remuneration, or benefits listed in this section, it may forward to the claimant a form for the election of which compensation the employee or claimant wishes to receive. If the claimant has already received salary, pay, remuneration, or benefits in violation of this section, the Program shall initiate overpayment proceedings.

134.8 A claimant shall not be eligible for indemnity compensation, if he or she was employed by the District of Columbia or the federal government before October 1, 1987, and is receiving disability benefits from the federal government for the same injury.

134.9 Remuneration, such as severance pay, received pursuant to § 134.1(a) of this chapter, shall be off-set against:

(a) Any compensation benefits due or paid to claimant; or

(b) Lump sum payment a claimant received in commutation installment payments.

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12229 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8771 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 134

7 DCMR § 135 ELIGIBILITY

135.1 [REPEALED]

135.2 The Program shall continue to investigate the claim throughout the life of the claim to confirm that a claimant or employee is still entitled to benefits under the Act.

135.3 Claimants and employees are required to cooperate with all aspects of the Program’s investigation, including participating in “alive and well checks,” attending physical examinations, and providing documentation of all medical services, earnings information, current medical releases, and dependent and marital status.

135.4 The Program may conduct any investigation that is necessary to monitor medical agreements, services and costs incurred.

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12229 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8771 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017); as amended by Final Rulemaking published at 66 DCR 4246 (April 5, 2019). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 135

7 DCMR § 136 ADDITIONAL MEDICAL EXAMINATIONS

136.1 The Program may require a claimant to participate in an Additional Medical Examination (AME) with a physician selected by the Program.

136.2 The Program shall maintain a list of AME physicians. AME physicians shall have expertise and board certification in various specialties that are consistent with employees’ most common injuries, as determined by the Program. AME physicians shall be selected on the basis of several factors, including:

Experience in their field;

(b) Experience with and understanding of workers’ compensation procedures and guidelines;

Reputation for honesty and integrity;

Positive records with licensing boards; and

(e) Availability to provide timely appointments, reports, depositions, and court appearances.

136.3 AME physicians may be added to and removed from the Program’s list of AME physicians at the discretion of the Program.

136.4 An AME shall consist of a case file review, and/or an in-person assessment or examination, by a qualified health professional other than the treating physician.

136.5 The Program may schedule an AME when:

(a) The diagnosis does not match the claim;

(b) The duration of employee’s inability to work is longer than generally accepted guidelines allow for that particular injury, including the Official Disability Guidelines published by the Work Loss Data Institute, or similar guidelines;

(d) There is a question regarding the underlying accuracy or consistency of the opinion of the treating physician; or

(e) There is any reason to verify that the treatment or care provided is appropriate, adequate, and solely for the injury incurred in the performance of the employee’s duty.

136.6 The Program shall inform a claimant in writing of the requirement that he or she attend an AME appointment, and that failure to attend the appointment, failure to bring medical records under the employee’s possession and control, or any other obstruction of the examination, will result in a suspension of the claimant’s benefits.

136.7 If the claimant does not attend the AME appointment, fails to bring medical records under the claimant’s possession and control, or otherwise refuses or obstructs the examination, the Program may suspend the claimant’s benefits.

136.8 Claimant may have a physician designated and paid by the claimant participate in the examination pursuant to Section 2323 of the Act.

136.9 Obstruction under this section means impeding or any attempt to hinder the physician’s medical examination of the claimant, including not appearing for a medical examination, refusing to answer the physician’s questions, refusing to cooperate with the examining physician’s request, and providing the physician with false statements.

136.10 Indemnity benefits suspended under this provision shall be:

(a) Forfeited during the suspension period; and

(b) Counted towards the 500-week limitation provided in Section 2306a of the Act.

136.11 If the claimant attends a newly scheduled appointment, provides requested records, or otherwise cooperates with the examination as directed by the Program, the claimant’s benefits shall be reinstated as of the date of compliance. The date of compliance is the date the claimant attends the newly scheduled appointment, the date the Program receives requested records, or the date the claimant otherwise cooperates with the examination as directed by the Program.

136.12 An AME report shall be conclusive and responsive to the requests from the Program as part of a complete professional evaluation and shall comply with the requirements of § 137.3.

136.13 Claimant may request for reimbursement of reasonable and necessary lost wages incident to AMEs by submitting a written request to the Program with supporting documentation. Requests for such reimbursement shall be made the earlier of three (3) days after receiving the AME notification or seven (7) days after the AME. “Reasonable and necessary,” means:

(a) The Additional Medical Examination cannot be scheduled around claimant’s work schedule; and

(b) The claimant does not have sufficient sick leave to cover for the loss of time.

136.14 The Program may enter into a working agreement to provide AME services under this section. Each such agreement shall set forth terms and conditions to ensure appropriate evaluations, including fee and payment guidelines.

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12229 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8771 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017); as amended by Final Rulemaking published at 66 DCR 4246 (April 5, 2019). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 136

7 DCMR § 137 REPORT OF MEDICAL EVIDENCE

137.1 The claimant is responsible for providing sufficient medical evidence to justify the continuation of payment of any compensation sought.

137.2 To support payment of continuing compensation where an employee has been found entitled to temporary indemnity benefits, the claimant shall:

(a) Continuously supplement medical evidence to substantiate the nature and extent of ongoing disability; and

(b) Annually submit Form 3RC – Annual Medical Recertification, from the date the compensation commenced and at the Program’s requests. The medical evidence within Form 3RC must contain a physician's rationalized opinion as to the nature and extent of disability and whether the specific period of alleged disability is causally related to the employee's accepted injury and condition or disability.

137.3 The physician's rationalized opinion must be based on the facts of the case and the complete medical background of the employee, must be one of reasonable medical certainty, and must include objective findings in support of its conclusions. Subjective complaints of pain are not sufficient, in and of themselves, to support payment of continuing compensation. Likewise, medical limitations based solely on the fear of a possible future injury are also not sufficient to support payment of continuing compensation.

137.4 The Program may require any kind of non-invasive testing to determine the employee's functional capacity. Failure to undergo such testing will result in a suspension of benefits. In addition, the Program may direct the employee to undergo an Additional Medical Examination in any case it deems appropriate.

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12229 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8771 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 137

7 DCMR § 138 REPORT OF EARNINGS

138.1 If a claimant is subject to forfeiture of his or her right to workers’ compensation pursuant to Section 2306b(b) of the Act (D.C. Official Code §1-623.06b(b)), such forfeiture shall commence on the earlier of:

(a) The thirty-first (31st) day after the date on which the report of earnings was requested; or

(b) The date the Program receives a report of earnings in which the claimant knowingly omitted or understated any part of his or her earnings.

138.2 Forfeiture under this section shall continue until a complete report is received by the Program.

138.3 A complete report of earnings shall include:

(a) An accurate statement of all earnings for the period requested;

(b) A signed and notarized affidavit on a form provided by the Program;

(d) A signed authorization authorizing the Program to obtain copies of tax documents.

138.4 After ninety (90) consecutive days of forfeiture as provided in §§ 138.1 and 138.2, claimant shall be terminated from the Program with at least thirty (30) day notice. The claimant may be reinstated at the discretion of the Program only where the claimant establishes that his or her failure to act was the result of good cause.

138.5 Claimant’s failure to timely file a report of earning may be excused, where good cause for the delay is found pursuant to §147.

138.6 For the purposes of Section 2306b(b) of the Act (D.C. Official Code § 1-623.06b(b)), the phrase, “period for which the report of earnings was required” means the earning(s) period identified in the Program’s request.

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12229 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8771 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017); as amended by Final Rulemaking published at 66 DCR 4246 (April 5, 2019); as amended by Final Rulemaking published at 67 DCR 7481 (June 12, 2020). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 138

7 DCMR § 139 COST OF LIVING ADJUSTMENTS

139.1 Cost of living adjustments shall be applied to compensation calculated pursuant to Section 2305 or 2306 of the Act.

139.2 The following cost-of-living adjustments apply in the calculation of compensation for disability or death:

Cost-of-living adjustments under 5 USC § 8146(a), FECA Bulletin No. 14-03:

EFFECTIVE DATE

RATE

EFFECTIVE DATE

RATE

10/01/66

12.5%

06/01/75

4.1%

01/01/68

3.7%

01/01/76

4.4%

12/01/68

4.0%

11/01/76

4.2%

09/01/69

4.4%

07/01/77

4.9%

06/01/70

4.4%

05/01/78

5.3%

03/01/71

4.0%

11/01/78

4.9%

05/01/72

3.9%

05/01/79

5.5%

06/01/73

4.8%

10/01/79

5.6%

01/01/74

5.2%

04/01/80

7.2%

07/01/74

5.3%

09/01/80

4.0%

11/01/74

6.3%

03/01/81

3.6%

Cost-of-living adjustments under § 2341 of the CMPA, effective March 3, 1979 (D.C. Law 2-139: as enacted; 25 DCR 5740, 5995 (December 29, 1978)).

EFFECTIVE DATE

RATE

EFFECTIVE DATE

RATE

11/01/81

5.1%

02/01/87

3.8%

12/01/82

4.0%

12/01/87

4.2%

10/01/83

3.7%

12/01/88

4.0%

09/01/84

4.6%

05/01/89

3.7%

09/01/85

4.1%

Cost-of-living adjustments under § 2341 of the CMPA; D.C. Official Code § 1-623.41 (1990 Supp.)):

EFFECTIVE DATE

RATE

EFFECTIVE DATE

RATE

10/03/93

5.0%

10/05/03

2.5%

04/02/95

-4.0%

07/10/05

3.5%

10/01/95

4.2%

10/02/05

4.0%

10/11/98

6.0%

10/01/06

3.0%

04/09/00

6.0%

10/14/07

3.25%

10/08/00

4.0%

(d) Cost-of-living adjustments under § 2341 of the CMPA; D.C. Official Code § 1-623.41 (2012 Repl. & 2018 Supp.):

After December 15, 2015, the percentage amount and effective date of an across-the-board salary increase reflected in any Career Service (General) District Government Salary Schedule that is approved in accordance with Sections 1105 and 1006 of the Act (D.C. Official Code §§ 1-611.05 and 1-611.06).

EFFECTIVE DATE

RATE

EFFECTIVE DATE

RATE

10/02/16

3.0%

10/01/17

3.0%

10/14/18

2.0%

139.3 Notwithstanding consideration of any permitted premium pay, the application of any cost of living adjustment shall not result in a monthly pay rate that exceeds sixty-six and two-thirds percent (66 2/3%) (or seventy-five percent (75%), if an augmented rate of indemnity compensation is permitted) of the current monthly pay rate (i.e., 1/12 of the current annual salary) for the grade and step of the claimant’s pre-injury position.

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12229 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8771 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017); as amended by Final Rulemaking published at 66 DCR 4246 (April 5, 2019). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 139

7 DCMR § 140 PERMANENT DISABILITY

140.1 A claimant may be eligible for permanent disability compensation pursuant to Section 2307 of the Act (D.C. Official Code § 1-623.07) upon reaching maximum medical improvement (MMI). A claimant may apply for such compensation after:

(a) Reaching MMI for a disability;

(b) Receiving four hundred-forty-eight (448) weeks of temporary total or partial disability wage-loss compensation, pursuant to Section 2306a of the Act (D.C. Official Code § 1-623.06a); or

140.2 A claim for permanent disability compensation by a claimant who is eligible to request an award pursuant to § 140.1(a) of this chapter shall be filed with the Program by submitting Form 12:

(a) Within one hundred and eighty (180) days after the termination of temporary disability wage-loss benefits by the Program where the claimant has reached MMI. A claimant who fails to file a claim for permanent disability within one hundred and eighty (180) days after termination of temporary disability wage-loss benefits shall not be entitled to permanent disability benefits thereafter, unless there is good cause found by the Program to excuse the delay; or

(b) At any time within one (1) year after a claimant is determined to have reached MMI where temporary disability wage-loss benefits ceased before MMI was reached, or where a claimant never received temporary wage-loss benefits.

140.3 A claim for permanent disability compensation by a claimant who is eligible to request an award pursuant to § 140.1(b) of this chapter shall be filed as a hearing for permanent disability with the Office of Administrative Hearings by submitting Form 9 within fifty-two (52) weeks after payment of the four hundred forty-eighth (448th) week of temporary total or partial disability wage-loss benefits. The Form 9 submission shall include the documents required under § 140.5. Any hearing request that is filed or refiled after the last fifty-two (52) weeks of five hundred (500) weeks of temporary wage-loss benefits shall be denied.

140.4 A claimant who is eligible to request permanent disability compensation pursuant to § 140.1(c) of this chapter may be awarded a schedule award for permanent disability in lieu of temporary disability wage-loss benefits. Such an award may be made upon filing a claim for temporary total disability wage-loss compensation, where the claimant has been determined to have a permanent impairment involving the loss of use of a member or function of the body, or disfigurement in accordance with the most recent edition of the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides), subject to limitations provided at Section 2321 of the Act (D.C. Official Code § 1-623.21).

140.5 To file a claim for permanent disability compensation pursuant to § 140.1(a) or (b) of this chapter, the claimant shall complete Form 12 and provide supporting information and documentation, including a permanent disability rating performed in accordance with the most recent edition of the AMA Guides from a qualified physician, if a permanent disability rating has already been provided to the claimant. If a permanent disability rating has not been provided, the claimant may request on Form 12 that the Program obtain a permanent disability rating for the claimant, and the Program will designate a qualified physician to evaluate the claimant and complete From 12 with supporting documentation accordingly.

140.6 If a claimant requests a schedule award pursuant to § 140.1(a) of this chapter, the Program shall:

Review the request;

Request additional information or action as necessary, including the scheduling of a physical examination(s), to evaluate the extent of permanency;

Apply the burden of proof standard provided at §119.4; and

(d) Issue a written decision within thirty (30) days of receipt of all required documents that shall:

Set forth the basis for accepting or denying the request; and

(2) Be accompanied by information about the claimant’s right to appeal the Program’s decision to the Chief Risk Officer, as provided in § 156 of this chapter.

140.7 (a) Hearings conducted in response to requests for permanent disability schedule awards filed pursuant to § 140.1(b) of this chapter shall:

(1) Be conducted pursuant to the provisions of Section 2324(b) of the Act (D.C. Official Code § 1-623.24(b)) and be subject to the requirements of this chapter;

(2) Allow for the scheduling of physical examination(s) of the claimant upon the filing of a hearing request to evaluate the extent of permanency of impairment and relationship to the accepted work injury;

(3) Be subject to OAH Rules, including those governing hearings of Public Sector Workers’ Compensation matters;

(4) Allow for post-hearing briefing to be filed within seven (7) business days after the hearing upon request of either party;

(5) Be subject to the burden of proof standard provided at § 119.4 of this chapter; and

(6) Result in the issuance of a written final decision within thirty (30) days of the hearing or later briefing date, where applicable.

(b) Awards for permanent disability compensation issued by the Program or OAH shall:

(1) Be based solely on a permanent disability rating performed in accordance with the most recent edition of the AMA Guides from a qualified physician;

(2) Be limited to a disability rating arising out of a condition that has been previously adjudicated as compensable and apportioned in accordance with Section 2307(d) of the Act;

(3) Exclude awards for attorney’s fees;

(4) Be computed by the Program in accordance with the schedule provided at Section 2307 of the Act (D.C. Official Code § 1-623.07), pursuant to § 129 of this Chapter, and not be subject to cost-of-living-adjustments. Adjustments to the Program’s computed rate shall be made pursuant to Section 2341, as they become available after payment on the schedule award begins; and

(5) Set forth the basis for accepting or denying the request, in whole or in part, and be accompanied by information about the parties’ right to appeal the decision, as provided in §§ 156 or 163 of this chapter, as applicable.

(c) Costs for physical examinations ordered by the tribunal or requested or obtained by the Program shall be paid by the Program, unless a permanent impairment rating performed in accordance with § 140.5 has already been provided by the Program or the order requires an examination to be conducted by a non-Panel physician;

140.8 Awards for permanent disability compensation shall be computed by:

(a) Calculating the monthly compensation less COLAs pursuant to § 129 of this Chapter;

(b) Converting the monthly compensation to weekly compensation by multiplying the monthly compensation rate by twelve (12) and dividing the product by fifty-two (52); and

(c) (1) In the event of a total loss of use of a member or function of the body, multiplying the weekly compensation rate computed by § 140.8(b) by the number of weeks indicated in the schedule for such member or function under Section 2307(c) of the Act; or

(2) In the event of a partial loss of use of a member or function of the body, adjusting the award schedule for partial disability by multiplying the total number of weeks available for the impaired member or function under Section 2307(c) of the Act by the percentage impairment rating provided by the physician, as awarded by the Program or OAH, and multiplying the adjusted award schedule for partial disability by the weekly compensation rate computed pursuant to § 140.8(b).

140.9 Any medical report or evidence submitted in support of a determination of eligibility for a schedule award under Section 2307 of the Act (D.C. Official Code § 1-623.07) shall be prepared by a physician with specific training and experience in the use of the most recent edition of the AMA Guides. The medical report must identify the clinical diagnosis, diagnosis code, current clinical symptoms, current examination findings, and diagnostic testing results, as well as how the medical records are interpreted with citation to the specific page number, paragraph, and table relied upon within the AMA Guides to establish how the physician arrived at the impairment rating.

140.10 A claimant who requests or receives a schedule award pursuant to Section 2307 of the Act (D.C. Official Code § 1-623.07) shall be ineligible for further wage-loss compensation for temporary disability arising out of the same injury for which the schedule award has been approved or paid, unless the request is made pursuant to Section 2306a of the Act. Requests for schedule awards made pursuant to Section 2306a of the Act shall not result in immediate termination of temporary wage-loss compensation until the expiration of five hundred (500) weeks of entitlement to temporary wage-loss compensation or the issuance of a final decision accepting a claimant’s request for permanent disability benefits, whichever is sooner.

140.11 A claimant may not receive wage-loss compensation for temporary disability and a schedule award for the same injury at the same time.

140.12 Permanent disability compensation shall be limited to those body parts and functions listed in the schedule set forth in Section 2307 of the Act (D.C. Official Code § 1-623.07).

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12229 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8771 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017); as amended by Final Rulemaking published at 66 DCR 4246 (April 5, 2019); as amended by Final Rulemaking published at 67 DCR 7481 (June 12, 2020). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 140

7 DCMR § 141 VOCATIONAL REHABILITATION

141.1 A claimant with a permanent or temporary disability that is compensable under the Act shall undergo vocational rehabilitation at the direction of the Program for a period not to exceed ninety (90) days.

141.2 After the ninety (90) day period has expired, the vocational rehabilitation services may be extended, at the discretion of the Program, for good cause shown, for incremental periods of ninety (90) days, not to exceed one (1) year from the initiation of the initial vocational rehabilitation plan. The term “good cause,” as used in this section, means that:

(a) There is evidence that the claimant’s medical condition is improving;

(b) The Program or case worker has identified viable job opportunities for the claimant; or

(c) There is evidence that continuation of participation in vocational rehabilitation is likely to result in the employment of the claimant.

141.3 While undergoing Vocational Rehabilitation at the direction of the Program, the claimant shall continue to receive monthly monetary compensation calculated pursuant to § 129 of this chapter, less the amount of any earnings received from remunerative employment other than employment undertaken pursuant to such rehabilitation.

141.4 The claimant shall furnish the Program with an affidavit of earnings pursuant to § 138 on a monthly basis to enable the Program to calculate the claimant’s outside earnings for an off-set against compensation received consistent with § 141.3 of this chapter.

141.5 If a claimant hired on or after January 1, 1980, without good cause fails to undergo vocational rehabilitation when so directed by the Program, the claimant’s right to compensation under this chapter shall be suspended until the non-compliance ceases. Failure to undergo vocational rehabilitation shall include failure to attend meetings with the vocational rehabilitation case worker, failure to apply for jobs that have been identified for the claimant, or failure to otherwise participate in good faith in the job application process.

141.6 Written notice prior to suspension need not be given when an employee’s benefits are suspended pursuant to this section.

141.7 The Program may enter into a working agreement with vocational counselors and organizations to provide vocational rehabilitation services to claimants. Each such agreement shall set forth terms and conditions necessary to ensure appropriate service, including fee and payment guidelines.

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12229 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8771 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017); as amended by Final Rulemaking published at 66 DCR 4246 (April 5, 2019). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 141

7 DCMR § 142 MODIFIED DUTY AND RETURN TO WORK

142.1 An employee with partial disabilities shall participate in modified work programs at the direction of the Program.

142.2 An employee who is medically released to work in full or modified duty shall notify the Program immediately within one (1) business day after receiving the medical release.

142.3 The Program shall attempt to place a medically released employee in a position with the employing agency or, when modified work assignments are not available with the employing agency, with another agency. Once assigned to a modified duty assignment, the employing agency shall be responsible for the salary of the employee.

142.4 While on modified duty assignment, the employee’s rate of pay shall be adjusted as follows:

(a) An employee with medical restrictions, who is able to perform the full scope of duties of his or her pre-injury position during the modified duty assignment period shall be entitled to receive the same rate of pay as received prior to the injury and wage-loss compensation shall cease.

(b) An employee who is not able to perform the full scope of duties of his or her pre-injury position shall receive a modified rate of pay closest to the rate of pay prior to the injury, without exceeding it. A modified duty compensation benefit shall be applied at the rate of sixty-six and two-thirds percent (66 2/3%) or, if the employee is eligible for augmented pay pursuant to Section 2310 of the Act (D.C. Official Code § 1-623.10), seventy-five percent (75%), of the difference between the pre-disability rate and the modified duty rate. Cost-of-living adjustments pursuant to Section 2341 of the Act (D.C. Official Code § 1-623.41) and § 139 of this chapter shall not apply to the modified duty rate of compensation.

142.5 The modified duty assignment shall be temporary. The modified duty assignment may have a minimum duration of two (2) basic non-overtime workdays, as that term is defined in Section 1201 of the Act (D.C. Official Code § 1-612.01), and a maximum duration of one hundred eighty (180) days (assigned in ninety (90)-day increments) in any twelve (12)-month period. For those employees whose basic non-overtime workday may exceed eight (8) hours, the basic non-overtime workday shall be the shift, or tour of duty, worked on a regularly recurring basis for the three (3) months immediately preceding the injury.

142.6 An employee with a medical work restriction who is offered a modified duty assignment and does not accept the modified duty assignment within three (3) days after the employee receives written notice of the assignment pursuant to §§ 142.7 and 142.8 of this chapter shall forfeit any further disability compensation benefits and such benefits shall be terminated by the Program. If compensation benefits were paid during the period of forfeiture, the Program shall recover the payments through a deduction from future compensation benefits owed to the employee or otherwise recovered under Section 2329 of the Act (D.C. Official Code § 1-623.29).

142.7 The Program shall provide the employee notice of an available modified duty assignment orally and in writing.

142.8 Notice of an available modified duty assignment shall include:

(a) The return to work date and time;

(b) The shift and schedule of the assignment; provided, that if the shift or schedule varies, the notice shall inform the employee of the shift and schedule for the remainder of the pay period;

(d) Notification that if the employee fails to report to work on the scheduled date and time without an excused absence, his or her failure to report may be designated as an absence without leave (AWOL), which may result in disciplinary action;

(e) Duties and responsibilities of the position, if the employee is directed to a position other than his or her pre-injury position;

(f) Rate of pay;

(g) The medical restrictions and accommodations provided, if the employee is returning to a position with accommodations;

(h) Duration of the assignment, and

(i) Notification that the employee must elect to accept the position within three (3) days of issuance of the notice or his or her disability compensation benefits will be forfeited.

142.9 An employee must report to the modified duty assignment on the assigned date. Failure to report to the modified duty assignment shall be deemed a rejection of the modified duty assignment, which shall result in the forfeiture of all disability compensation benefits and such benefits shall be terminated by the Program.

142.10 The employing agency or assigned agency shall notify the Program if, after the employee returns to work, the same injury causes the employee to stop work again.

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12229 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8771 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017); as amended by Final Rulemaking published at 66 DCR 4246 (April 5, 2019). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 142

7 DCMR § 143 EMPLOYEE RETENTION

143.1

(a) An employee whose claim of disability is accepted by the Program shall have the right to resume the position he or she occupied before the date of the disability, or an equivalent position, if the employee overcomes the disability within two (2) years after commencement of compensation and provision of all necessary medical treatment needed to lessen the disability.

(b) If an employee whose claim of disability is accepted by the Program resumes regular full-time employment with the District government when the original disability is overcome, and the disability thereafter recurs, the employee shall have the right to resume the position he or she occupied before the date of the recurrence of the compensable disability, if the employee overcomes the recurrence of the disability within two (2) years after the disability recurs.

143.2 For the purposes of this section, the phrase “overcome an accepted work injury, disease, or condition” means able to perform the essential functions and duties of the job.

143.3 For the purposes of this section, the phrase “lessen the disability” means an increased ability to work or increase in wage-earning capacity from the time of injury or initial disability after receipt of treatment that is supported by medical evidence.

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12229 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8771 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017); as amended by Final Rulemaking published at 66 DCR 4246 (April 5, 2019). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 143

7 DCMR § 144 MODIFICATION OF AWARD OF COMPENSATION

144.1 The Program may modify an award of compensation if the Program has reason to believe that the claimant’s PSWCP file and records establish:

(a) A change of condition has occurred pursuant to Section 2324(d)(1) of the Act (D.C. Official Code § 1-623.24(d)(1));

(1) A change of condition means a change to a claimant’s accepted medical condition or other circumstance, such as incarceration, vocational or other education studies, that affect the claimant’s ability to earn wages; or

(b) A change to the claimant’s accepted medical condition has occurred pursuant to Section 2324(d)(4) of the Act (D.C. Official Code § 1-623.24(d)(4)) for one of the following reasons:

The disability for which compensation was paid has ceased or lessened;

The disabling condition is no longer causally related to the accepted work injury;

Claimant’s condition has changed from total disability to partial disability;

Claimant has been released to return to work with or without restrictions; or

The Program determines based on compelling evidence that the initial decision was in error.

144.2 An “award of compensation” means a Program determination or Compensation Order issued pursuant to section 2324 of the Act (D.C. Official Code § 1-623.24) and shall not include calculations set forth in a Notice of Benefits or adjustments to benefits made pursuant to § 145 of this chapter.

144.3 Except as provided at Subsection 144.3(a), the Program will provide the claimant with prior written notice of the proposed action to modify an award of compensation pursuant to § 144 of this chapter and give the claimant thirty (30) days to submit relevant evidence or argument to support entitlement to continued payment of compensation prior to issuance of an Eligibility Determination (ED), where the Program has a reason to believe that compensation should be modified due to a change of condition pursuant to Sections 2324(d)(1) and (4) of the Act. An ED shall be accompanied by information identifying the employee’s appeal rights and, for termination of benefits, claimant’s time limitation from the date of the notice to make a claim for permanent disability compensation.

(a) Prior written notice will not be given when:

(1) The claimant dies;

(2) The Program either reduces or terminates compensation upon a claimant’s return to work or release to return to work;

(3) The claimant has been convicted of fraud in connection with the claim;

(4) When the award of compensation was for a closed period, which has expired;

(5) The Program issues an initial determination where a claim has been deemed accepted pending such issuance; or

(6) The claimant’s benefits are suspended for failure to:

(A) Participate in vocational rehabilitation, if the claimant is hired on or after January 1, 1980;

(B) Follow prescribed and recommended course of medical treatment from the treating physician; or

(i) Attend the examination,

(ii) Bring medical records under the claimant’s possession and control to the examination, or

(iii) Any other obstruction of the examination.

144.4 Prior notice provided under this section will include a description of the reasons for the proposed action and a copy of the specific evidence upon which the Program is basing its determination. Payment of compensation will continue until any evidence or argument submitted has been reviewed and an appropriate decision has been issued, or until thirty (30) days have elapsed after the issuance of the notice if no additional evidence or argument is submitted.

144.5

(a) If a claimant timely files his or her response to the Program’s prior written notice of proposed modification and identifies additional evidence the claimant wishes to submit, the Program shall allow the claimant additional time to submit evidence, where claimant establishes good cause for the delay in acquiring the evidence.

If the claimant submits evidence or argument prior to the issuance of the decision, the Program will evaluate the submission in light of the proposed action and undertake such further development as it may deem appropriate, if any. Evidence or argument that is repetitious, cumulative, or irrelevant will not require any further development. If the claimant does not respond within thirty (30) days of the prior written notice, the Program will issue a decision consistent with its prior written notice. The Program will not grant any request for an extension of this thirty (30) day period.

Evidence or argument that refutes the evidence upon which the proposed action was based will result in the continued payment of compensation. If the claimant submits evidence or argument that fails to refute the evidence upon which the proposed action was based but which requires further development of the evidence and basis for the decision, the Program will not provide the claimant with another notice of its proposed action upon completion of such development. Once any further development of the evidence is completed, the Program will either continue payment or issue a decision consistent with its prior written notice or further developed evidence.

144.6

(a) If substantial evidence in the claimant’s Program file establishes that a claimant hired before January 1, 1980, without good cause failed to apply for or undergo vocational rehabilitation, when directed by the Program:

(1) The Program may propose a reduction of wage-loss compensation and present the proposed reduction to the Compensation Review Board (CRB) for review; and

(2) The CRB shall affirm the reduction in benefits, if it determines that there is substantial evidence in the record to show that the wage-earning capacity of the individual would probably have substantially increased, absent the claimant’s failure to attend vocational rehabilitation, as directed by the Program.

(b) For the purposes of this subsection, the term “substantially increase” means an increase in wage-earning capacity of fifty percent (50%) or more.

(c) The Program shall compute the claimant’s wage-earning capacity by conducting a labor market survey or applying the factors provided at Section 2315 of the Act (D.C. Official Code § 1-623.15) based on the assumption the claimant has enrolled completed in vocational rehabilitation. The claimant’s annual wage-earning capacity shall be divided by twelve (12) to arrive at the claimant’s monthly wage-earning capacity. The claimant’s monthly wage-earning capacity assuming enrollment incompletion of vocational rehabilitation shall be compared against the claimant’s wage-earning capacity without enrollment or incompletion of vocational rehabilitation. If the claimant’s wage-earning capacity assuming enrollment in completion of vocational rehabilitation exceeds the claimant’s wage-earning capacity without vocational rehabilitation by fifty percent (50%) or more, the Program may propose a reduction of wage-loss compensation.

144.7 Failure to apply for or undergo vocational rehabilitation shall include failure to attend meetings with the vocational rehabilitation counselor, failure to apply for jobs that have been identified for the claimant, or failure to otherwise participate in good faith in the job application process.

144.8 In all claims, the claimant is responsible for continual submission, or arranging for the continual submission of, a medical report from the attending physician as evidence supporting the reason for continued payment of compensation under the award of compensation.

144.9 For wage-loss compensation benefits, “reason to believe” that the disability for which compensation was paid has ceased pursuant to §§ 144.1(b)(1) and 144.3(a) of this chapter includes a claimant’s failure to provide contemporaneous medical evidence to show that:

(a) The accepted condition remains disabling; and

(b) The nature and extent of the ongoing disability necessitate claimant’s continued absence from work or restricts claimant from performing the full scope of pre-injury duties.

144.10 For medical compensation benefits, “reason to believe” that the condition for which compensation was paid has ceased pursuant to § 144.3(a) of this chapter includes a claimant’s lack of treatment for the accepted condition for one year or more.

144.11 Compensation benefits that have been suspended under this section may be resumed if a claimant cures the deficiency that gave rise to the suspension, unless benefits have been terminated. Resumption of compensation benefits that have been suspended shall occur on a prospective basis.

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12229 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8771 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017); as amended by Final Rulemaking published at 66 DCR 4246 (April 5, 2019); as amended by Final Rulemaking published at 67 DCR 7481 (June 12, 2020). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 144

7 DCMR § 145 ADJUSTMENTS TO BENEFITS

145.1 A claimant’s benefits shall be adjusted, where the claimant’s PSWCP file and records establish substantial evidence that:

(a) The claimant’s benefits shall be forfeited for failure to:

Complete a report of earnings pursuant to § 138 of this chapter; or

Accept a modified duty assignment offered within the time prescribed at § 142 of this chapter.

(b) The claimant’s benefits shall be terminated because the claimant’s compensation benefits have been subject to forfeiture for failure to complete a report of earnings for more than ninety (90) days;

The claimant’s eligibility for wage-loss compensation is subject to limitations provided at Section 2316 of the Act (D.C. Official Code § 1-623.16) and § 134 of this chapter; or

(d) The claimant is no longer eligible for benefits for reasons not otherwise prescribed at Section 2324(d) of the Act (D.C. Official Code § 1-623.24(d)).

145.2 The Program shall provide a written notice to a claimant when benefits are adjusted pursuant to § 145.1 of this chapter and inform the claimant of his or her right to appeal to the Chief Risk Officer.

145.3 Prior written notifications pursuant to Section 2324(d) of the Act (D.C. Official Code § 1-623.24(d)) shall not apply to adjustments to benefits issued pursuant to § 145 of this chapter.

145.4 The Program shall provide a written Notice of Benefits to a claimant if there is an adjustment in the claimant’s wage-loss compensation benefits or a correction of a technical error that results in a change to the claimant’s wage-loss compensation benefits and inform the claimant of his or her right to appeal to the Chief Risk Officer.

145.5 Compensation benefits that have been forfeited under this section may be resumed if a claimant cures the deficiency that gave rise to the forfeiture, unless benefits have been terminated. Resumption of compensation benefits that have been forfeited shall occur on a prospective basis; except, that compensation benefits may be restored on a retroactive basis where a good cause determination has been made, pursuant to § 147 of this chapter, for reversal of the suspension or forfeiture decision.

145.6 Periods of forfeiture shall be counted toward the five hundred (500)-week limitation in Section 2306a of the Act (D.C. Official Code § 1-623.06a).

145.7 [REPEALED]

145.8 [REPEALED]

145.9 [REPEALED]

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12229 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8771 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017); as amended by Final Rulemaking published at 66 DCR 4246 (April 5, 2019). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 145

7 DCMR § 146 WEIGHING MEDICAL EVIDENCE

146.1 When the Program receives medical evidence from more than one source, it should evaluate the relative value, or merit, of each piece of medical evidence.

146.2 In evaluating the merits of medical reports, no preference shall be given to treating physicians. The Program shall evaluate the probative value of the report and assign greater value to:

(a) An opinion based on complete factual and medical information over an opinion based on incomplete, subjective or inaccurate information. Generally, a physician who has physically examined a patient, is knowledgeable of his or her medical history, and has based the opinion on an accurate factual basis, has weight over a physician conducting a file review with no knowledge of the patient’s medical history or fails to take into account or omits other relevant medical conditions that relate to or may be related to the condition at issue.

(b) An opinion based on a definitive test(s) and includes the physician’s findings. Some medical conditions can be established by objective testing. Medical reports that contain objective findings shall be assigned greater weight than those that fail to account for or include objective findings, where the condition can be established or excluded by such finding.

(c) A well-rationalized opinion over one that is unsupported by affirmative evidence. The term “rationalized” means that the statements of the physician are supported by an explanation of how his or her conclusions are reached, including appropriate citations or studies. An opinion that is well-rationalized provides a convincing argument for a stated conclusion that is supported by the physician’s reasonably justified analysis of relevant evidence. For example, an opinion which is supported by the interpretation of diagnostic evidence and relevant medical or scientific literature is well-rationalized. Conversely, an opinion which states a conclusion without explaining the interpretation of evidence and reasoning that led to the conclusion is not well-rationalized.

(d) The opinion of an expert over the opinion of a general practitioner or an expert in an unrelated field. However, conclusive statements of an expert without any underlying justification, other than affirmation of the physician’s expertise, are not to be viewed as carrying significant probative value over that of a general practitioner report that is well-rationalized and/or supported by applicable affirmative evidence.

(e) An unequivocal opinion over one that is vague or speculative. A physician offering a clear, unequivocal opinion on a medical matter is to be viewed as more probative compared to an opinion that waivers or hesitates in its presentation or contains vague and speculative language. An opinion which contains verbiage such as “possibly could have” or “may have been” or provides a guess or estimation indicates speculation on the part of the physician.

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12229 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8771 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 145

7 DCMR § 147 GOOD CAUSE DETERMINATION

147.1 A good cause determination shall be supported by evidence that establishes good cause as defined at § 199.1(q) and the proponent’s failure to act does not result in undue prejudice to the opposing party.

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12229 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8771 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 147

7 DCMR § 148 ROUNDING RULES

148.1 Except where otherwise noted under this chapter, all amounts, percentages, and other numbers are rounded down to the nearest hundredth, which is two decimal places.

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12229 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8771 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 148

7 DCMR § 149 COMPUTATION OF TIME

149.1 Any days required to be counted shall be counted commencing with the day after the date referenced in the rule, or, if a decision is issued, the date after the certificate of service attached to the decision issued by the Program or hearing forum.

149.2 If the deadline for any activity falls on a Sunday, Saturday, legal holiday, or a day that is normally a business day but on which the District government is otherwise closed, such as for snow or other emergency, the deadline will be continued to the next business day.

149.3 Whenever it is not specified by the plain language of the rule, the term “day” or “days” shall mean “calendar day” or “calendar days.”

149.4 For the purposes of the Act and this chapter, a form or required document is deemed timely filed if it is received by the Program by the due date.

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12229 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8771 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017); as amended by Final Rulemaking published at 66 DCR 4246 (April 5, 2019). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 149

7 DCMR § 150 TRANSPORTATION AND MILEAGE

150.1 The Program may provide a claimant with transportation to and from a physical examination or medical treatment that is authorized by the Program pursuant to this chapter.

150.2 Unless § 150.3 applies, a claimant who needs transportation to and from a physical examination or medical treatment shall request such transportation from the Program by completing and submitting Form 11 with supporting documentation no later than five (5) business days before the authorized physical examination or medical treatment. Once the travel is completed, claimant must submit a request for reimbursement pursuant to § 150.7.

150.3 If there is a need for immediate medical treatment and, due to the nature of the disability and injury accepted by the Program, the injured claimant is unable to contact the Program and make a request pursuant to § 150.2, the claimant may still submit a request for reimbursement pursuant to § 150.7, provided that claimant submits medical evidence from the physician certifying that there was need for immediate medical treatment due to the nature of the disability and injury accepted by the Program.

150.4 Upon request made pursuant to § 150.2, the Program may furnish necessary and reasonable transportation for:

(a) An initial examination at a physician selected by the claimant;

(b) An additional medical examination required by the Program; and

(c) A routine physical examination, outpatient or inpatient surgical procedure, or any services provided in accordance with Section 2303(d)(1) of the Act.

150.5 For purposes of this section, “necessary,” means that the claimant is not capable of driving himself or herself or using public transportation to get to the examination, due to the accepted medical condition or disability and injury. To establish that transportation is necessary, the claimant must provide the Program with medical documentation from his or her treating physician certifying that the transportation is necessary within the meaning of this section.

150.6 For purposes of this section, “reasonable transportation,” is

(a) Public transportation, mileage, or parking;

(b) Transportation to an examination that is located within twenty-five (25) miles of the District of Columbia; and

150.7 To request reimbursement of necessary and reasonable transportation expenses pursuant to §§ 150.2 and 150.3, the claimant shall:

(a) Submit Form 11 to the Program within thirty (30) days of the date that the claimant incurred the expense; and

(b) Include verifiable supporting evidence of the expenditures at the time Form 11 is submitted to the Program.

150.8 Failure to comply with § 150.7 will result in denial of claimant’s request for reimbursement.

150.9 Reimbursements for mileage shall be based upon the distance from either the claimant’s place of employment or home to the physician’s office or treating facility. The cost per mile reimbursed by the Program shall be at the same rate as the United States General Services Administration Privately Owned Vehicle Mileage Reimbursement Rates. The cost per mile shall be included on Form 11.

150.10 Decisions on requests made pursuant to §§ 150.2 and 150.3 shall be made within ninety (90) days of the date the request was received by the Program.

150.11 Subject to the provisions of this section, the Program shall furnish or authorize necessary and reasonable transportation to claimants within thirty (30) days after the Program receives notice that the claimant was injured.

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12229 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8771 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017); as amended by Final Rulemaking published at 67 DCR 7481 (June 12, 2020). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 150

7 DCMR § 151 THIRD PARTY RECOVERY

151.1 If the Program determines that an injury or death for which indemnity compensation is payable under this chapter is caused under circumstances creating a legal liability on the part of a third party to pay the District or the employee damages, the employee (or authorized representative if the employee is deceased) shall prosecute the action within sixty (60) days of the incident.

151.2 If the employee (or authorized representative if the employee is deceased) does not prosecute the action within sixty (60) days of the incident, the employee (or authorized representative, as applicable) shall assign to the District of Columbia government:

(a) Any right of action the employee or employee’s estate may have to enforce the liability; or

(b) Any right that the employee or employee’s estate may have to share in money or other property received in satisfaction of that liability.

151.3 If an employee or authorized representative refuses to assign or prosecute an action in his or her own name when required to do so by the Program pursuant to §§ 151.1 and 151.2, the Program shall suspend the employee’s current or prospective benefits, unless the employee provides the Program with evidence of extenuating circumstances that prevents the employee from prosecuting the action at the time required by the Program. A claimant’s continual refusal to assign or prosecute an action for more than twelve (12) months from the date of the incident without an accepted excuse from the Program shall result in termination of the claimant’s indemnity compensation.

151.4 The Program may refer to the Office of the Attorney General (OAG) for civil prosecution a cause of action assigned to the District of Columbia government under § 151.2.

151.5 Recoveries by the Program following an assignment shall be distributed pursuant to Section 2331(c) of the Act.

(a) If there are any funds remaining after the deductions and payments made pursuant to § 151.6, the Program shall deposit the remaining funds into the Employees’ Compensation Fund and the funds shall be used to pay the employee’s future compensation payable for the same injury.

151.6 If an employee claimant prosecutes a third party for an injury or death for which compensation is payable under this chapter and recovers money or other property in satisfaction of the third party’s liability, the employee, after deducting the costs of the prosecution, reasonable attorneys’ fees, and one-fifth (1/5) of the net amount of money or property remaining after payment of expenses and attorneys’ fees, shall pay to the Program the amount of compensation already paid by the Program to the employee under this chapter. The payment shall be credited to the Employees’ Compensation Fund. If there are any funds remaining after the employee’s payment to the Program, the remaining sum shall be a credit for the same amount of future payments of compensation by the Program for which the employee is eligible. The Program shall not pay the employee the number of future payments that totals the amount of the credit.

(a) The amount due to the District pursuant to this section shall be calculated as of the date of the settlement. Any indemnity or medical compensation received by the employee after the date of the settlement shall be treated as “future payments of compensation” within the meaning Section 2332 of the Act. If the Program has already paid the employee “future payments of compensation” at the time the settlement is reported, “future payments of compensation” that total the amount of the credit or surplus shall be treated as debt to the District of Columbia.

(b) “Costs of suit” under Section 2332 if the Act means court filing, non-expert witness fees, deposition transcript, subpoena and photocopying fees, excluding transportation fees.

151.7 If an employee or claimant successfully prosecutes a claim against a third party pursuant to § 151.1 of this chapter and fails to remit payment to the Program, the amount owed shall be:

(a) Withheld from the claimant’s indemnity compensation payments.

(b) If the employee or claimant is not receiving indemnity compensation payments, the amount due shall be treated as an employee debt to the District pursuant to Section 2902 and 2904 of the Act and subject to civil prosecution in the Superior Court for the District of Columbia. Pursuant to Section 2901(g) of the Act, Sections 2901(a) through (f) of the Act shall not apply to limit the Program’s ability to collect on overpayments.

(c) Recovery of the amounts owed pursuant to 2904 of the Act includes an offset against claimant’s indemnity compensation payments.

151.8 No court, insurer, attorney, defendant, or other person shall pay or distribute to the claimant or his or her designee the proceeds of such suit or settlement without first satisfying or assuring satisfaction of the interest of the District of Columbia government pursuant to § 151.6.

151.9 The employee or claimant, insurer, attorney, or other person, shall notify the District of any settlement or judgment entered within fourteen (14) days of the settlement of or entry of judgment in any third-party claim filed pursuant to § 151.1.

151.10 An attorney, who represents a District employee, who was injured during the course of his or her employment, against a third-party tort-feasor shall not be excused of his or her obligation to satisfy the District’s interest in the proceeds of such suit or settlement, unless, the attorney has received written confirmation from the District that it does not have a lien against any such recovery.

151.11 Any employee or claimant, insurer, defendant, or other person who fails to comply with §§ 151.6 through 151.9 of this chapter shall be held jointly and severally liable to the District of Columbia government for the amount due as calculated pursuant to § 151.6 of this chapter, plus pre-judgment interest, reasonable attorney’s fees and costs incurred by the District.

(a) Pre-judgment interest shall be calculated pursuant to D.C. Official Code § 28-3302(c) starting on the fifteenth (15th) day after settlement or entry of judgment.

151.12 If an employee returns to work and is then required to appear as a party or witness in the prosecution of an action under this section, the employee shall be considered to be in an active duty status while so engaged.

151.13 The Program may treat any payment due to the District under Section 2332 of the Act as an employee debt to the District pursuant to Section 2902 and 2904 of the Act. Pursuant to Section 2901(g) of the Act, Sections 2901(a) through (f) of the Act shall not apply to limit the Program’s ability to collect on debt due under this section.

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12229 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8771 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 151

7 DCMR § 152 DEATH BENEFITS

152.1 In the case of the death of an employee, the Program shall determine the compensation owed to the employee’s beneficiary or beneficiaries by following the requirements of Section 2333 of the Act.

152.2 The maximum and minimum limits on compensation included in Section 2333 of the Act shall be determined by following the federal general pay scale when using Section 5332 of Title 5 of the United States Code, and by following the non-union, District career service (general) pay scale when using the District pay scale.

152.3 A beneficiary or beneficiaries receiving death benefits are not entitled to continuation of pay pursuant to § 107 of this chapter.

152.4 When a beneficiary begins to receive compensation under this section, the Program shall notify the beneficiary of the condition(s) under which death benefits may cease, including upon the beneficiary’s marriage, re-marriage, or entering into a domestic partnership, or upon the beneficiary’s reaching eighteen (18) years of age, pursuant to Section 2333 of the Act.

152.5 On a regular basis, the Program may require a beneficiary to confirm his or her marital or domestic partnership status and age, and the Program may conduct any investigation necessary pursuant to §§ 135.2 - 135.3 to confirm this information. Any beneficiary receiving death benefits under this section shall cooperate with such investigation by providing all relevant information that the Program requests and by notifying the Program when his or her eligibility for benefits under this section changes. A beneficiary’s failure to notify the Program of changes in eligibility for benefits under this section may result in the Program initiating overpayment proceedings pursuant to § 133 of this chapter.

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12229 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8771 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 152

7 DCMR § 153 REQUESTS FOR AUDIT OF COMPENSATION BENEFITS

153.1 A claimant who believes that the Program has incorrectly calculated his or her medical compensation, wage-loss compensation, or death benefit may request an audit of the Program’s calculation by completing Form A-1 and submitting it to the Chief Risk Officer, provided that the claimant’s medical compensation, wage-loss compensation or death benefits were not terminated more than three (3) years before the date of the Form A-1 submission.

153.2 The Chief Risk Officer shall affirm the Program’s calculations, if it is supported by substantial evidence in the record. Otherwise, at the discretion of the Chief Risk Officer, the Program’s decision may be modified, revised or remanded to the Program with instructions.

153.3 The Chief Risk Officer shall notify the claimant in writing of his or her decision on the audit request within thirty (30) days of the Program’s receipt of the request, unless the Chief Risk Officer provides notice in writing that extenuating circumstances preclude him or her from making a decision within this period.

153.4 If no decision or notice of extenuating circumstances is issued within thirty (30) days, the calculation which forms the basis of the claimant’s request for an audit shall be deemed the final decision of the agency in response to the claimant’s request and the claimant may seek review of the calculations before the Superior Court of the District of Columbia on timely petition for review by the claimant.

153.5 Any retroactive benefits due to the claimant as result of a request made under this chapter are subject to the limitations of D.C. Official Code § 12-301(8).

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12229 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8771 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017); as amended by Final Rulemaking published at 66 DCR 4246 (April 5, 2019). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 153

7 DCMR § 154 ASSIGNMENT OF CLAIM AND DELIVERY OF COMPENSATION

154.1 An assignment for a claim of compensation under this chapter is void.

154.2 Compensation received under this chapter is exempt from the claims of creditors. This subsection does not apply in the case of a valid court order to garnish wages for child support or other lawful purposes.

154.3 A payment of compensation, schedule award, settlement payment, or any other payment made under this chapter shall not be delivered to any person other than the claimant entitled to that payment or that claimant’s legal guardian unless the claimant has submitted a request in writing that the payment be delivered to another specified person, including the claimant’s attorney, and which is not in violation of Section 2330 or any provision of the Act. This subsection shall not apply to attorneys’ fees that a judicial entity may order the Program to pay an attorney under the Act.

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12229 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8771 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 154

7 DCMR § 155 OFFICE OF ADMINISTRATIVE HEARINGS (OAH), JURISDICTION

155.1 Beginning December 1, 2016, the following decisions shall be appealed to the Office of Administrative Hearings (OAH):

(a) Initial awards for or against compensation benefits pursuant to Section 2324(b) of the Act (D.C. Official Code § 1-623.24(b)); and

(b) Modification of awarded compensation benefits pursuant to Section 2324(d) of the Act (D.C. Official Code § 1-623.24(d))..

155.2 Requests for determination of whether claimant has a permanent disability pursuant to Section 2306a shall be made to the Office of Administrative Hearings (OAH).

155.3 All appeals filed prior to December 1, 2016, for decisions described at 7 DCMR §§ 144.1 (a), (b), and (c) (repealed by adoption of these regulations) shall be made to the Department of Employment Services, Office of Hearings and Adjudications (OHA).

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12229 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8771 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017); as amended by Final Rulemaking published at 66 DCR 4246 (April 5, 2019). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 155

7 DCMR § 156 OFFICE OF RISK MANAGEMENT, JURISDICTION

156.1 A claimant who is dissatisfied with a decision issued by the Program, other than a decision subject to review by OAH as set forth in § 155 of this chapter, may only appeal the decision to the Chief Risk Officer.

156.2 Appeals to the Chief Risk Officer shall:

(a) Be filed within fifteen (15) days from the date the decision was issued, unless otherwise provided or good cause is established when filed after fifteen (15) days to permit consideration of the appeal;

(b) Contain information required under this chapter; and

156.3 The Chief Risk Officer shall affirm the Program’s decision if it is supported by substantial evidence in the record. Otherwise, at the discretion of the Chief Risk Officer, the claimant’s appeal may be dismissed for failure to state a claim, lack of jurisdiction, procedural errors, or other appropriate reason or the Program’s decision may be affirmed, modified, or remanded to the Program with instructions.

156.4 The Chief Risk Officer shall notify the claimant in writing of his or her decision within thirty (30) days after the Program’s receipt of the appeal. If no decision is issued within the thirty (30)-day period, the Program’s decision shall be deemed the final decision of the agency for appeal to the Superior Court of the District of Columbia as provided in § 156.5 of this chapter, unless the Chief Risk Officer issues a decision before the date on which the appeal to the Superior Court is filed.

156.5 The final decision of the agency under § 156.4 may be reviewed by the Superior Court of the District of Columbia on timely petition for review by the employee pursuant to District of Columbia Superior Court Rules of Civil Procedure Agency Review Rule 1.

156.6 A dispute arising under Section 2323 of the Act (D.C. Official Code § 1-623.23) between a qualified health professional, claimant, or the Program on the issue of necessity, character, or sufficiency of the medical care, supply, or service furnished, or scheduled to be furnished, or the fees charged by the healthcare provider (including a physician or organization providing Additional Medical Examination or utilization review services) shall be resolved by the Chief Risk Officer upon application for a hearing by the Program, claimant, or healthcare provider, in accordance with the applicable hearing rules provided at § 157 of this chapter.

156.7 As provided in Section 2323(a-2)(4) of the Act (D.C. Official Code § 1-623.23(a-2)(4)):

(a) The decision of the Chief Risk Officer pursuant to § 156.6 of this chapter may be reviewed by the Superior Court of the District of Columbia;

(b) The decision may be affirmed, modified, revised, or remanded in the discretion of the court; and

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12229 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8771 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017); as amended by Final Rulemaking published at 66 DCR 4246 (April 5, 2019). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 156

7 DCMR § 157 HEARING RULES

157.1 OAH Rules 2950 through 2969 (OAH Rules) shall apply to management of PSWCP cases filed pursuant to Section 2324 of the Act (D.C. Official Code § 1-623.24) with the Department of Employment Services, Office of Hearings and Adjudications (OHA) and Office of Administrative Hearings (OAH).

157.2 If no procedure is specifically prescribed by the OAH Rules, the Superior Court for the District of Columbia Rules may be used as guidance, to the extent practicable.

157.3 The OAH Rules shall govern the conduct of hearing of cases filed pursuant to Section 2324 of the Act (D.C. Official Code § 1-623.24), unless the ALJ determines that their application impairs the ALJ’s ability to ascertain the claimant’s rights pursuant to Section 2324(b)(2) of the Act (D.C. Official Code § 1-623.24(b)(2)).

157.4 Hearings before the Chief Risk Officer (CRO) requested pursuant to Section 2323 of the Act (D.C. Official Code § 1-623.23) shall be conducted under the following rules (the “ORM Hearing Rules”):

Hearings before the CRO shall be held by a hearing representative appointed by the CRO.

A claimant, healthcare provider, or the Program may request an oral hearing or a hearing on the written record and shall so indicate on Form 9H:

Within thirty (30) calendar days after the date of the Program’s decision denying authorization for medical care or services; or

Within six (6) months of the later of the date of the bill, the date of initial payment of the bill, or the date of the initial Explanation of Review.

The party requesting the hearing (hereinafter “hearing proponent”) shall submit, with his or her request for a hearing, all evidence or written argument that he or she wants to present to the hearing representative.

If the Program is requesting the hearing pursuant to Section 2323 of the Act (D.C. Official Code § 1-623.23), the Program shall mail a copy of the hearing request to all parties involved. Each other party shall have fifteen (15) days to file a written response with supporting evidence or written argument to the Program hearing request with the hearing representative.

If requested by any party, the hearing representative shall schedule an oral hearing and determine, at his or her discretion, whether the oral hearing will be conducted in person, by teleconference, by videoconference, or by other electronic means. The hearing representative shall have sole discretion to set the time, place, and method of the hearing. The hearing representative shall provide written notice through an acknowledgment letter to each party of the time, place, and method of the hearing. The acknowledgment letter shall be provided within a reasonable period of time prior to, but no less than seven (7) days before, the date and time of the hearing

After the oral hearing has been scheduled and the hearing representative has transmitted appropriate written notice to the parties, the hearing representative may, upon submission of proper written documentation of an unavoidable serious scheduling conflict (such as court-ordered appearance or trial, jury duty, or a previously scheduled medical procedure), grant a request from any party to reschedule the hearing, as long as the hearing can be rescheduled to a date and time that is no more than thirty (30) days after the originally scheduled date and time. When a request to postpone a scheduled hearing by the hearing proponent cannot be accommodated under this paragraph, no further opportunity for an oral hearing shall be provided. Instead, the hearing will take the form of a review of the written record.

Where either party or its representative is hospitalized for a non-elective reason or where the death of the claimant’s, healthcare provider’s, or representative’s parent, spouse, child, or other immediate family member prevents attendance by the party or its representative at the hearing, the hearing representative shall, upon submission of proper documentation, grant a postponement beyond the period prescribed in paragraph (f) of this subsection.

A decision regarding rescheduling under paragraphs (d) through (g) of this subsection shall be in the sole discretion of the hearing representative.

When the proponent of an oral hearing fails to appear at the scheduled hearing, the hearing shall take the form of a review of the written record and a decision shall issue accordingly.

Before the date of the oral hearing, the hearing representative may change the format of the hearing from an oral hearing to a review of the written record upon the hearing proponent’s request. The decision to grant or deny a change of format from an oral hearing to a review of the written record shall be in the sole discretion of the hearing representative.

A request for reasonable accommodation by an individual with a disability shall be made through the procedure described in the initial acknowledgement letter.

The hearing shall be an informal process, and the hearing representative shall not be bound by common law or statutory rules of evidence, by technical or formal rules of procedure, or by the Administrative Procedure Act.

During the hearing, the party requesting the hearing shall be given up to thirty (30) minutes to present argument in support of the relief sought; each responding party shall be given up to thirty (30) minutes to present argument in support of its position. The hearing representative may ask questions of those presenting information on behalf of any party.

When conducting the hearing, the hearing representative may review the claim file and any additional evidence submitted by the parties that has already been exchanged between the parties in advance of the hearing.

The hearing representative shall determine the conduct of the oral hearing. Oral hearings shall be limited to no more than ninety (90) minutes. The hearing representative may extend this limitation at his or her discretion or terminate the hearing at any time he or she determines that all relevant evidence has been obtained, or because of misbehavior on the part of the claimant and/or representative. The hearing representative may stay the hearing and direct the parties to address matters that come up during the hearing.

Argument at an oral hearing, including an oral hearing conducted by teleconference, videoconference, or other electronic means, shall be recorded and placed in the record. The transcript of the hearing shall be the official record of the hearing.

The Office of Risk Management shall file a transcript of the oral hearing with the Superior Court as a part of the agency record, upon request for a review of the hearing representative’s decision made pursuant to Section 2323 of the Act (D.C. Official Code § 1-623.23).

The hearing record shall be closed after the hearing is held, unless the hearing representative, in his or her discretion, grants an extension. A request for an extension must be made orally at the hearing or submitted in writing no later than ten (10) days after the hearing is held. Only one (1) such extension may be granted. A copy of the hearing representative’s decision on the extension request shall be transmitted to all parties.

When conducting a hearing on the written record, the hearing representative shall issue a decision within forty-five (45) days after receipt of the hearing request.

When conducting an oral hearing, the hearing representative shall issue a decision within thirty (30) days after the date of the oral hearing.

When conducting a hearing regarding the necessity, character, or sufficiency of medical care or service furnished, or scheduled to be furnished, the hearing representative may initiate a utilization review pursuant to Section 2323 of the Act (D.C. Official Code § 1-623.23), and the relevant time periods set forth in paragraphs (s) and (t) of this section shall be stayed pending completion of the utilization review. The hearing representative shall issue a notice to all parties informing the parties that a utilization review has been initiated and that the time period for a decision has been stayed pending completion of utilization review.

The proponent of the hearing may withdraw the hearing request at any time up to the time the decision is issued.

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12229 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8771 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017); as amended by Final Rulemaking published at 66 DCR 4246 (April 5, 2019). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 157

7 DCMR § 158 HEARINGS, STANDARD OF REVIEW

158.1 All appeals of Program decisions before the OAH and OHA shall be reviewed under a de novo standard of review.

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12229 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8771 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 158

7 DCMR § 159 HEARINGS, BURDEN OF PROOF

159.1 Burden of Proof, Initial Determination. Claimant has the burden to prove, by a preponderance of the evidence (more likely than not)

(a) That the injury was work related; and

(b) The extent and nature of Claimant’s injuries and disability.

159.2 Burden of Proof, Termination, or Modification of Award.

(a) If the Program seeks to terminate or modify an award, it must present substantial evidence that the Program had reason to believe:

(1) Claimant’s accepted medical condition or other circumstance that affects the claimant’s ability to earn wages has sufficiently changed to warrant modification or termination of benefits; or

(2) The claimant’s medical condition had sufficiently changed to warrant modification or termination of benefits;

(3) The claimant had been convicted of fraud in connection with the claim; or

(4) The initial decision was in error.

(b) Once the Agency presents such evidence, the claimant shall have the burden to prove, by a preponderance of the evidence, the entitlement to ongoing benefits, as well as the nature and extent of disability.

159.3 Burden of Proof, Recurrence of Disability. The claimant has the burden to prove by clear and convincing evidence that a recurrence of disability is causally related to the original injury.

159.4 Burden of Proof, Permanent Disability. The claimant shall have the burden to prove, by a preponderance of the evidence, that he or she is entitled to an award for permanent disability, when requesting a permanent disability award pursuant to Section 2306a of the Act (D.C. Official Code § 1-623.06a).

159.5 Burden of Proof, Necessity, Character, Sufficiency of Medical Service, Supply, or Care. The party that requests the hearing has the burden to prove, as applicable, by a preponderance of the evidence, that the medical care or service furnished or sought to be furnished:

Is proper to treat a condition that has been accepted by the Program as compensable under the Act;

(b) Is improper to treat a condition that has been accepted by the Program as compensable under the Act; or

159.6 Burden of Proof, Healthcare Provider Fees. The healthcare provider shall have the burden to prove, by a preponderance of the evidence, that the healthcare provider is entitled to the relief sought.

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12229 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8771 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017); as amended by Final Rulemaking published at 66 DCR 4246 (April 5, 2019). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 159

7 DCMR § 160 HEARING DECISIONS, COMPLIANCE AND ENFORCEMENT

160.1 The ALJ shall issue an order to reverse, modify, affirm, or remand a determination rendered by the Program within thirty (30) days after the hearing ends or the record closes.

160.2 Unless the OHA or OAH decision is stayed by a reviewing administrative or judicial forum, the Program shall comply with the decision within thirty (30) calendar days after the date the decision becomes final.

160.3 If the Program fails to comply with the final decision within the time prescribed at § 160.2 of this chapter:

(a) The claimant shall file Form A-1 with the General Counsel for the Office of Risk Management to request computation of benefits due pursuant to the compensation order;

(b) Within thirty (30) days from the date the request was received, the Program shall certify an amount due to the claimant under the compensation order; and

(c) Once a certification of compensation is issued, the claimant may file for a lien in the amount certified against the Disability Compensation Fund, the General Fund, or any other District fund or property to pay the compensation award with the Superior Court of the District of Columbia.

160.4 A claimant may dispute the Program’s benefits calculations by appealing the Notice of Benefits to the Chief Risk Officer pursuant to § 156 of this chapter.

160.5 Increases in awards available under Section 2324(g) of the Act shall be limited to awards for indemnity compensation.

160.6 A decision issued on an appeal filed pursuant to Section 2324 or 2328 of the Act (D.C. Official Code §§ 1-623.24 or 1-623.28) shall be limited to a decision for or against the payment of compensation. The Program shall calculate and issue a Notice of Benefits in accordance with a compensation order which determines the rate of compensation and period of award.

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12229 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8771 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017); as amended by Final Rulemaking published at 66 DCR 4246 (April 5, 2019). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 160

7 DCMR § 161 INTEREST ON COMPENSATION AWARDS

161.1 Interest may only be awarded where the Program fails to make payment toward the compensation award within twelve (12) months after the date of the compensation order.

161.2 Interest on compensation awards, when awarded, shall:

(a) Be the lower of four percent (4%) per annum or the rate provided under D.C. Official Code § 28-3302(c),

(b) Not begin to accrue until twelve (12) months have elapsed after the date of the compensation order; and

161.3 Interest on compensation awards shall be limited to simple interest.

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12229 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8771 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 161

7 DCMR § 162 ATTORNEY’S FEES

162.1 “Actual benefit secured” for the purposes of Section 2327 of the Act (D.C. Official Code § 1-623.27) means the total established amount of benefits secured by an attorney in connection with a hearing or court proceeding through the date of the compensation order only and shall not include any amount offered in settlement prior to a hearing or future benefits.

162.2 Attorney’s fees awarded under Section 2327 of the Act shall be computed at sixty percent (60%) of the most current United States Attorney’s Office Attorney’s Fees Matrix. In no event shall the attorney’s fees exceed twenty percent (20%) of the actual benefits secured as of the issuance date of the compensation order.

162.3 Attorney’s fees under Section 2327 of the Act shall not be awarded for prosecution of claims for permanent disability filed pursuant to Section 2306a of the Act.

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12229 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8771 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017); as amended by Final Rulemaking published at 66 DCR 4246 (April 5, 2019); as amended by Final Rulemaking published at 67 DCR 7481 (June 12, 2020). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 162

7 DCMR § 163 ADMINISTRATIVE AND JUDICIAL REVIEW

163.1 The provisions of 7 DCMR §§ 250 to 271 concerning administrative appeals to the Compensation Review Board (sometimes referred to in these regulations as the Board) established pursuant to the Directive of the Director of the Department of Employment Services (Director), Administrative Policy Issuance No. 05-01 (February 5, 2005), are incorporated herein by reference as fully as if stated and set forth in their entirety in this section.

163.2 Any party adversely affected or aggrieved by a compensation order or final decision issued by the OHA or OAH with respect to a claim for workers’ compensation benefits pursuant to Title XXIII of the District of Columbia Government Comprehensive Merit Personnel Act of 1978, effective March 3, 1979 (D.C. Official Code §§ 1-623.1 et seq. (2014 Repl. & 2016 Supp.)) may appeal said compensation order to the Board by filing an Application for Review with the Board within thirty (30) calendar days from the date shown on the certificate of service of the compensation order or final decision in accordance with and pursuant to the provisions of 7 DCMR § 258.

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12229 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8771 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 163

7 DCMR § 199 Definitions

199.1 The definitions set forth in Section 2301 of Title 23 (Workers’ Compensation) of the District of Columbia Government Comprehensive Merit Personnel Act of 1978, effective March 3, 1979 (D.C. Law 2-139; D.C. Official Code §§ 1-623.01 et seq. (2016 Repl. & 2019 Supp.)) shall apply to this chapter. In addition, for purposes of this Chapter, the following definitions shall apply and have the meanings ascribed:

The Act – the District of Columbia Comprehensive Merit Personnel Act of 1978, effective March 3, 1979 (D.C. Law 2-139; D.C. Official Code §§ 1-623.01 et seq. (2016 Repl. & 2019 Supp.)), as amended and as it may be hereafter amended.

Administrative Law Judge or ALJ – a hearing officer of the Office of Hearings and Adjudication in the Administrative Hearings Division of the Department of Employment Services or Administrative Law Judge in the Office of Administrative Hearings.

Aggravated injury – the exacerbation, acceleration, or worsening of a pre-existing disability or condition caused by a discrete event or occurrence and resulting in substantially greater disability or death.

Alive and well check – an inquiry by the Program to confirm that a claimant who is receiving benefits still meets the eligibility requirements of the Program.

Award of Compensation – a Program determination or Compensation Order issued pursuant to Section 2324 of the Act (D.C. Official Code § 1-623.24) and shall not include calculations set forth in a Notice of Benefits or adjustments to benefits made pursuant § 145 of this chapter.

Beneficiary – an individual who is entitled to receive death benefits under the Act.

Claim – an assertion properly filed and otherwise made in accordance with the provisions of this chapter that an individual is entitled to compensation benefits under the Act.

Claim file – all program documents, materials, and information, written and electronic, pertaining to a claim, excluding that which is privileged or confidential under District of Columbia law.

Claimant – an individual who receives or claims benefits under the Act (D.C. Official Code §§ 1-623.01 et seq.).

Claimant’s Representative – means an individual or law firm properly authorized by a claimant of this Chapter, in writing, to act for the claimant in connection with a claim under the Act or this chapter.

Controversion – means to dispute, challenge or deny the validity of a claim for Continuation of Pay.

Disability – means the incapacity, because of an employment injury, to earn the wages the employee was receiving at the time of injury. It may be partial or total.

Earnings – for the purposes of § 138 of this chapter, any cash, wages, or salary received from self-employment or from any other employment aside from the employment in which the worker was injured. It also includes commissions, bonuses, and cash value of all payments and benefits received in any form other than cash. Commissions and bonuses earned before disability but received during the time the employee is receiving workers’ compensation benefits do not constitute earnings that must be reported.

Eligibility Determination (ED) – a decision concerning, or that results in, the termination or modification of a claimant’s existing Public Sector Workers’ Compensation benefits that is brought about as a result of a change to the claimant’s condition.

Employee – means

(a) A civil officer or employee in any branch of the District of Columbia government, including an officer or employee of an instrumentality wholly owned by the District of Columbia government; or of a subordinate; or independent agency of the District of Columbia government;

(b) An individual rendering personal service to the District of Columbia government similar to the service of a civil officer or employee of the District of Columbia, without pay or for nominal pay, when a statute authorizes the acceptance or use of the service or authorizes payment of travel or other expenses of the individual, but does not include a member of the Metropolitan Police Department or the Fire and Emergency Medical Services Department who has retired or is eligible for retirement pursuant to D.C. Official Code §§ 5-707 through 5-730 (2012 Repl. & 2019 Supp.). The phrase “personal service to the District of Columbia government” as used for the definition of employee means working directly for a District government agency or instrumentality, having been hired directly by the agency or instrumentality; it does not mean working for a private organization or company that is providing services to the District government or its instrumentalities; or

(c) An individual selected pursuant to federal law and serving as a petit or grand juror and who is otherwise an employee for the purposes of this Chapter as defined by paragraphs (a) and (b) above.

Employee’s Representative – means an individual or law firm properly authorized by an employee of this chapter, in writing, to act for the employee in connection with a request for continuation of pay under the Act or this chapter.

Employing agency – the agency or instrumentality of the District of Columbia government which employs or employed an individual who is defined as an employee by the Act.

Good cause – omissions caused by “excusable” neglect or circumstances beyond the control of the proponent. Inadvertence, ignorance or mistakes construing law, rules and regulations do not constitute “excusable” neglect.

Healthcare provider – means any person or organization who or that renders medical services, appliances or supplies directly to claimants or employees and is licensed to practice or operate in the jurisdiction where care is provided.

Healthcare organization – an organization comprised of allied health professionals, as defined under Section 2301 of the Act (D.C. Official Code § 1-623.01).

Immediate supervisor – the District government officer or employee having responsibility for the supervision, direction, or control of the claimant, or one acting on his or her behalf in such capacity.

Indemnity – See Wage-loss Compensation.

Initial Determination (ID) – a decision regarding initial eligibility for benefits under the Act, including decisions to accept or deny new claims, pursuant to this Chapter.

Judicial Entity – any court or administrative group that issues a final decision that results in a complete and final disposition of a case.

Latent disability – a condition, disease or disability that arises out of an injury caused by the employee’s work environment, over a period longer than one workday or shift and may result from systemic infection, repeated physical stress or strain, exposure to toxins, poisons, fumes or other continuing conditions of the work environment.

Marriage – both civil marriage, which is represented by a marriage license, and common-law marriage, which must be proved by a preponderance of the evidence based on the law of the applicable jurisdiction.

Maximum Medical Improvement (MMI) – a point in time in the recovery process after an injury when:

further formal medical or surgical intervention cannot be expected to improve the underlying impairment;

recovery has reached the stage where symptoms can be expected to remain stable with the passage of time, or can be managed with palliative measures that do not alter the underlying impairment substantially; or

a claimant declines medical or surgical intervention that would otherwise improve the underlying impairment.

Mayor – the Mayor of the District of Columbia or a person designated to perform his or her functions under the Act.

Medical opinion – a statement from a physician, as defined in Section 2301 of the Act (D.C. Official Code § 1-623.01) that reflects judgments about the nature and severity of impairment, including symptoms, diagnosis and prognosis, physical or mental restrictions, and what the employee or claimant is capable of doing despite his or her impairments.

Notice of Benefits – a notice provided to a claimant that sets forth the Program’s calculation of a claimant’s benefits as a result of an initial award or subsequent change in benefits.

Office of Administrative Hearings (OAH) – the office where Administrative Law Judges adjudicate public sector workers’ compensation claims under Sections 2323(a-2)(4), 2324(b)(1), and (d)(2) of the Act (D.C. Official Code §§ 1-623.23(a-2)(4), 1-623.24(b)(1) and (d)(2)), pursuant to jurisdiction under D.C. Official Code § 2-1831.03(b)(1) (2016 Repl.), Section 2306a of the Act, and rules set forth in this chapter.

Office of Hearings and Adjudication (OHA) – the office in the Administrative Hearings Division of the Department of Employment Services where Administrative Law Judges adjudicate workers’ compensation claims, including public sector workers’ compensation claims under Sections 2323(a-2)(4), 2324(b)(1), and (d)(2) of the Act (D.C. Official Code §§ 1-623.23 (a-2)(f), 1-623.24(b)(1) and (d)(2)), and rules set forth in this Chapter.

Office of Risk Management (ORM) – the agency within the Government of the District of Columbia that is responsible for the District of Columbia’s Public Sector Workers’ Compensation Program (PSWCP).

Panel physician – means a physician approved by the Program pursuant to §§ 124 and 125 of this chapter to provide medical treatment to persons covered by the Act.

Pay rate for compensation purposes – means the employee's pay, as determined under Section 2314 of the Act, at the time of injury, the time disability begins, or the time compensable disability recurs if the recurrence begins more than six months after the injured employee resumes regular full-time employment with the District of Columbia government, whichever is greater, except as otherwise determined under Section 2313 of the Act (D.C. Official Code § 1-623.13) with respect to any period. Consideration of additional remuneration in kind for services shall be limited to those expressly authorized under Section 2314(e) of the Act (D.C. Official Code § 1-623.14(e)).

Permanent disability compensation – schedule award compensation payable when a qualified physician has determined that a claimant has reached maximum medical improvement and has full or partial loss of use of a body part or disfigurement pursuant to Section 2307 of the Act (D.C. Official Code 1-623.07) and § 140 of this chapter.

Permanent total disability payment (PTD) – schedule award and wage-loss compensation payable to a completely disabled claimant, when a qualified physician has determined that a claimant has reached maximum medical improvement and is unable to work on a permanent basis. PTD has been repealed since February 26, 2015. However, claimants who were awarded PTD prior to the repeal may continue to receive PTD benefits.

Program – the Public Sector Workers’ Compensation Program of the Office of Risk Management, including a third party administrator thereof.

Provider agreement – a working agreement developed by the Program in accordance with Section 2302b of the Act (D.C. Official Code § 1-623.02b) with a healthcare provider or other public or private organization comprised of healthcare providers to furnish medical care or services (including transport incident to such care or services) to an employee. Disputes regarding fees or the necessity, character or sufficiency of services pursuant to such agreements shall be resolved in accordance with Section 2323 of the Act (D.C. Official Code § 1-623.23) and § 156.6 and 156.7 of this chapter.

Qualified health professional – means a physician, as that term is defined by section 2301 of the Act (D.C. Official Code § 1-623.01) and includes a surgeon, podiatrist, dentist, clinical psychologist, optometrist, orthopedist, neurologist, psychiatrist, chiropractor, or osteopath practicing within the scope of his or her practice as defined by state law. The term includes a chiropractor only to the extent that reimbursable services are limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist and subject to guidelines established by the Program. For purposes of initial treatment or emergency care, or with respect to of a managed care organization, as that term is defined by Section 2301 of the Act (D.C. Official Code § 1-623.01), the term also includes physician assistants and nurse practitioners who are authorized by the jurisdiction where they practice and who are performing within the scope their practice as defined by said jurisdiction.

Recurrence of disability – means a disability that reoccurs within one (1) year after the date wage-loss compensation terminates or, if such termination is appealed, within one (1) year after the date of the final order issued by a judicial entity, caused by a spontaneous change in a medical condition which had resulted from a previous compensable injury or illness without an intervening injury or new exposure to the work environment that caused the illness.

Recurrence of medical condition – means a documented need for further medical treatment after release from treatment for the accepted condition or injury when there is no accompanying work stoppage. Continuous treatment for the original condition or injury is not considered a “need for further medical treatment after release from treatment,” nor is an examination without treatment.

Traumatic injury – means a condition of the body caused by a specific event or incident, or series of events or incidents, within a single workday or shift. Such condition must be caused by external force, including physical stress or strain, which is identifiable as to time and place of occurrence and member or function of the body affected.

Temporary partial disability payment (TPD) – wage-loss compensation payable to a claimant, who has a wage-earning capacity and has not reached maximum medical improvement, calculated pursuant to Section 2306 of the Act (D.C. Official Code § 1-623.06) and § 130 of this chapter.

Temporary total disability payment (TTD) – wage-loss compensation payable to a claimant, who has a complete loss of wage earning capacity and has not reached maximum medical improvement, calculated pursuant to Section 2305 of the Act (D.C. Official Code § 1-623.05) and § 129 of this chapter.

Treating physician – the physician, as defined in Section 2301 of the Act (D.C. Official Code § 1-623.01), who provided the greatest amount of treatment and who had the most quantitative and qualitative interaction with the employee or claimant.

Wage-loss compensation – the money allowance paid to a claimant by the Program to compensate for the wage-loss experienced by the claimant as a result of a disability directly arising out of an injury sustained while in the performance of his or her duty, calculated pursuant to the provisions of this chapter.

Working agreement – means a provider agreement or other agreement developed by the Program in accordance with Section 2302b of the Act (D.C. Official Code § 1-623.02b) with:

(a) a utilization review organization or individual certified to perform such reviews, as specified in Section 2323 of the Act (D.C. Official Code § 1-623.23);

(b) a physician or an organization comprised of physicians, including an organization with a proprietary panel of physicians affiliated exclusively with such organization, who conduct Additional Medical Examinations, as described in § 136 of this chapter;

(d) a physician or other public or private organization to facilitate the functions of the Program. The fees and other conditions contained in such agreements shall be approved by the Chief Risk Officer. Except in the case of a provider agreement, disputes arising under such agreements shall be resolved by the Superior Court for the District of Columbia, or as otherwise provided by law.

History

SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12229 (December 24, 2010); repealed and replaced by Final Rulemaking published at 59 DCR 8766, 8771 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017); as amended by Final Rulemaking published at 66 DCR 4246 (April 5, 2019); as amended by Final Rulemaking published at 67 DCR 7481 (June 12, 2020). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 199

7-2 PRIVATE SECTOR WORKERS' COMPENSATION PROGRAM

7 DCMR § 200 GENERAL PROVISIONS

200.1 The provisions of this chapter are promulgated to implement the District of Columbia Workers' Compensation Act of 1979, as amended, (D.C. Law 3-77, effective July 1, 1980; §36-301 et seq. D.C. Code, 1981 ed.).

200.2 The Mayor is authorized under §3(a) of the Act ((§ 36-302(a), D.C. Code, 1981 ed.), to promulgate rules and regulations as may be necessary to administer the Act.

200.3 The Director, under Mayor's Order No. 82-126, effective June 24, 1982) is delegated the authority to administer the Act.

200.4 The rights of interested parties under the Act shall not be affected by any action or inaction of the Mayor or his or her agents except by issuance of a compensation or other order under the Act and §225 of this chapter.

7 DCMR § 201 APPLICABILITY

201.1 The Act is applicable to injuries which occur on or after July 26, 1982 to employees of employers whose employment is principally localized in the District of Columbia in accordance with §4(a) of the Act (§36-303(a), D.C. Code, 1981 ed.).

201.2 The amendment makes the Act applicable to injuries and deaths which occur in the District of Columbia on or after March 6, 1991 to employees who perform work for the employer, at the time of the injury or death, while located in the District of Columbia.

201.3 An employer shall be liable for compensation under the Act regardless of fault as to the cause of injury or death in accordance with §4(b) of the Act [§36-303(b), D.C. Code, 1981 ed.].

201.4 An employer who subcontracts with another is liable for compensation to employees of the subcontractor unless the subcontractor secures payment in accordance with §4(c) of the Act [§36-303(c), D.C. Code, 1981 ed.].

201.5 The Act provides the exclusive remedy for covered injuries if an employer has secured payment of compensation as provided in §§4 and 5 of the Act (§36-303 and §36-304, D.C. Code, 1981 ed.)

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 3213 (June 3, 1994).

7 DCMR § 202 FORMS

202.1 Any notices, claims, reports, requests, applications, or certificates that the Act or this chapter requires to be made shall be on forms prescribed by the Office or in a manner prescribed by the Office; except that, the Office may excuse the failure to use a prescribed form for good cause shown.

202.2 All costs for prescribed forms shall be incurred by the carrier and the employer; except that, the Office shall incure the cost of the first set of prescribed forms which will be disseminated to employers, employees, and carriers.

202.3 All prescribed forms shall be obtainable from the carrier or the employer upon request by the employee or the employee's representative.

202.4 The Office may permit the use of substitute forms after determining, upon written request, that the substitute forms will contain the same information and service the same purpose as a prescribed form.

7 DCMR § 203 EMPLOYER'S REPORT OF INJURY

203.1 All employers shall give a written report of every employee's injury or death to the Office within ten (10) working days of the injury or death within ten (10) working days from the date that the employer has knowledge of an occupational disease or illness in respect of such injury.

203.2 Under §33(e) of the Act [§36-332(e), D.C. Code, 1981 ed.], failure to provide a Report of Injury shall subject an employer to a civil penalty up to one thousand dollars ($1,000) for each failure.

203.3 Under §33(f) of the Act [§36-332(f), D.C. Code, 1981 ed.], the time limit for filing a claim shall not begin until a Report of Injury is filed.

203.4 The Report of Injury shall contain the following:

(a) The name, address, phone number and business of the employer;

(b) The name, address, phone number and occupation of the employee;

(d) The nature of the injury;

(e) The cause of the injury;

(f) Whether the injury is expected to result in lost time or no lost time;

(g) The name of any known witness and other relevant circumstances;

(h) The name and address of the employer's insurer; and

(i) Any other information that the Office may require.

203.5 The Employer's Report of Injury may be hand delivered or mailed to the Office within the prescribed ten (10) working days.

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 3213 (June 3, 1994).

7 DCMR § 204 EMPLOYER RECORDS OF INJURIES

204.1 Under §32 of the Act [§36-331, D.C. Code, 1981 ed.], each employer shall maintain a record of all injuries to its employees.

204.2 Employer records of injuries shall be available for inspection by a representative of the Office during an employer's regular business hours at the employer's place of business.

204.3 Employer records of injuries shall be adequate if they contain the information set forth in §203.4 of this Chapter.

204.4 No later than December 1st of each year, each insurer and self insured employer shall provide to the Office, a report from the previous fiscal year that shall include the following:

(a) the total number of cases;

(b) the total number of lost time cases;

(d) the number of cases where no compensation was paid;

(e) the number of temporary and permanent partial cases where more than 500 weeks of benefits are paid;

(f) the number of permanent partial disability scheduled awards cases;

(g) the number of permanent partial disability nonscheduled awards cases;

(h) the number of permanent total disability cases;

(i) the number of temporary total disability cases;

(j) the number of cases in which claimant was represented by an attorney, if known.

(k) total attorney fees paid;

(l) the number of cases controverted;

(m) any other information that the Office may require.

History

SOURCE: Final Rulemaking published at 47 DCR 6454 (August 11, 2000).

7 DCMR § 205 NOTICE OF RIGHTS AND OBLIGATIONS/ASSISTANCE

205.1 The employer shall send to the employee, or to the employee's next of kin, by certified mail, return receipt requested, a statement of the employee's rights and obligations pursuant to the Act, including the right to file a claim for compensation within one year from the date of the injury or death.

205.2 The Office shall, upon request, provide employees and employers subject to the Act with information and assistance relating to the Act's coverage and compensation and the procedure for obtaining the compensation including assistance in processing a claim through the Office.

205.3 The Office shall, upon request, provide to a claimants receiving compensation or eligible to receive compensation, information about and assistance in obtaining medical and vocational rehabilitation services.

205.4 Employers shall conspicuously post for employees information regarding the Act and their insurance coverage thereunder.

205.5 Such posting shall contain, but is not limited to, the following information:

(a) That an injured employee may be entitled to benefits for lost wages and payment of medical expenses for a work injury;

(b) That the injured employee must notify the employer of any injury;

(d) The current address and telephone number of the Office.

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 3213 (June 3, 1994); as amended by Final Rulemaking published at 47 DCR 6454 (August 11, 2000).

7 DCMR § 206 EMPLOYEE'S NOTICE OF INJURY

206.1 Under §14 of the Act [§36-313, D.C. Code, 1981 ed.], written Notice of Injury shall be given to the Office and the employer by an employee or beneficiary within thirty (30) days of the injury or within thirty (30) days of awareness of the relationship between the employment and the injury.

206.2 Notice of Injury shall be made on a form prescribed by the Office and shall contain the following:

(a) The name and address of the employer and of the employee;

(b) The date, approximate time, and place of the injury;

(d) The cause of the injury;

(e) The name of any known witnesses and other relevant circumstances;

(f) The signature of the employee, the authorized representative, or the beneficiary;

(g) Whether medical treatment has been obtained and from whom; and

(h) Any other information the Office deems necessary.

206.3 Notice of Injury may be either hand delivered or mailed to the Office and to the employer.

206.4 Notice to an employer who is a partnership shall be sufficient if given to any general partner or agent of the partnership.

206.5 Notice to an employer who is a corporation shall be sufficient if given to any agent or officer of the corporation authorized to receive legal process or to any person in charge of the business of the corporation in the place where the injury occurred.

206.6 The failure of an employee or beneficiary to give timely Notice of Injury shall not bar a claim for compensation if the following occurs:

(a) The employer, an agent in charge of the business in the place where the injury occurred, or the carrier knew of the injury and its relationship to the employment and the Office determines that no prejudice has resulted from the failure; or

(b) The Office excuses the failure upon determining that a satisfactory reason exists why timely Notice of Injury was not given; or

(c) Objection to the failure is not raised at any time during the first hearing on the claim- as defined in §299 of this chapter.

206.7 In determining when an employee or beneficiary became aware or should have been aware of the relationship between the injury and the employment, the Office shall consider all the facts and circumstances of the individual case.

206.8 In determining when an employer or carrier had knowledge of an injury and its relationship to the employment, the Office shall consider, among other factors, the following:

(a) The place where the injury occurred;

(b) The time the injury occurred;

(d) Whether the employer provided medical treatment; and

(e) The time when the injury was reported.

206.9 In determining whether the employer or carrier has been prejudiced by the failure of the employee or beneficiary to give Notice of Injury, the Office shall consider, among other factors, the following:

(a) The length of time between the injury and the filing of the claim;

(b) Whether the employer was able to investigate the injury or illness at the time it occurred;

(d) Whether the delay prevented the employer from providing medical treatment.

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 3213 (June 3, 1994).

7 DCMR § 207 CLAIMS APPLICATION

207.1 In accordance with §15 of the Act [§36-314, D.C. Code, 1981 ed.], all claims shall be made by injured employees or their beneficiaries in writing within one (1) year of the injury or death, except as hereafter provided.

207.2 A claim may be made within one (1) year after the date of the last payment if voluntary payments have been made.

207.3 A claim may be made within one (1) year after the employee or beneficiary is aware of the relationship between the injury or death and the employment.

207.4 A claim may be made within one (1) year from the end of a suit to recover damages where recovery is denied because the Act provides the exclusive remedy for the injury.

207.5 In accordance with §15(b) of the Act [§36-314(b), D.C. Code, 1981 ed.], the failure of an employee or beneficiary to file a claim within one (1) year after the injury or death shall not bar a claim unless objection to the failure is made at any time during the formal hearing on the claim as defined in §299 of this chapter.

207.6 In accordance with §15(c) of the Act [§36-314(c), D.C. Code, 1981 ed.], a claim may be made on behalf of a person who is mentally incompetent within one (1) year from the date of appointment of a guardian or authorized representative.

207.7 A claim may be made by a minor within one (1) year from the date of majority or on behalf of a minor by his or her guardian or authorized representative within one (1) year from appointment.

207.8 In accordance with §33(f) of the Act [§36-332(f), D.C. Code, 1981 ed.] a claim may be made within one (1) year from the date the employer's Report of Injury is filed with the Office.

207.9 Upon receipt of a Claims Application, the Office shall issue a written notice to all interested parties in accordance with §21(b) of the Act [§36-320(b), D.C. Code, 1981 ed.].

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 3213 (June 3, 1994).

7 DCMR § 208 OFFICIAL RECORD

208.1 The Office shall maintain an official record of each claim.

208.2 The official record shall include all correspondence, all medical records and all investigative reports relating to the claim.

208.3 The official record shall contain all notices required to be filed by the Act or this chapter.

208.4 Upon request, interested parties shall be permitted to examine at the Office the official record of the claim to which they are an interested party.

208.5 A written record shall be maintained by the Office of all requests to examine the official record of a claim.

208.6 Interested parties may request copies of any document in the official record. The Office shall provide copies of the documents, and the cost shall be borne by the requestor.

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 3213 (June 3, 1994).

7 DCMR § 209 VOLUNTARY PAYMENT OF COMPENSATION

209.1 Under §16(a) of the Act [§36-315(a), D.C. Code, 1981 ed.], compensation shall be paid directly to an employee or beneficiary by the insurer on behalf of the employer without an award unless the employer controverts in writing, on a form prescribed by the Office, the liability to pay under §16(d) of the Act [§36-315(d), D.C. Code, 1981 ed.] and §210 of this chapter.

209.2 The first voluntary payment of compensation, including accrued benefits, if any, shall be made within fourteen (14) working days after the employer has knowledge of the injury.

209.3 Compensation shall be paid promptly every two (2) weeks thereafter.

209.4 The insurer shall file Memo of Payment with the Office upon making the initial voluntary payment.

209.5 The insurer shall file Notice of Controversion with the Office upon stopping payment for any reason no later than three (3) working days after the payments are suspended.

209.6 The Notice of Controversion shall contain the information required by §210.3 of this chapter.

209.7 If final payment of compensation is the reason for stopping payment, Notice of Final Payment shall be filed by the insurer with the Office within sixteen (16) working days, in lieu of Notice of Controversion.

209.8 The Notice of Final Payment shall contain the following:

(a) The name of the employee and of the employer;

(b) The date of the injury;

(d) The person to whom payments were made;

(e) The date of the first payment;

(f) The date to which the final payment has been made; and

(g) Any other information required by the Office.

209.9 To the extent possible, the Office shall monitor voluntary payments to ensure that the amount paid is proper.

209.10 The Office may, on its own initiative and shall upon written request of an injured employee, determine if a ten percent (10%) penalty for late payment under §16(e) of the Act [§36-315(e), D.C. Code, 1981 ed.] shall be imposed or if nonpayment shall be excused.

209.11 Interest on accrued benefits shall be calculated at the same rate as that utilized by the Superior Court of the District of Columbia for civil judgments.

209.12 If an employer delays, in bad faith, the payment of any installment of compensation, the employer shall pay as an additional penalty, the actual weekly wage of the employee for the period that the employee is eligible for benefits. The additional penalty shall be payable for the duration of the delay.

209.13 Pursuant to Section 6(b) of the Act, (D.C. Code §36-305(b) disability benefits for any 1 injury causing temporary or permanent partial disability shall be limited to 500 weeks. However, within 60 days of the expiration of the 500 week duration, an employee may petition the Mayor for an extension of up to 167 weeks.

209.14 Upon receipt of a petition for an extension, the Office shall arrange for an independent medical examination as set forth in subsections 212.15 and 212.16 of this chapter.

209.15 Upon receipt of the medical report, the Office shall notify the parties if an extension is to be granted and if so, the number of weeks.

209.16 The cost of independent medical examinations conducted pursuant to this section shall be paid by the insurer.

209.17 Pursuant to Section 9(c)(22) of the Act (D.C. Code §36-308 (3)(V)) for injuries occurring on or after April 16, 1999, the periods of compensation set forth in Section 9(c)(1) thru (19) of the Act (D.C. Code §36-308(3) (A) thru (S)) shall be as follows:

(a) Arm lost, 234 weeks compensation;

(b) Leg lost, 216 weeks compensation;

(d) Foot lost, 154 weeks compensation;

(e) Eye lost, 120 weeks compensation;

(f) Thumb lost, 57 weeks compensation;

(g) First finger lost, 35 weeks compensation;

(h) Great toe lost, 29 weeks compensation;

(i) Second finger lost, 23 weeks compensation;

(j) Third finger lost, 19 weeks compensation;

(k) Toe other than great toe lost, 12 weeks compensation;

(l) Fourth finger lost, 12 weeks compensation;

(m) Compensation for loss of hearing of 1 ear 39 weeks compensation. Compensation for loss of hearing of both ears 150 weeks, provided that the Mayor may establish a waiting period, not to exceed 6 months, during which an employee may not file a claim for loss of hearing resulting from non- traumatic causes in the occupational environment until the employee has been away from such environment for such period, and provided further, that nothing in this sub-paragraph shall limit an employee's right to file a claim for temporary partial disability pursuant to section 9(e)of the Act (D.C. Code §36-308(5);

(n) Compensation for loss of more than 1 phalange of a digit shall be the same as for loss of the entire digit. Compensation for loss of the 1st phalange shall be one half of the compensation for loss of the entire digit;

(o) Compensation for an arm or a leg, if amputated at or above the elbow or the knee, shall be the same as for a loss of the arm or leg; but if amputated between the elbow and the wrist or the knee and the ankle, shall be the same as for loss of a hand or foot;

(p) Compensation for loss of binocular vision or for 80% or more of the vision of an eye shall be the same as for loss of the eye;

(q) Compensation for loss of 2 or more digits, or 1 or more phalanges of 2 or more digits, of a hand or foot, may be proportioned to the loss of use of the hand or foot occasioned thereby, but shall not exceed the compensation for loss of a hand or foot;

(r) Compensation for permanent total loss of use of a member shall be the same as for loss of the member;

(s) Compensation for permanent partial loss or loss of use of a member may be for proportionate loss or loss of use of the member. Benefits for partial loss of vision in 1 or both eyes, or partial loss of hearing in 1 or both ears shall be for a period proportionate to the period benefits are payable for total bilateral loss of vision or total binaural loss of hearing as such partial loss bears to total loss.

209.18 [Reserved for professional athlete work life expectancy tables]

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 3213 (June 3, 1994); as amended by Final Rulemaking published at 47 DCR 6454 (August 11, 2000).

7 DCMR § 210 CONTROVERTED CLAIMS

210.1 Under §16(d) of the Act [§36-315(d), D.C. Code, 1981 ed.], an employer may controvert liability to pay benefits in accordance with §§9 and 10 of the Act [§36-308 and 36-309, D.C. Code, 1981 ed.].

210.2 If the right to compensation is disputed, an employer shall file Notice of Controversion with the Office on or before the fourteenth (14th) working day after the employer has knowledge of the injury and its relationship to the employment.

210.3 The Notice of Controversion shall contain the following:

(a) The name of the employee;

(b) The name of the employer;

(d) A statement that the right to compensation is controverted;

(e) The grounds upon which the right to compensation is controverted;

(f) The name and address of the employer's representative and insurance carrier; and

(g) Any other information required by the Office.

210.4 At the time the employer files a Notice of Controversion with the Office, a copy shall be sent by certified mail, return receipt requested to the employee at the last known place of residence and to the employee's representative, if applicable.

210.5 Where delay of payment for injuries is shown to be in bad faith pursuant to §29(b) of the Act, the provisions of §209.12 of the Regulations shall be applicable.

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 3213 (June 3, 1994).

7 DCMR § 211 INVESTIGATION OF CLAIMS

211.1 Under §21(c) of the Act [§36-320(c), D.C. Code, 1981 ed.], the Office shall conduct the investigation of claims as is necessary to determine all questions concerning a claim including, but not limited to, the following:

(a) The fact and degree of disability;

(b) Whether the claimant is entitled to compensation;

(d) Whether adequate vocational rehabilitation has been provided;

(e) The necessity, character, and sufficiency of any medical aid furnished;

(f) The amount of compensation due an injured employee; and

(g) Whether a change in condition has occurred sufficient to justify a review of a previously rendered compensation order.

211.2 The Office may utilize as part of its investigation non-adjudicative fact finding procedures including informal conferences under §219 of this chapter to narrow issues, encourage voluntary payment of claims, and encourage agreement between interested parties.

7 DCMR § 212 MEDICAL SERVICES AND SUPPLIES

212.1 Under §8(a) of the Act [§36-307(a), D.C. Code 1981], the employer of an injured employee shall furnish medical services and supplies for that period of time as the nature of the injury or the process of recovery may require.

212.2 Under §8(b)(3) of the Act [§36-307(b)(3),D.C. Code, 1991 Supplement], an injured employee has the right to choose any attending or treating physician on or after March 6, 1991 subject to the provisions of §212.13 of this Chapter.

212.3 If there is need for immediate treatment and, due to the nature of an injury, the injured employee is unable to select a physician, the employer may select a physician to provide initial treatment to the employee. Provided, however, that for purposes of §212.12 of this section, a physician selected by the employer shall not be considered to have been selected by the employee.

212.4 The physician shall file an initial medical report with the Office and the employer containing a diagnosis and prognosis within twenty (20) working days of treatment in accordance with §8(d) of the Act (§36-307(d), D.C. Code, 1981 ed.]

212.5 Any medical care provider who continues to treat an injured employee shall, at no cost, provide periodic progress reports, treatment records, and bills upon request to the Office, the injured employee, the employer, or the insurer, or their representatives.

212.6 Any medical care provider who has properly submitted a bill who is not paid in a timely fashion can make a complaint to the Office.

212.7 Upon receiving a complaint regarding payment delinquencies, the Office shall investigate the complaint and attempt to resolve it informally.

212.8 In no event shall a medical care provider attempt to collect a disputed bill for medical services provided in connection with a compensable claim under the Act from the claimant or beneficiary.

212.9 All medical providers shall include in each medical report and bill for services rendered under the Act, the code as published by the American Medical Association in the most current edition of the Physicians Current Procedural Terminology, commonly known as CPT Codes, for the detailing of the billing of all medical procedures and the codes established by the most recent edition of the International Classification of Diagnosis, as published by the U.S. Department of Health and Human Services, commonly known as the ICD Code, for diagnosis.

212.10 To the maximum extent feasible, any hearing regarding a disputed medical service or care or fee charged shall be consolidated with the hearing regarding other issues in dispute on a specific claim.

212.11 The insurer may require a medical report from a medical care provider to substantiate payment of bills. The report may be submitted on a form prescribed by the Office or may be typewritten on the physician's letterhead, signed and dated by the attending physician.

212.12 Once a medical care provider is selected to provide treatment under the Act, an injured employee shall not change to another medical care provider or hospital without authorization of the insurer or the Office, except in an emergency. Notice of the provision of emergency care shall be provided to the insurer and the Office within a reasonable time after the care is rendered.

212.13 If the employee is not satisfied with medical care, a request for change may be made to the Office. The Office may order-a change where it is found to be in the best interest of the employee.

212.14 Medical care, services, and supplies provided on or after April 16, 1999 shall be billed by the provider at 113% of Medicare's reimbursement amounts.

212.15 Under §16(h) of the Act [§36-315(h), D.C. Code, 1981 ed.] and §21(f) of the Act [§36-320(f), D.C. Code, 1981 ed.], the Office may require an injured employee to submit to physical examinations at times and places reasonably convenient for the employee.

212.16 In determining convenience of place of examination, the Office shall consider the following:

(a) The distance to be traveled;

(b) The physical condition of the employee; and

212.17 The cost of physical examinations ordered by the Office shall be paid by the insurer unless a determination is made by the Office that the cost is appropriately charged to the Special Fund in accordance with § 231 of this chapter.

212.18 Mileage shall be assessed in accordance with the mileage rates set by the Superior Court of the District of Columbia.

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 3213 (June 3, 1994); as amended by Final Rulemaking published at 47 DCR 6454 (August 11, 2000).

7 DCMR § 213 RESERVED

History

SOURCE: Final Rulemaking published at 41 DCR 3213 (June 3, 1994).

7 DCMR § 214 INSURANCE COVERAGE

214.1 The provisions of this section set forth the policies and procedures which apply to the administration and enforcement of the coverage provisions of the Act.

214.2 Under §35 of the Act [§36-334, D.C. Code, 1981 ed.], all employers subject to the Act shall secure the payment of compensation for their employees.

214.3 The Office shall prescribe standardized forms to be utilized by employers and insurers.

214.4 Employers and insurers shall provide the Department with all information required to determine the availability of and the adequacy of insurance coverage.

214.5 Employers shall exercise their responsibility to secure the payment of compensation for their employees by maintaining insurance coverage; Provided, that an employer may apply for authorization to be a self-insurer as set forth in §217 of this Chapter.

214.6 The duty to maintain insurance coverage shall continue until such time as an employer actually qualifies as a self-insurer.

214.7 New employers shall obtain coverage prior to hiring any employee.

214.8 After an employer has made a bona fide application for coverage which has been accepted on behalf of a carrier, carriers shall share in coverage responsibility.

214.9 A bona fide application for coverage may be verbal or written.

214.10 Carrier responsibility for coverage shall extend until coverage is actually provided the employer.

214.11 Notice of coverage provided an employer shall be given to the Office by insurers.

214.12 Notice of termination shall be given to the Office by insurers.

214.13 Upon receipt of a valid termination notice from a carrier, the employer has the responsibility to apply for and obtain new coverage.

214.14 Agencies or carriers who refuse to provide coverage on a voluntary basis shall advise the employer concerning the availability of coverage under the existing Workers' Compensation Insurance Plan of the National Council on Compensation Insurance and provide the application form to the employer.

214.15 The Council shall provide the Office with the following information:

(a) A copy of the assignment letter;

(b) A copy of the letter relieving carrier of assignment;

(d) Any other information that the Office may require.

214.16 The Office shall assess a penalty of not less than $1,000 and not more than $10,000 for failure to maintain the insurance required by the Act.

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 3213 (June 3, 1994).

7 DCMR § 215 EVIDENCE OF COVERAGE

215.1 Carriers shall provide the Office with evidence of coverage by filing a completed Notice of Workers' Compensation Coverage as soon as possible after completion of arrangements to provide coverage, but no later than ten (10) working days after date of binder issued in the Mid-Atlantic Council region.

215.2 An additional period of time not to exceed thirty (30) working days may be granted to carriers filing a Notice of Coverage where a binder has been issued in another jurisdiction.

215.3 Coverage shall become effective by the date indicated on the notice, which is the date on which a carrier becomes legally bound as to a risk.

215.4 Notice shall be given in terms of coverage, not policy.

215.5 Notice shall be filed with the Office upon rewriting or renewal of coverage.

215.6 The reason for notice shall be correctly indicated on the notice. Notice shall be filed on the prescribed form and defect as to form or contents shall render filing invalid, except as to coverage.

215.7 Carriers desiring acknowledgement of filing of notice with the Office shall request return of receipt of certified mail from the U.S. Postal Service.

215.8 Agencies desiring a copy of notice shall be accommodated upon request.

215.9 Notice of ordinary coverage applicable to an employer who has two (2) or more establishments or job sites (Construction) in the District of Columbia shall be made on Supplemental Notice of Information form with respect to the parent company or home office, whether in or out of the District of Columbia, and shall be filed with the Office within sixty (60) days of coverage.

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 3213 (June 3, 1994).

7 DCMR § 216 TERMINATION OF COVERAGE

216.1 Termination of coverage shall be accomplished in the manner provided by §39(b) of the Act [§36-338(b), D.C. Code, 1981 ed.] and this section.

216.2 Carriers shall notify the Office whenever they intend to cease providing coverage to an employer on the Termination Notice.

216.3 Carriers shall file by certified mail, return receipt requested. The receipt shall identify the establishment whose coverage shall be subject to termination.

216.4 Carriers shall serve a copy of the Termination Notice upon the employer when termination is for one (1) of the following reasons:

(a) Request of carrier or agency;

(b) No employees; or

216.5 No termination shall take effect prior to thirty (30) days after the date of filing Termination Notice with the Office.

216.6 Notice of termination refers to coverage, not policies. Therefore, no notice shall be filed with the Office in the absence of a bona fide intent to terminate coverage.

216.7 Carriers, upon filing Termination Notice, shall retain the copy labeled "Reinstatement" in their file. If at a later date they reinstate coverage they shall file this Reinstatement Notice with the Office.

216.8 The reason for termination of coverage shall be indicated on the form as follows:

(a) The term "Change of Carrier" means the substitution of one (1) carrier for another at the option of an agent or insured;

(b) The term "Out of Business" means the definitive conclusion of the operation of an establishment, including the activities required to close down;

(d) The term "No Employees" means the discharge of all employees;

(e) The term "Non-Payment of Premium" means the absence of full payment of premium by covered employer; except that, the term does not apply to an employer no longer in business; and

(f) The term "Request of Carrier and/or Agency," means a termination which serves the purposes of a carrier or agency.

7 DCMR § 217 SELF-INSURANCE

217.1 An employer who desires to be a self-insurer may apply for authorization in accordance with this section and in the manner prescribed by the Office.

217.2 Under §35(a)(2) of the Act [§36-334(a)(2), D.C. Code, 1981 ed.], any employer who desires to be a self-insurer shall furnish satisfactory proof to the Office that he or she has met the following requirements:

(a) Secured or has sufficient financial resources to meet all obligations in regard to its potential liability under the Act;

(b) Obtained adequate excess or catastrophic loss insurance or has otherwise made adequate financial arrangements for the losses:

(c) Made adequate arrangements to provide promptly to its employees all necessary compensation and medical care required by the Act;

(d) Made a deposit of security (negotiable securities, surety bond or other financial bond) in the amount and form prescribed by the Office; and

(e) Agreed to carry out all requirements of the Act and this chapter.

217.3 An employer who applies for the status of self-insurer shall secure the insurance coverage required by the Act until such time as authorization is issued by the Office.

217.4 Application for self-insurance shall be made in a manner prescribed by the Office and shall contain at least the following information:

(a) A statement of the amount of the employer's payroll for the preceding twelve (12) month period;

(b) A statement of the average number of employees engaged in employment within the purview of the Act, or similar provisions of prior law, in the preceding twelve (12) month period;

(c) A statement of the number and kinds of injuries to employees resulting in disability of more than three (3) days' duration, or in death, during each of the preceding three (3) years;

(d) An itemized statement of the assets and liabilities of the employer;

(e) A statement describing the facilities maintained or the arrangements made for the medical and hospital care of injured employees;

(f) A statement describing the provisions and maximum amount of any excess or catastrophic insurance;

(g) Signature of the applicant over the typewritten name, and if the applicant is not an individual, signature of a duly authorized officer indicating official title;

(h) Sworn oath of the applicant and, where appropriate, the corporate seal of the applicant; and

(i) A statement pertaining to the proposed processing of claims. If claims are proposed to be processed "in house", a statement shall be submitted showing the qualifications of those individuals who will process claims. If a self-insured service organization is to be used, a profile of the organization shall be submitted showing its experience in the administration of claims in general and specifically under workers' compensation laws, both state and federal.

217.5 The application shall be filed with the Office at the time and place and in the manner prescribed by the Office.

217.6 In addition to the application requirements set forth in §217.4, the Office may require an applicant for self-insurance status to submit further financial or other information as it deems necessary.

217.7 In evaluating the ability of an employer to be a self-insurer, including the amount and form of any security to be deposited with the Office, the Office shall consider the following:

(a) The financial standing of the employer;

(b) The nature of the work in which the employer is engaged;

(d) The amount of the employer's payroll;

(e) The provisions for excess insurance against catastrophic loss; and

(f) Any other data submitted by the applicant or required by the Office.

217.8 Annually and at any other time as the Office may require or prescribe, each self-insurer shall submit each of the following reports:

(a) A sworn itemized statement of the self-insurer's assets and liabilities, or a balance sheet;

(b) A sworn statement showing by classifications the payroll of employees of the self-insurer who are engaged in employment within the purview of the Act or similar provisions of prior law; and

(c) A sworn statement covering the preceding twelve (12) month period, listing all death and injury cases which have occurred during the period, together with a report of the status of all outstanding claims.

217.9 Whenever it is deemed necesary, the Office may, after reasonable notice, inspect or examine the books of account, records, and other papers of a self-insurer at the self-insurer's place of business for the purpose of verifying any financial statement submitted to the Office by the self-insurer or verifying any other information furnished to the Office in any report required by the Act or this chapter.

217.10. Each self-insurer shall permit the Office or its duly authorized representative to make an inspection or examination as the Office shall require. In lieu of this requirement the Office may, in its discretion, accept the report of a certified public accountant.

217.11 Applicants for self-insurance, as a condition precedent to receiving authorization to be a self-insurer, shall give security for the payment of compensation and the discharge of all other obligations under the Act in the amount and form prescribed by the Office.

217.12 The amount of security required by the Office shall be the amount that the Office deems reasonable, necessary, and sufficient to secure performance by the applicant of all obligations imposed upon an employer by the Act. Additions to the amount of security may be required at any time in the discretion of the Office.

217.13 Only surety companies approved by the Treasurer of the District of Columbia may act as sureties on any security for obligations under the Act.

217.14 Applications for self-insurance shall, as a condition precedent to receiving authorization to be a self-insurer, execute and file an undertaking in a manner prescribed by the Office.

217.15 Applicants shall agree in the undertaking to do the following;

(a) To pay when due, as required by the Act, all compensation payable on account of injury or death of any of its employees injured within the purview of the Act;

(b) To furnish where necessary, medical, surgical, hospital and other attendance, treatment, care, and vocational rehabilitation as required by the Act;

(d) To authorize the Office to proceed against, sell or otherwise collect from the security if the employer fails to meet its obligations under the Act;

(e) To timely pay the appropriate share of the cost of administration of the Act; and

(f) To maintain excess insurance coverage or other catastrophic loss security as the Office shall prescribe.

217.16 No initial authorization as a self-insurer shall be granted for a period in excess of twelve (12) months and the expiration date thereof shall fall on the thirtieth (30th) day of September.

217.17 A self-insurer who has made continuing deposit of security as prescribed by the Office and who has filed the appropriate financial and other reports as required by the Office, shall be deemed to have reapplied for self-insurance for the following twelve (12) month period if the employer does not inform the Office to the contrary in writing on or before August 1, preceding the September 30th expiration date.

217.18 The Office may, for good cause shown, suspend or revoke the authorization of any self-insurer.

217.19 The occurrence of any one of the following events shall constitute good cause to suspend or revoke the authorization of a self-insurer:

(a) Failure by a self-insurer to comply with any provision or requirement of the Act or of this chapter or with any lawful order or communication of the Office;

(b) Failure or insolvency of the surety on the indemnity bond; or

217.20 A self-insurer who desires to terminate the status of a self-insurer and obtain a refund of the deposited security shall file with the Office a sworn statement indicating the following:

(a) All outstanding liabilities for compensation;

(b) All pending claims for compensation;

(d) Evidence of insurance coverage as required by the Act and §214 and §215 of this chapter.

217.21 The Office shall return the deposited security (or the balance thereof) to the employer only after all claims and liabilities have been adjudicated and paid or the Office determines that adequate arrangements for the payment have been made.

7 DCMR § 218 TRANSITIONAL COVERAGE

218.1 Employers who received authorization from the U.S. Department of Labor to act as self-insurers under similar provisions of prior law shall be deemed to be self-insurers under this Act without a new application for that status if the employer files with the Office on or before August 13, 1982, a sworn statement, attesting that the employer has sufficient financial resources or that the security previously deposited shall be available to satisfy claims and liabilities arising under this Act.

218.2 Status as a self-insurer based upon prior law shall be valid only until September 30, 1982. Applications for self-insurance status under this Act shall be filed with the Office on or before August 13, 1982.

218.3 Carriers who are authorized by both the Superintendent of Insurance for the District of Columbia, under §35-1505, D.C. Code, 1981 and the U.S. Department of Labor to insure the risk under similar provisions of prior law shall be authorized to provide coverage under the Act to employers between July 26, 1982 and July 1, 1983.

7 DCMR § 219 INFORMAL PROCEDURES

219.1 Informal procedures may be utilized by the Office to resolve in a manner acceptable to all interested parties any matter in dispute regarding a claim.

219.2 Informal procedures may include informal conferences or informal conferences with mediation services; provided, that participation by interested parties in these conferences shall be voluntary.

219.3 Prior to the informal conference, the parties shall file with the Office the following documents:

(a) The notice of injury and claim;

(b) The employer's report of injury;

(d) The notice of controversion, if any.

(e) medical records.

219.4 Failure to file the required documents, pursuant to §219.3, prior to convening the informal conference shall not prevent the interested parties from going forward with the conference.

219.5 A matter may be resolved through written communication, copies of which shall be maintained in the official record.

219.6 Informal proceedings may begin at anytime after notice of claim is served on the interested parties.

219.7 The Office shall, in the context of open discussion, utilize maximum efforts through conference, persuasion, and conciliation to eliminate any disputes and to reach a resolution acceptable to all interested parties.

219.8 Each controverted claim or medical benefits shall be investigated by the Office. The Office shall attempt to resolve disputes with respect to a claim in a manner designed to protect the rights of the interested parties at the earliest practicable date.

219.9 Informal conferences may be conducted by telephone.

219.10 To the extent practicable, informal conferences shall be held with all interested parties present or represented.

219.11 The Office, when investigating claims by telephone or with only one (1) interested party present, shall ensure that a complete written report is made of all matters discussed.

219.12 Informal conferences may be scheduled by the Office upon not less than ten (10) working days notice to all interested parties, unless the parties agree to meet at an earlier date.

219.13 Notice of informal conference may be given by telephone, but shall be confirmed in writing on a form prescribed by the Office which sets forth the date, time and place of the conference, and the matters to be discussed. For good cause shown, conferences may be rescheduled.

219.14 No stenographic record shall be made of any informal procedure and no witnesses shall be called.

219.15 Informal conferences shall be held at the Office unless otherwise designated.

219.16 Following an informal conference at which an agreement is reached, the Office shall, within fourteen (14) working days after the conclusion of the conference, prepare a Final Order which embodies the agreement.

219.17 If a claim is resolved by telephone discussion or by exchange of written correspondence, the parties shall be notified in the same manner and the Office shall prepare a Final Order setting forth the terms agreed upon.

219.18 If at the close of an informal conference, the parties have not reached an agreement on all of the disputed issues, the Office shall evaluate all the available information and prepare a Memorandum of Informal Conference containing recommendations.

219.19 Copies of the Memorandum of Informal Conference shall be sent by certified mail to the parties and their representatives.

219.20 The parties shall have fourteen (14) working days after receipt of the Memorandum of Informal Conference within which to signify in writing whether they agree or disagree with the terms of the memorandum.

219.21 If the parties agree with the Memorandum of Informal Conference, the parties shall prepare, and submit to the Office within fourteen (14) working days, a joint statement signed by the parties indicating their acceptance of the terms of the memorandum and their intent to be bound by the terms. The Office shall issue a Final Order consistent with the provisions of §219.16 of this chapter.

219.22 If an application for formal hearing is not filed in accordance with §220 of the chapter within thirty-four (34) working days after the issuance of the Memorandum of Informal Conference, said Memorandum shall become final. Thereafter, the Office shall issue a Final Order which shall be sent by certified mail to the parties and their representatives, and the Hearings and Adjudication Section. An aggrieved party may request a review by the Director, DOES.

219.23 All informal procedures shall terminate when an application for formal hearing is filed.

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 3213 (June 3, 1994); as amended by Final Rulemaking published at 47 DCR 6454 (August 11, 2000).

7 DCMR § 220 HEARINGS ON CLAIMS

220.1 An original application for formal hearing shall be in writing, signed by the moving party, and filed with the Hearings and Adjudication Section. A copy of the application shall also be filed with the Office of Workers' Compensation, and served on all opposing parties, or their representatives, if known.

220.2 Upon receipt of an application for formal hearing, the formal hearing shall be scheduled no later than ninety (90) days from the date of application for formal hearing except, where for good cause shown an extension may be granted by the Hearing Examiner for a reasonable period of time.

220.3 Upon receipt of an application for formal hearing, the Hearing and Adjudication Section shall issue a Scheduling Order. The Scheduling Order shall be issued within ten (10) workings days of receipt of the application for formal hearing.

220.4 Notice of formal hearing shall be served upon all interested parties or their representatives at least ten (10) working days before the hearing.

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 3213 (June 3, 1994); as amended by D.C.ACT 12-571 at 46 DCR 891 (February 5, 1999).

7 DCMR § 221 HEARING OR ATTORNEY EXAMINERS

221.1 All formal hearings on claims shall be conducted by a Hearing or Attorney Examiner designated by the Hearing and Adjudication Section.

221.2 A Hearing or Attorney Examiner shall be an attorney admitted to the bar of the District of Columbia or the bar of some other jurisdiction of the United States.

221.3 A Hearing or Attorney Examiner shall have full power and authority to hear and determine all questions in respect to a claim.

221.4 A Hearing or Attorney Examiner shall conduct impartial formal hearings on claims in accordance with the District of Columbia Administrative Procedure Act [§1-1601 et. seq., D.C. Code, 1981 ed.] and issue compensation orders and other orders in accordance with the Act and this chapter. A Hearing or Attorney Examiner may use the Rules of Civil Procedure of the Superior Court of the District of Columbia as guidelines in matters of procedure not specifically addressed in the District of Columbia Administrative Procedure Act and the Act.

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 3213 (June 3, 1994); as amended by D.C.ACT 12-571 at 46 DCR 891 (February 5, 1999).

7 DCMR § 222 PRE-HEARING PROCEDURES

222.1 The Hearing and Adjudication Section shall furnish interested parties or their representatives with a copy of a Joint Pre-Hearing Statement Form. Unless otherwise ordered by the Hearing Examiner or Attorney, the party applying for the formal hearing or their representative shall, after consultation with the opposing party, prepare the Joint Pre-Hearing Statement for the signature of each party. Failure by any interested party to participate in the timely completion and submission of the Joint Pre-Hearing Statement shall result in the imposition of an appropriate sanction against the non-participating party by the Hearing Examiner or Attorney. The Joint Pre-Hearing Statement shall be filed with the Hearing and Adjudication Section as required by the Scheduling Order.

222.2 The Joint Pre-Hearing Statement shall include the following:

(a) The name of each party's representative;

(b) The basis for jurisdiction, or if contested, the jurisdictional questions;

(d) A listing of all uncontested or stipulated material facts;

(e) A listing of the contested issues of fact and law;

(f) A statement that discovery is complete;

(g) A listing of each party's exhibits, and witnesses, excepting impeachment witnesses;

(h) A statement informing the parties of the availability of, and need to request an interpreter for a party or witness who cannot understand or communicate in the spoken English language or because of a hearing impediment cannot readily understand or communicate in the spoken English language;

(i) A realistic estimate of the time the formal hearing will require;

(j) The statement, "This Joint Pre-Hearing Statement has been formulated after conference between counsel or the representatives of the respective parties and reasonable opportunity has been afforded the participants for corrections, or additions, prior to signing"; and

(k) The statement, "The possibility of settlement of this case has been actively considered.

222.3 The Hearing and Adjudication Section shall furnish a Scheduling Order to all interested parties, or their representatives, within ten (10) working days of its receipt of the application for formal hearing. The Scheduling Order shall contain the date for the submission to Hearing and Adjudication Section of the Joint Pre-Hearing Statement; the date for the close of the discovery period if discovery is not complete prior to the application for formal hearing; the date for the exchange of all documentary exhibits between the parties or their representatives, and the submission to the Hearing and Adjudication Section of exhibits; and, the date by which Motions to Amend the Joint Pre-Hearing Statement must be served upon the opposing party and filed with the Hearing and Adjudication Section.

222.4 If the party applying for a formal hearing fails to perform pursuant to the Scheduling Order, without good cause, the application for formal hearing shall be dismissed. If the party who has not requested the formal hearing fails to perform pursuant to the Scheduling Order, the formal hearing may be scheduled for ex parte proof. A request by either party to set aside the dismissal of an application for formal hearing or to vacate an Order setting a formal hearing on ex parte proof may be granted where the Hearing Examiner has found the party's failure to comport with the Scheduling Order was for good cause.

222.5 Requests for continuances of dates set in the Scheduling Order shall not be granted except for good cause shown. Where good cause has been shown and a previously scheduled date has been extended, this will extend by the identical time period the ninety (90) working day period for convening the formal hearing as contained in subsection 220.2 of this chapter.

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 3213 (June 3, 1994); as amended by D.C.ACT 12-571 at 46 DCR 891 (February 5, 1999).

7 DCMR § 223 CONDUCT OF FORMAL HEARINGS

223.1 Unless excused prior to the hearing, all formal hearings shall be attended by the interested parties and their representatives and any other persons as the Hearing or Attorney Examiner deems necessary and proper.

223.2 If the party requesting the hearing fails to appear, the application for Hearing shall be dismissed unless the other party objects and shows good cause why the application should not be dismissed. If the party who has not requested the hearing fails to appear, the case shall be decided on the evidence received at the hearing. Good cause for failure to appear shall be established for any reopening of the case.

223.3 The Hearing or Attorney Examiner shall inquire fully into matters at issue and shall receive in evidence the testimony of witnesses and any documents which are relevant and material to such matters. Under no circumstance shall the Memorandum of Informal Conference be admitted as evidence.

223.4 If the Hearing or Attorney Examiner believes that there is relevant and material evidence available which has not been presented at the formal hearing, the Hearing or Attorney Examiner may order the parties to acquire and submit the evidence. The Hearing or Attorney Examiner may also continue the hearing to allow the parties to develop the evidence or, at any time prior to the filing of the compensation order, reopen for receipt of the evidence.

223.5 The order in which evidence and allegations shall be presented and the procedures at the hearing generally, except as this chapter otherwise expressly provides, shall be in the discretion of the Hearing or Attorney Examiner and of the nature as to afford the parties a reasonable opportunity for a fair hearing.

223.6 All formal hearings shall be open to the public and shall be stenographically recorded for transcription.

223.7 Nothing in §223.6 of this chapter shall preclude the interested parties from ordering, at their own expense, a transcript of the formal hearing.

223.8 The Hearing or Attorney Examiner shall issue a compensation order based upon substantial evidence in the record within twenty (20) working days after the hearing is concluded in accordance with §21(c) of the Act [§36-320(c), D.C. Code, 1981 ed.]

223.9 The Hearings and Adjudication Section shall maintain a formal hearing record which shall include all pleadings sent to the Hearings and Adjudication Section concerning the formal hearing and the claim, the testimony and the exhibits admitted into evidence during a formal hearing before a Hearing or Attorney Examiner, and the transcript of the stenographic record of the formal hearing.

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 3213 (June 3, 1994).

7 DCMR § 224 ATTORNEY FEES

224.1 In accordance with §31 of the Act [§36-330, D.C. Code, 1981 ed.], this section shall govern the award of attorney fees in all proceedings under the Act.

224.2 In determining whether to award attorney fees and the amount, if any, to be awarded, the following factors shall be considered:

(a) The nature and complexity of the claim including the adversarial nature, if any, of the proceeding;

(b) The actual time spent on development and presentation of the case;

(c) The dollar amount of benefits obtained and the dollar amount of potential future benefits resulting from the efforts of an attorney;

(d) The reasonable and customary local charge for similar services; and

(e) The professional qualifications of the representative and the quality of representation afforded to employee.

224.3 An application for attorney fees shall contain the following:

(a) A complete statement of the extent and character of the necessary work done, described with particularly as to the professional status (e.g., attorney, paralegal, law clerk, or other person assisting an attorney) of each person performing the work;

(b) The normal billing rate in the area for the work; and

224.4 In any case under §31(d) of the Act [§36-330(d), D.C. Code, 1981 ed.] where an attorney fee is awarded against a carrier or employer and there is an application made for witness fees and mileage charges as costs, the application shall be subject to approval in the same manner as an application for attorney fees.

224.5 An award of attorney fees made under §31 of the Act [§36-330,D.C. Code, 1981 ed.] shall not exceed twenty percent (20%) of the actual benefits secured through the efforts of the attorney, including any settlement provided for under the Act and this chapter.

224.6 No contract pertaining to the amount of an awardable attorney fee shall be recognized in reviewing any application for attorney fees under this Act.

224.7 An application for attorney fees shall be filed within six (6) months after the compensation order is issued, or a claim for benefits has become final, or all appeals have been exhausted.

224.8 An application for attorney fees for work performed before the Office of Workers' Compensation shall be filed with the Office. An application for attorney fees for work performed before the Hearings and Adjudication Section shall be filed with the Section. An application for attorney fees for work performed before the Director shall be filed with the Director, DOES.

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 3213 (June 3, 1994).

7 DCMR § 225 COMPENSATION ORDERS ISSUED WITHOUT A FORMAL HEARING

225.1 The Director shall provide for review of a compensation order issued by the Office without a hearing in the manner set forth in §230 of this chapter.

225.2 All interested parties shall be notified of the decision of the Director and of their right to seek judicial review of the final agency action.

225.3 If a substantial question of law or fact prevents the Director from affirming, the compensation order shall be set aside and the case remanded to the Office for further development based on specific findings of deficiencies in the compensation order. On remand, the Office may receive additional evidence and shall issue a new compensation order addressing the specific deficiencies.

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 3213 (June 3, 1994).

7 DCMR § 226 SETTLEMENTS

226.1 The Office may approve lump sum settlements agreed to by the interested parties if it is in the best interest of the injured employee entitled to the benefit in accordance with §9(h) of the Act [§36-308(f), D.C. Code, 1981 ed.].

226.2 In determining what is in the best interest of the injured employee, the Office shall consider all relevant factors including, but not limited to, the following:

(a) Whether there is a valid dispute regarding issues of compensability of a claim, extent of total or partial disability and other liability under the Act;

(b) The age and the educational level of the claimant in relationship to vocational evaluation and entitlement;

(d) Whether and why claimant has refused to undergo surgery to improve a medical condition; Provided, that religious considerations shall be a valid reason to forego surgery.

226.3 Under §9(h) of the Act [§36-308(f), D.C. Code, 1981 ed.], payment of lump sum may be in the form of a structured settlement if it is determined by the Office that the form of payment would be in the best interest of the injured employee.

226.4 Structured settlements may be considered for approval; Provided, that the negotiated settlement reflects the amount of money required to be invested and is shown in addition to the annuity to be paid.

226.5 Application for approval of lump sum settlement shall be completed in full and forwarded to the Office for review.

226.6 If the Office disapproves a settlement, the Office shall prepare a written statement containing the basis for the disapproval and shall send copies of the statement to the parties by certified mail within 30 days.

226.7 The Director shall approve the settlement agreement entered into pursuant to this section where both parties are represented by legal counsel and the claimant is represented by an attorney eligible to receive fees pursuant to Section 31 of the Act (D.C. Code §36-330).

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 3213 (June 3, 1994); as amended by Final Rulemaking published at 47 DCR 6454 (August 11, 2000).

7 DCMR § 227 OCCUPATIONAL DISEASE

227.1 In accordance with §11 of the Act [§36-310, D.C. Code, 1981 ed.] and §2(1) of the Act [§36-301(12), D.C. Code, 1981 ed.], the employer with the last known exposure shall be liable to pay compensation for occupational disease.

227.2 The employer shall not be liable for any occupational disease which results from a hazard to which the worker has had greater exposure outside of the employment.

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 3213 (June 3, 1994).

7 DCMR § 228 SERVING, FILING AND POSTING

228.1 Service by the Office or the Hearings and Adjudication Section of a document or notice shall be accomplished by the following:

(a) Hand deliver the document to each interested party and secure the signature of the recipient; or

(b) Mail the document by certified or registered mail, return receipt requested, to the last known record address of each party, and

228.2 Whenever an interested party desires to file a document with the Office or the Hearings and Adjudication Section, the party shall do the following:

(a) Hand deliver the document to the Office or the Hearings and Adjudication Section and ensure that its receipt is acknowledged by the Office or the Hearings and Adjudication Section.

(b) Mail the document to the Office or the Hearings and Adjudication Section by registered mail, receipt requested.

228.3 If the Office, the Hearings and Adjudication Section or an interested party retains evidence that a document has been served or filed as set forth in §§228.1 and 228.2, the receipt of the document shall be presumed; provided, that the presumption of receipt may be rebutted by evidence to the contrary.

228.4 Whenever the Act or this chapter provides a time period during which an action is to be taken, unless otherwise expressly provided, the time period shall run from the actual receipt of a document.

228.5 Three (3) working days from mailing shall be presumed to be the normal time for registered or certified mail to actually be received.

228.6 All notices and documents required to be posted by employers shall be posted at or near the place of employment of jobsite. Posting shall be in a place where it can be seen and read by employees.

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 3213 (June 3, 1994).

7 DCMR § 229 VOCATIONAL REHABILITATION

229.1 Under §8(e) of the Act [§36-307(a), D.C. Code, 1981 ed.], vocational rehabilitation services shall be provided by employers to injured workers who require such services.

229.2 Employers shall file vocational rehabilitation plans with the Associate Director for the Office of Workers' Compensation.

229.3 The Associate Director shall monitor vocational rehabilitation services to determine adequacy and, on his or her own motion, may cause an investigation to be made pursuant to §229.4.

229.4 An injured worker may make an application to the Associate Director for either the provision of vocational rehabilitation services or a change of service provider.

229.5 The Associate Director, may on the Associate Director's own motion or upon application conduct a rehabilitation conference.

229.6 The application shall contain allegations and supporting information regarding the employer's failure or refusal to provide adequate and sufficient vocational rehabilitation services. Supporting information may include evidence that the plan is not reasonably designed to return the employee to wages as close as possible to the wages that the employee earned at the time of injury.

229.7 The Associate Director shall serve on the employer, notice of the investigation pursuant to this section and a copy of any allegations and supporting information of the employer's failure or refusal to provide adequate or sufficient rehabilitation services.

229.8 The Associate Director may conduct a rehabilitation conference for the purpose of determining the adequacy, feasibility and sufficiency of the vocational rehabilitation services.

229.9 A rehabilitation conference may be held concurrently with the institution of vocational rehabilitation and during vocational rehabilitation. A rehabilitation conference may be held prior to cessation of vocational rehabilitation.

229.10 A rehabilitation conference shall be held with the injured employee, the employer, the vocational rehabilitation provider and/or their respective representatives and the Office as may be deemed necessary. Failure to attend will result in an order based on the evidence at the rehabilitation conference.

229.11 A rehabilitation conference may be scheduled upon not less than fourteen (14) days notice to the parties, unless the parties agree to an earlier date.

229.12 Notice of the rehabilitation conference may be given by telephone, but shall be confirmed in writing setting forth the date, time and place of the conference and the matters to be discussed.

229.13 Within twenty (20) days of receipt of the notice and allegations, the employer shall file with the Associate Director and the injured employee, a response accompanied by the exhibits and written argument as the employer considers relevant to a proper resolution of the matter.

229.14 Within twenty (20) working days after the employer responds, the Associate Director shall determine by Final Order whether the employer shall provide vocational rehabilitation services and, if so, whether any such services already being provided are adequate and sufficient.

229.15 The Associate Director may order the provision of these services or a change in the provider of these services. The Associate Director, by agreement of all parties, may extend the time to issue such an order.

229.16 The Associate Director may, by written order, dismiss a frivolous or unsupported application of an employee after an investigation has been performed.

229.17 The Order of the Associate Director, issued pursuant to this section shall become final unless a written request for a formal hearing is made to the Chief, Hearings and Adjudication Section within twenty (20) working days of the date of issuance. The order shall be served on all interested parties.

229.18 Upon receipt of a request for a formal hearing, a hearing shall be conducted pursuant to §21(c) of the Act [§36-320(c), D.C. Code 1981 ed.].

229.19 Upon request by the Chief, Hearings and Adjudication Section, the order and complete file of the Associate Director shall be forwarded and made a part of the record.

229.20 The Associate Director shall, in his or her investigation of the adequacy and sufficiency of the vocational rehabilitation services provided to the injured worker, consider all questions concerning the provision of vocational rehabilitation services including, but not limited to, the following:

(a) The fact and degree of disability;

(b) The existence of a substantial handicap to employment; and

(c) The likelihood that vocational rehabilitation services will return the individual to employment commensurate with his or her abilities.

(d) The reasonable likelihood that the vocational rehabilitation services will return the individual to employment with wages as close as possible or greater than wages that the employee earned at the time of injury.

229.21 When, in the opinion of the Associate Director, medical reports are insufficient to determine the suitability of vocational rehabilitation services, the Associate Director may order an independent medical evaluation and charge the employer for the associated costs or bill if he is a self-insured or to the insurance company which is carrying the risk or, in appropriate cases, the Special Fund pursuant to §231.4 of this chapter.

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 3213 (June 3, 1994).

7 DCMR § 231 SPECIAL FUND

231.1 The Associate Director for the Office of Workers' Compensation, or his or her designee, shall be the custodian of the Special Fund and, in administering the provisions of §41 of the Act [§36-340, D.C. Code, 1981 ed.], shall observe the customary duties and obligations of a fiduciary.

231.2 For purposes of this section, the term "award" means any final order issued under §21 of the Act [§30-320, D.C. Code, 1981 ed.] finding the employer liable for any of the following:

(a) Compensation benefits under §9 of the Act [§36-308, D.C. Code, 1981 ed.];

(b) Death benefits under §10 of the Act [§36-309, D.C. Code, 1981 ed.];

(d) Medical services and supplies under §8 of the Act [§36-307, D.C. Code, 1981 ed.]; and

(e) Attorneys' fees under §31 of the Act [§36-330, D.C. Code, 1981 ed.].

231.3 The term "award" shall not apply to any order finding an employer in violation of the discriminatory discharge provision of Section 43 of the Act (D.C. Code §36-342).

231.4 Under §41(a) of the Act [§36-340(a), D.C. Code, 1981 ed.], payments may be made from the Special Fund for any of the following:

(a) For the provision of vocational rehabilitation services ordered by the office under §8(c) of the Act [36-307(c), .D.C. Code, 1981 ed.;

(b) For the expenses of medical examinations required by the Office under §8(e) of the Act [§36-307(e), D.C. Code, 1981 ed.];

(c) For supplemental compensation benefits due an employee whose injury occurred prior to April 16, 1999 and is a second injury under Section 9(f) of the Act (D.C. Code §36-308(d));

(d) For the satisfaction of a judgment for an award, including reasonable medical expenses and attorney fees under §20(b) of the Act [§36-319(b), D.C. Code, 1981 ed.].

(e) For Utilization Review.

231.5 The Office may pay from the Special Fund, the medical expenses of an examination ordered by the Associate Director, pursuant to §8(e) of the Act [36-307(e), D.C. Code, 1981 ed.] and §212.19, only after making an unsuccessful demand upon the self-insured employer or the carrier to pay the expenses and only after determining either that the carrier or employer is insolvent or that it would further the interest of justice to make the payment from the Special Fund.

231.6 An employer liable for compensation payments in connection with a second injury may file with the Associate Director, an application for an order finding the Special Fund liable for supplemental compensation payments under §9(f) of the Act [§36-308(d), D.C. Code, 1981 ed.].

231.7 All issues of an employer's liability and the extent and nature of compensation payable under an approved claim shall be in final disposition prior to filing a request for relief for the second injury from the Special Fund.

231.8 Upon the filing of an application for an order finding the Special Fund liable for supplemental compensation benefits, the Associate Director shall investigate the matter to ensure, among other things, that there are no substantial matters in dispute and that the employer has made or is making appropriate payments to the disabled employee or beneficiary.

231.9 Within sixty (60) days following the filing of the application, the Associate Director shall issue an order which determines the liability of the Special Fund for compensation benefits; Provided, that the Associate Director may order the submission of additional evidence.

231.10 If additional evidence is ordered to be submitted pursuant to §231.9, the Associate Director shall issue an order within thirty (30) days of receipt of the evidence. The order shall state the reasons for its determination.

231.11 An employer aggrieved by an adverse determination, pursuant to §231.8, may request, within thirty (30) days, a formal hearing pursuant to §220 of this chapter.

231.12 An employer who has obtained an order finding the Special Fund liable for compensation payments for a second injury disability may file, on a quarterly basis, a request for reimbursement for compensation payments.

231.13 The request for reimbursement shall be in a manner prescribed by the Associate Director and shall be accompanied by invoices, payment records, cancelled checks or such other documents as the Associate Director may require.

231.14 The Associate Director may require any additional proof as he or she deems necessary to complete an investigation of the reimbursement request.

231.15 Upon completion of his or her review and within thirty (30) days of the receipt of the request for reimbursement, the Associate Director shall disburse from the Special Fund the payments to which he or she finds the employer entitled.

231.16 Under §20(b) of the Act [§36-319(b), D.C. Code, 1981 ed.], the Associate Director may make from the Special Fund, payments upon any award if the employer is insolvent and had defaulted. Special Fund payments may provide for necessary medical, surgical or other treatment required by §8 of the Act [§36-307, D.C. Code, 1981 ed.]

231.17 A claimant, beneficiary or attorney who has obtained an award and a judgment based thereon may apply for Special Fund payments pursuant to §20 of the Act [§36-319, D.C. Code, 1981 ed.].

231.18 The application for Special Fund payments pursuant to §231.17 shall be filed with the Associate Director within twenty-four (24) months of the date of the judgment together with a statement of the efforts made to enforce the judgment under §23(c) of the Act [§36-322(c), D.C. Code, 1981 ed.] and copies of the award, the declaratory supplementary default order, any mandatory injunction, and a certified copy of the judgment.

231.19 Upon receipt of the application for Special Fund payment, the Associate Director shall investigate the allegations contained in the application, the financial position of the employer or carrier, and such matters which the Associate Director deems necessary to a just decision.

231.20 Within twenty (20) working days of receipt of the application for Special Fund payment pursuant to §231.17, the Associate Director shall issue an order granting or denying the relief sought in the application.

231.21 In investigating any request for payments from the Special Fund under this section, the Associate Director is authorized under §30(a) of the Act [§36-329(a), D.C. Code, 1981 ed.] to issue any orders, subpoenas, interlocutories, or other process to any person as may be necessary to discharge his or her duties.

231.22 The total assessment amount shall be allocated between self-insured employers and insured employers based on paid losses for the fiscal year preceding the year in which the assessment is based.

231.23 The method of assessing self-insured employers shall be based upon paid losses. The method for assessing insured employers shall be a surcharge based upon a premium as set forth in the subsection.

231.24 The portion of the total aggregate assessment to be collected from self-insured employers shall be equal to that proportion of the total paid losses during the preceding fiscal year, which the total paid losses of all self-insured employers and insurers on behalf of all insured employers during the preceding fiscal year.

231.25 The portion of the total aggregate assessment that shall be collected from insured employers shall be equal to that proportion of the total paid losses during the preceding fiscal year, which the total paid losses made on behalf of all insured employers bore to the total paid losses made by self-insured employers and insurers on behalf of all insured employers during the preceding fiscal year.

231.26 The method for determining the total paid losses and the proportions shall be based upon the quarterly reports required pursuant to subsection 233.12 of this Chapter.

231.27 On or after September 1st each year, the Office shall notify each self-insured employer of its assessed prorata share and shall notify insurers of the premium surcharge rate applicable to policies of insured employees.

231.28 Each self-insured's assessment shall be payable upon receipt of the notice of assessment and be paid no later than thirty (30) days after receipt of the assessment notice.

231.29 At the end of each quarter, each insurer shall submit to the Office, an amount equal to the premium surcharge collected from its policyholders during that quarter. The payment shall be submitted no later than thirty (30) days after each quarter ends.

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 3213 (June 3, 1994); as amended by Final Rulemaking published at 47 DCR 6454 (August 11, 2000).

7 DCMR § 232 UTILIZATION REVIEW

232.1 Any medical care or service furnished or scheduled to be furnished under the Act shall be subject to utilization review. The review may be performed before, during or after the medical care or service is provided.

232.2 A utilization review organization or individual used pursuant to the Act shall be certified by the Utilization Review Accreditation Commission.

232.3 The employee, employer or the Office may initiate the review, accepting as a given the diagnosis of injury, where it appears that the necessity, character or sufficiency of medical services is improper or clarification is needed on medical service that is scheduled to be provided.

232.4 The report of the review shall specify the medical records considered and shall set forth rational medical evidence to support each finding. The report shall be authenticated or attested to by the utilization review individual or by an officer of the utilization review organization. The report shall be provided to the employee, employer and the Office.

232.5 A utilization review report which conforms to the provisions of §232.4 of this chapter may be admissible in all proceedings with respect to any claim to determine whether medical care or service was, is, or may be necessary and appropriate to the diagnosis of the claimant's injury or disability.

232.6 If the medical care provider disagrees with the opinion of the utilization review organization or individual, the medical care provider may submit a written request to the utilization review organization or individual for reconsideration of the opinion. The request shall contain reasonable medical justification for the request and shall be made within sixty (60) calendar days from actual receipt of the utilization review report.

232.7 If a dispute arises between the medical care provider, employee, or employer on the issue of necessity, character, or sufficiency of the medical care or service or fees charged by the medical care provider, the dispute shall be resolved by the Director upon application for a hearing. Any party adversely affected by the Director's Decision shall appeal to the D.C. Court of Appeals. Copies of all reports shall be furnished to all interested parties.

232.8 The cost of a utilization review shall be paid by the employer, if the employee seeks the review and is the prevailing party.

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 3213 (June 3, 1994).

7 DCMR § 233 ADMINISTRATION FUND

233.1 The provisions of this section set forth the policies and procedures which apply to the Administration Fund in accordance with Section 42 of the Act (D.C. Code §36-341).

233.2 The Mayor shall determine, for fiscal years commencing on or after October 1, 1999, the cost of administration of this act for each fiscal year and shall prorate and assess the costs of administration as provided in this section. The cost of administration shall include any expenses that have been incurred, will be incurred, or that will accrue during the fiscal year.

233.3 The Mayor shall determine, in each fiscal year commencing on or after October 1,1999, prior to the commencement of the fiscal year, the cost of administration of this Act. The cost of administration shall include any expenses to be incurred or that will accrue during the fiscal year.

233.4 The Mayor shall determine, at the end of each fiscal year, the cost of the administration of this Act. The cost of administration shall include any expenses to be incurred or that will accrue during the fiscal year.

233.5 The total amount of costs to administer this Act shall be pro rated among the carriers and self-insurers authorized to insure pursuant to Section 35 of the Act (D.C. Code §36-334).

233.6 The assessment base shall be the total amount of compensation and medical payments that carriers and self-insurers have paid pursuant to this Act during the preceding fiscal year; Provided, however, beginning with the fiscal year commencing on or after October 1, 1999, the Mayor shall have the authority to assess each carrier or self-insured a minimum annual amount of $1,000.

233.7 The Mayor shall assess each carrier and self-insurer for its pro rata share of the total amount of costs to administer this Act in the fiscal year pursuant to Section 42 of the Act.

233.8 The Mayor shall give written notice by certified or registered mail, to each carrier and self-insurer of the assessment against it.

233.9 Each assessment shall be payable upon receipt of the notice of assessment and be paid no later than thirty (30) days after receipt of the notice of assessment.

233.10 Each carrier and self-insurer who fails to pay the assessment in a timely manner as prescribed by the Office shall be subject to the penalties provided for under the Act.

233.11 If a deficit is projected to occur in the administration of the fund, prior to the end of the fiscal year, the Mayor is authorized to implement an emergency assessment in an amount deemed necessary to avoid a deficit. Self-insurers and carriers, on behalf of their policyholders, shall remit the emergency assessment within 30 calender days of notice of the assessment.

233.12 Each carrier and self-insurer shall be required to submit to the Office quarterly or at any other time as determined by the Office, a report to include, but not limited to, the amount of compensation and medical payments made pursuant to the provisions of the Act during that reporting period.

233.13 The report shall be filed within thirty (30) days after each quarter ends.

233.14 If a carrier or self-insurer fails to pay the assessment or to make and preserve records in the form and manner required by the Mayor, to file a report in the form and manner required by the Mayor, or to allow the Mayor to inspect records required by rules issued pursuant to Section 42 of the Act, the Mayor may suspend or revoke the authorization of a carrier to insure for workers' compensation or a self-insurer to act as a self-insurer.

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 3213 (June 3, 1994); as amended by Final Rulemaking published at 47 DCR 6454 (August 11, 2000).

7 DCMR § 234 SAFE WORKPLACE PROGRAM

234.1 Where there is no duty to bargain collectively, an employer who elects to implement a Safe Workplace Program for the purpose of obtaining a workers'

(a) the name and address of the employer and the employer's federal tax identification number;

(b) the employer's insurer;

(c) written documentation demonstrating that the employer's Safe Workplace Program includes at least the following requirements for certification, including:

(1) a safety committee made up of equal numbers of management representatives and employee representatives who are elected by their peers and who serve in a paid status;

(2) a notarized certification signed by a corporate officer stating that the company has complied with the safe workplace program statutory requirements;

(3) a formal written safety policy developed by the safety committee;

(4) regular safety committee meetings with written records;

(5) a system for making recommendations to the employer on ways to eliminate workplace hazards and unsafe work practices;

(6) appropriate training in hazard assessment and control, effective accident and incident identification, and the role of the Federal and Local Occupational Safety and Health administrations; and

(7) annual workplace inspection.

234.2 Where there is a duty to bargain collectively, the employer shall collectively bargain the use and implementation of the Safe Workplace Program.

234.3 A Safe Workplace Program derived through the collective bargaining process shall be submitted to the Office for certification and must be accompanied by the requirements specified in this subsection.

234.4 Workplace inspections conducted by contractors or persons other than safety committee members and any training provided or to be provided shall be provided by a certified safety professional and must be appropriate to conditions in the work place. persons other than safety committee members and any training provided or to be provided shall be provided by a certified safety professional and must be appropriate to conditions in the work place.

234.5 The name, address, certification number and certifying organization of the safety specialists providing the training must be submitted with the workplace safety program certification request.

234.6 Copies of any Safe Workplace Plan forwarded to the Office for certification pursuant to this section shall concurrently be forwarded to the employer's insurer for its review. The insurer shall forward any written comments or objections it may have to the Office and the employer within 25 days of its receipt of the Safe Workplace Plan. If the insurer does not forward comments or objections to the employer's plan to the Office, it shall be presumed that the insurer has no objections to the plan.

234.7 Within 30 days after receiving the proposed Safe Workplace Program, the Office or the Office's Designee shall review the program for compliance with the requirements provided herein and shall notify the employer that the program is in compliance or that the program is not in compliance. Where it is determined that the program is not in compliance, the notification shall set forth in detailed explanation of the determination.

234.8 The Office may request that employers participating in the Safe Workplace Program submit to the Office in a prescribed format information including, but not limited to, statistical data on accident rates, workers' compensation costs and workplace safety program implementation costs.

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 6454 (August 11, 2000).

7 DCMR § 250 COMPENSATION ORDER REVIEW BOARD; ADMINISTRATIVE AND JUDICIAL REVIEW

250.1 Sections 250 to 260 describe the establishment and organizational structure of the Compensation Order Review Board (Board), section 261 sets forth general rules applicable to the operation of the Board, and, sections 265 through 271, provide the Board's rules of practice and procedure.

250.2 These regulations supersede and replace 7 DCMR section 118, governing administrative appeals under the CMPA (Public Sector Act) and 7 DCMR section 230 governing administrative appeals under the District of Columbia Workers' Compensation Act of 1979 (WCA), effective July 1, 1980, D.C. Law 3-77, D.C. Official Code § 32-1501 et seq. (2001) (Private Sector Act) (collectively, the Acts).

250.3 Except as otherwise specified herein, the definitions set forth at 7 DCMR section 199 shall apply to all Public Sector Act appeals, and the definitions set forth at 7 DCMR section 299 shall apply to all Private Sector Act appeals.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 52 DCR 8405 (September 9, 2005) [EXPIRED]; as amended by Final Rulemaking published at 52 DCR 11093 (December 23, 2005).

7 DCMR § 251 ESTABLISHMENT OF THE COMPENSATION ORDER REVIEW BOARD

251.1 Pursuant to Administrative Policy Issuance No. 05-01 (February 5, 2005), the Director established the Compensation Order Review Board to which the Director delegated and assigned the administrative review authority formerly vested in the Office of the Director under the Public Sector and Private Sector Acts.

251.2 The authority of the Board is quasi-judicial in nature, involving the review and determination of appeals from compensation orders (including final decisions or orders granting or denying benefits) by the Administrative Hearings Division and/or the Office of Workers' Compensation under the Public Sector and Private Sector Acts, consistent with statutory authority.

251.3 The Board is established within the Office of Hearings and Adjudication (OHA), within the Office of the Assistant Director/Labor Standards Bureau, Department of Employment Services.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 52 DCR 8405 (September 9, 2005) [EXPIRED]; as amended by Final Rulemaking published at 52 DCR 11093 (December 23, 2005).

7 DCMR § 252 COMPOSITION OF THE COMPENSATION ORDER REVIEW BOARD

252.1 The Board shall be composed of five members, consisting of the Chairperson/Chief Administrative Appeals Judge (hereinafter, Chief Administrative Appeals Judge), and four Associate Administrative Law/Appeals Judges (hereinafter, Administrative Appeals Judges).

252.2 In the event of necessity, the Director may additionally designate an Administrative Law Judge with the Administrative Hearings Division, or similarly qualified individual, to serve as an alternate Board member, for a term not to exceed one year from the date of appointment.

252.3 The Chief Administrative Appeals Judge and Associate Administrative Appeals Judges shall be Administrative Law Judges in good standing with the OHA.

252.4 With the concurrence of the Director, the Chief Administrative Appeals Judge may assign an Administrative Appeals Judge serving on the Board to simultaneously serve for a fixed period of time as an Administrative Law Judge with the Administrative Hearings Division, provided that the individual so assigned shall not participate as an Administrative Appeals Judge in the review of any appeal from a compensation order issued by that Judge while acting in his or her capacity as an Administrative Law Judge with the Administrative Hearings Division.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 52 DCR 8405 (September 9, 2005) [EXPIRED]; as amended by Final Rulemaking published at 52 DCR 11093 (December 23, 2005).

7 DCMR § 253 INTERIM APPOINTMENTS

253.1 In the event the Chief Administrative Appeals Judge is temporarily disabled or unavailable to perform his or her duties, the Chief Administrative Appeals Judge shall designate a member of the Board to serve as Acting Chief Administrative Appeals Judge until such time as the Director designates an Acting Chief Administrative Appeals Judge.

253.2 In the event that the Chief Administrative Appeals Judge is physically unable to make such designation, the next senior member of the Board shall serve as Acting Chief Administrative Appeals Judge until such time as the Director designates an Acting Chief Administrative Appeals Judge.

253.3 In the event that an Administrative Appeals Judge is temporarily unable to carry out his or her responsibilities because of disqualification, illness, or for any other reason, the Chief Administrative Appeals Judge, with the concurrence of the Director, may appoint a qualified individual to serve in the place of such member for the duration of that member's inability to serve.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 52 DCR 8405 (September 9, 2005) [EXPIRED]; as amended by Final Rulemaking published at 52 DCR 11093 (December 23, 2005).

7 DCMR § 254 CONFLICT OF INTEREST

254.1 During any period in which the Chief Administrative Appeals Judge and other members serve on the Board, they shall be subject to conflict of interest and other appropriate ethical restraints.

254.2 Notice of any objection which a party may have to any Board member participating in a proceeding governing the disposition of the party's appeal shall be made by such party at the earliest opportunity but in no event later than the date that the case is assigned to a Review Panel under section 262.1 of this Chapter.

254.3 The Board member shall consider such objection and shall, in his or her discretion, either proceed with the case or withdraw.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 52 DCR 8405 (September 9, 2005) [EXPIRED]; as amended by Final Rulemaking published at 52 DCR 11093 (December 23, 2005).

7 DCMR § 255 REVIEW PANELS

255.1 Subject to and consistent with the provisions of D.C. Official Code § 32-1521.01, subsections (b), (c) and (d), the Board shall sit, review appeals, render decisions, and perform all other delegated and related functions in Review Panels of three members.

255.2 The Chief Administrative Appeals Judge shall make appointment to Review Panels from the sitting Members of the Board in a manner best suited to insure impartiality.

255.3 The Chief Administrative Appeals Judge may also direct that an appeal or review be decided by the full membership of the Board as specified in section 255.8.

255.4 Each assigned Review Panel shall be chaired by one member thereof, designated by the Chief Administrative Appeals Judge. The Chief Administrative Appeals Judge may also serve as a Panel member in the deliberation and disposition of appeals.

255.5 For purposes of carrying out its official functions, a Review Panel may only act with the concurrence of two members of the Review Panel unless and except as otherwise specified in these regulations.

255.6 A Review Panel decision with respect to an issue constitutes persuasive authority for and with respect to, any subsequent Review Panel decision rendered addressing the same issue.

255.7 Decisions issued by the Director prior to establishment of the Board shall be accorded persuasive authority by the Board.

255.8 Where two or more Review Panels disagree concerning the resolution of an issue, the Chief Administrative Appeals Judge may direct that the issue be reviewed and resolved by the full Board sitting en banc. In such instance, official action of the full Board can be taken only on the concurring vote of at least three Board members.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 52 DCR 8405 (September 9, 2005) [EXPIRED]; as amended by Final Rulemaking published at 52 DCR 11093 (December 23, 2005).

7 DCMR § 256 OFFICE OF THE CLERK

256.1 Except as otherwise provided by these regulations, the filing and submission of Applications for Review, pleadings, motions and all other written communications with the Board shall be addressed to Clerk of the Board.

256.2 Ex parte communications between any party and a Member of the Board regarding an Application for Review are strictly prohibited.

256.3 The Office of the Clerk of the Board shall be open from 8:30 a.m. to 5:00 p.m. on all days except Saturdays, Sundays, and legal holidays, for the purpose of receiving Applications for Review and such other pleadings, motions and papers as are pertinent to any matter before the Board.

256.4 All requests to visit the Clerk's Office, for purposes other than the submission of documents as outlined in section 256.3, shall be submitted in writing. The Clerk of the Board shall schedule an appointment to be held at a mutually convenient time no later than five (5) working days from the date of receipt of the party's written request.

256.5 A docket of all proceedings shall be maintained by the Board. A party to an appeal (and his or her representative) shall have access to the Board's case file pertaining to such appeal after making an appointment with the Office of the Clerk.

256.6 A party to an appeal, after contacting the Clerk of the Board in accordance with section 256.4, may make one copy of the documents contained in the Board's case file (excluding the hearing transcript) at the party's expense, at a reasonable rate set by the Board.

256.7 The Clerk's Office shall serve the final decision of the Compensation Review Board in the following manner:

(a) Hand deliver the document to the authorized representative of each party and secure a signature of the recipient; or

(b) Mail the document by certified or registered mail, return receipt requested, to the last known record address of the representative of each party; and

(d) Where a party is not represented, the Clerk's Office shall serve a copy of the final decision on the party.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 52 DCR 8405 (September 9, 2005) [EXPIRED]; as amended by Final Rulemaking published at 52 DCR 11093 (December 23, 2005).

7 DCMR § 257 FILINGS WITH THE BOARD

257.1 Filings with the Board of any permitted pleading, including the Application for Review, shall be deemed effective upon actual receipt by the Office of the Clerk.

257.2 Filings will be accepted by U.S. mail, commercial overnight delivery, inter-governmental mail, or personal delivery.

257.3 Submission of documents, including the Application for Review, by facsimile (fax) transmission or e-mail does not constitute filing and shall not be accepted for filing.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 52 DCR 8405 (September 9, 2005) [EXPIRED]; as amended by Final Rulemaking published at 52 DCR 11093 (December 23, 2005).

7 DCMR § 258 APPLICATION FOR REVIEW

258.1 Any party adversely affected or aggrieved by a compensation order or final decision issued by the Administrative Hearings Division or the Office of Workers' Compensation may appeal the compensation order or final decision to the Board by filing an Application for Review pursuant to this section. The party filing the Application for Review shall be designated as the "petitioner" for purposes of proceedings before the Board on appeal.

258.2 An Application for Review must be filed within thirty (30) calendar days from the date shown on the certificate of service of the compensation order or final decision from which appeal is taken.

258.3 An Application for Review must include the following:

(a) An original and three (3) copies of the Application for Review, and

(b) an original and three (3) copies of a supporting memorandum of points and authorities setting forth the legal and factual basis for requesting review.

258.4 The Application for Review shall also:

(a) identify the compensation order or final decision from which the petitioner appeals;

(b) state whether the compensation order or final decision was issued by the Office of Workers' Compensation or the Administrative Hearings Division; and

(c) include, by way of attachment to the Application for Review, a copy of the compensation order or final decision appealed.

258.5 When the petitioner files the Application for Review with the Clerk of the Board the Clerk shall issue a Notice of Application for Review and serve it on all parties. This Notice shall inform the parties of the filing of the Application, of the time period prescribed for filing pleadings in response thereto, and of such additional information as the Clerk may deem warranted.

258.6 At the same time that the petitioner files the Application for Review and supporting memorandum with the Board, the petitioner shall:

(a) serve a copy, by mail or personal delivery, copies of same upon the opposing party(ies), who shall be designated the "respondent(s)" for purposes of proceedings before the Board on appeal;

(b) serve a copy on either the Administrative Hearings Division or the Office of Workers' Compensation, depending upon which office issued the compensation order or final decision from which the appeal is taken; and,

258.7 A party adverse to the Application for Review may file a response in opposition. The party filing the opposition shall be designated as the "respondent" for purposes of proceedings before the Board on appeal.

258.8 Any response in opposition must be filed with the Clerk of the Board within fifteen (15) calendar days from the date of filing of the Application for Review.

258.9 The response in opposition to the Application for Review must include an original and three (3) copies. An additional copy of the response shall be served, by mail or personal delivery, upon the petitioner.

258.10 Within five (5) calendar days of receipt of a memorandum filed in opposition to an Application for Review, the petitioner may file a reply memorandum (original and three copies) with the Board, and serve copy of same upon the respondent. No further submissions by the parties shall be permitted, unless requested by the Review Panel to which the appeal is assigned or as provided under section 258.11 dealing with a cross- appeal.

258.11 If the Board receives a timely Application for Review, any other party may initiate a cross-appeal by filing, with the Clerk of the Board, a Notice of Cross-Appeal within seven (7) calendar days of the receipt of the Application for Review, or within the time prescribed by section 258.8, whichever period last expires.

258.12 The Notice of Cross-Appeal shall include an original and three copies of an accompanying memorandum of points and authorities in support of the Cross-Appeal and shall be served upon the petitioner.

258.13 The petitioner shall have five (5) calendar days from the date of service to file with the Clerk of the Board, a memorandum of points and authorities in opposition thereto.

258.14 No further pleadings or other submissions with regard to the cross-appeal shall be allowed.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 52 DCR 8405 (September 9, 2005) [EXPIRED]; as amended by Final Rulemaking published at 52 DCR 11093 (December 23, 2005).

7 DCMR § 259 TRANSMISSION OF THE OFFICIAL RECORD

259.1 Simultaneously with the issuance of the Notice of Application for Review under section 258.5 of these rules, the Clerk of the Board shall direct the custodian of the record to immediately forward to the Board the official evidentiary record of the case.

259.2 The official record shall include the compensation order, the transcripts of all formal proceedings, exhibits, and other evidence of record, and any other such matters as shall be indicated.

259.3 The "custodian of the record" is the individual responsible for the official records in the Administrative Hearings Division or the Office of Workers' Compensation, depending on which entity issued the compensation order or final decision under appeal.

259.4 The custodian of the record shall certify and deliver to the Clerk of the Board the official record of the case within seven (7) working days of the date of issuance of the Notice of Application for Review.

259.5 "Working days" is defined by 7 DCMR 299 as "the District of Columbia Government business days, excluding Saturdays, Sundays and legal holidays."

259.6 When the Clerk has received the official record of the case and the response from the party(ies) opposing the Application for Review, but in no event later than fifteen (15) working days from the date of receipt of the Application for Review, the Clerk of the Board shall certify to the Chief Administrative Appeals Judge that the appeal is perfected.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 52 DCR 8405 (September 9, 2005) [EXPIRED]; as amended by Final Rulemaking published at 52 DCR 11093 (December 23, 2005).

7 DCMR § 260 STAYS OF COMPENSATION

260.1 The filing of an Application for Review shall not stay the effectiveness of a compensation order nor the payment of any amount ordered by it pending review by the Board.

260.2 Upon application by the employer the Board may stay a compensation order.

260.3 The Board shall only stay a compensation order on the grounds that the employer would suffer irreparable injury by complying with it.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 52 DCR 8405 (September 9, 2005) [EXPIRED]; as amended by Final Rulemaking published at 52 DCR 11093 (December 23, 2005).

7 DCMR § 261 COMPENSATION ORDER REVIEW BOARD RULES OF GENERAL APPLICATION

261.1 These Rules shall not be construed to extend or limit the jurisdiction or authority of the Board.

261.2 Chapter 7 DCMR sections 265 to 271 sets forth the Compensation Review Board Rules of Practice and Procedure. Those rules are fully applicable to this section

261.3 Except as otherwise provided, the rules promulgated in section 258, dealing with Applications for Review, apply to all appeals of any compensation orders and final decisions issued by the Administrative Hearings Division or Office of Workers' Compensation with respect to claims for compensation or benefits under the Private Sector and Public Sector Acts.

261.4 Where a procedural issue coming before the Board is not specifically addressed herein or by section 258, the Board may rely upon the Rules of the District of Columbia Court of Appeals, and the Rules of Civil Procedure of the D.C. Superior Court where appropriate.

261.5 The Board shall have power to preserve and enforce order during any proceedings for determination or adjudication of entitlement to compensation or benefits or for liability for payment thereof, and to do all things in accordance with law which may be necessary to enable the Board to effectively discharge its duties.

261.6 If a party in proceedings before the Board disobeys or resists any lawful order or process,or otherwise acts to obstruct the same, the Board may certify the facts to the District of Columbia Superior Court which shall thereupon, in a summary manner, hear the evidence as to the acts complained of, and if the evidence so warrants, punish such party in the same manner and to the same extent as for a contempt committed before the court, or commit such party upon the same conditions as if the doing of the forbidden act had occurred with reference to the process or in the presence of the court.

261.7 A timely motion for reconsideration of a compensation order filed with the Administrative Hearings Division shall not stay the running of the thirty (30) day period for filing an Application for Review with the Board prescribed in section 258.2 of these regulations. Where, however, a motion for reconsideration is not ruled upon prior to the filing of an Application for Review, the pendency of the motion may serve as a basis for a stay of proceedings on a timely appeal before the Board until the motion is ruled upon by the Administrative Hearings Division.

261.8 The time periods specified for submitting any filing described in section 258, except that for the filing of an Application for Review, may be enlarged for a reasonable period when, in the judgment of the Board, and upon a showing of exceptional circumstances by the requesting party, an enlargement is warranted.

261.9 A request for an enlargement of time shall be submitted in writing in the form of a motion, specifying the reasons for the request, and shall be directed to the Clerk of the Board.

261.10 The request must be received by the Clerk on or prior to the date on which the filing is due.

261.11 The parties to an appeal before the Board shall use the requirements of Rule 28 of the Rules of the D.C. Court of Appeals, to the extent practicable, as guidelines in the preparation and formatting of memorandum of points and authorities and other legal memorandum required to be filed with the Board.

261.12 Cases may, in the sole discretion of the Board, be consolidated for purposes of an appeal upon the motion of any party or upon the Board's own motion where there exist common parties, common questions of law or fact or both, or for such other circumstances as justice and the administration of the Acts requires.

261.13 Upon its own motion, or upon motion of any party, the Board may, for good cause, order any proceeding severed with respect to some or all issues or parties.

261.14 No Administrative Law/Appeals Judge shall maintain standing, chamber or other individual rules.

261.15 Nothing in these rules, however, shall be construed to limit the authority of the Chief Administrative Appeals Judge to approve the use of forms, documents and practices not inconsistent with these rules that shall assist in managing appeals coming before the Board, nor shall these rules limit the authority of an Administrative Law/Appeals Judge to issue any lawful order for purposes of case management or any other matter in particular cases.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 52 DCR 8405 (September 9, 2005) [EXPIRED]; as amended by Final Rulemaking published at 52 DCR 11093 (December 23, 2005).

7 DCMR § 262 COMPENSATION REVIEW BOARD RULES OF PRACTICE AND PROCEDURE

262.1 Within seven (7) working days of the filing of the Application for Review, the Chief Administrative Appeals Judge shall assign the appeal to a Compensation Review Panel (hereinafter Review Panel), which may include the Chief Administrative Appeals Judge, to review and determine the legal sufficiency of the compensation order or final decision appealed.

262.2 The Review Panel may not include the Administrative Law Judge that issued the compensation order under review or was otherwise substantially involved in the conduct of proceedings resulting in the appeal before the Board.

262.3 Within thirty (30) working days of perfection of an appeal, the Review Panel shall decide the matter under review, including the case in chief and any cross-appeal, as well as any necessary orders, by majority vote of at least two concurring Review Panel Members.

262.4 The Board, in its sole discretion, may at any time order oral argument with respect to a pending appeal.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 52 DCR 8405 (September 9, 2005) [EXPIRED]; as amended by Final Rulemaking published at 52 DCR 11093 (December 23, 2005).

7 DCMR § 263 ORAL ARGUMENT

263.1 Where oral argument is ordered, the parties shall be provided a minimum of ten (10) calendar days notice, in writing, of the scope of argument, including the issues to be addressed, and of the time when, and place where, oral argument will be held.

263.2 Once oral argument is scheduled it shall not be continued except for good cause shown, upon motion received by the Board at least five (5) calendar days in advance of the scheduled date of oral argument and served that same date upon the opposing party.

263.3 Oral argument shall be conducted under the supervision of the Chief Administrative Appeals Judge or, if the Chief Administrative Appeals Judge is not a Member of the Review Panel, by the Chair of the Review Panel, who shall regulate all procedural matters arising during the course of argument.

263.4 The Chief Administrative Appeals Judge or the Chair of the Review Panel shall, in his or her discretion, determine the amount of time allotted to each party for argument and rebuttal. The presiding Administrative Appeals Judge shall also have the discretion to open the oral argument to the public and permit any party, representative, or duly authorized attorney to present the oral argument.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 52 DCR 8405 (September 9, 2005) [EXPIRED]; as amended by Final Rulemaking published at 52 DCR 11093 (December 23, 2005).

7 DCMR § 264 SUBMISSION OF ADDITIONAL EVIDENCE

264.1 Where a party requests leave to adduce additional evidence the party must establish:

(a) that the additional evidence is material, and

(b) that there existed reasonable grounds for the failure to present the evidence while the case was before the Administrative Hearings Division or the Office of Workers' Compensation (depending on which authority issued the compensation order from which appeal was taken).

264.2 Where a party satisfies the requirements of subsections 264.1(a) and (b), the Review Panel to which the appeal is assigned, at its sole discretion, may remand the case to Administrative. Hearings Division or the Office of Workers' Compensation for such further proceedings as the presiding Administrative Law Judge or claims examiner deems necessary.

264.3 Upon remand pursuant to subsection 264.2 of this Chapter, and receipt of the additional evidence, the presiding Administrative Law Judge or claims examiner may make such modification to the original compensation order as the additional evidence warrants.

264.4 Where an Administrative Law Judge or claims examiner issues a new or modified compensation order following remand under subsection 264.2, the Review Panel may reject the compensation order.

264.5 A party may either apply to the Board for review of the new or modified compensation order (or the Panel's decision to reject the compensation order) or request reinstatement of the party's originally-filed Application for Review.

264.6 Any request for reinstatement must be filed within thirty (30) calendar days of the Administrative Law Judge's or claims examiner's decision on remand, in the manner provided by section 258 for the review of an initial compensation order.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 52 DCR 8405 (September 9, 2005) [EXPIRED]; as amended by Final Rulemaking published at 52 DCR 11093 (December 23, 2005).

7 DCMR § 265 MOTIONS

265.1 An application to the Board for an order (other than a final decision and order) shall be by motion in writing (original and three copies).

265.2 A motion shall state with particularity the grounds therefore, including any legal support, and shall set forth the relief or order sought, and shall be accompanied by a certification showing that the opposing party(ies) have been served with the motion. If there is no objection to a motion by the other party(ies) in the case, the absence of objection shall be stated in the motion.

265.3 A motion, and any accompanying statement in support of the motion, shall be a separate document and shall not be incorporated in the text of any other paper filed with the Board.

265.4 Within five (5) calendar days of the receipt of a copy of a motion, an opposing party may file a written response (original and three copies) with the Board.

265.5 Except as otherwise provided in these Rules, motions shall be determined and disposed of by the Board as follows:

(a) Where a Review Panel has not been assigned to the case, the Chief Administrative Appeals Judge, or the Clerk of the Board where designated by the Chief Administrative Appeals Judge, may enter orders on behalf of the Board with respect to all non-dispositive motions, including motions for stays and for extensions of time for filing supporting and responding memorandum and briefs.

(b) Where a Review Panel has been assigned to the case, the designated Chair of the Review Panel shall review and decide all non-dispositive motions, including motions for stays and for extensions of time, and enter orders on behalf of the Board with respect thereto.

(c) All dispositive motions, including but not limited to motions to dismiss, whether opposed or unopposed, shall be reviewed and decided by the Review Panel assigned to the case, unless no Review Panel has been assigned in which event a panel of three Board Members shall be assigned to the case by the Chief Administrative Appeals Judge for the purpose of deciding the motion.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 52 DCR 8405 (September 9, 2005) [EXPIRED]; as amended by Final Rulemaking published at 52 DCR 11093 (December 23, 2005).

7 DCMR § 266 STANDARDS OF REVIEW

266.1 The Board is not empowered to engage in a de novo proceeding or unrestricted review of a case brought before it, and is limited in its review to the record on appeal.

266.2 In reviewing the compensation orders issued by the Administrative Hearings Division the Board is authorized to review the findings of fact and conclusions of law upon which the compensation order is based, however:

(a) the Board shall not disturb findings of fact contained in the compensation order under review that are supported by substantial evidence, and

(b) the Board shall affirm a compensation order that is based upon substantial evidence and is in accordance with the governing Act and other applicable laws and regulations

266.3 In reviewing any other final order, other than a compensation order, issued by the Administrative Hearings Division from which appeal may be taken, the Board may set aside the final order where the Board determines that it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.

266.4 In the review of final decisions issued by the Office of Workers' Compensation, the Board may set aside any decision that the Board determines is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 52 DCR 8405 (September 9, 2005) [EXPIRED]; as amended by Final Rulemaking published at 52 DCR 11093 (December 23, 2005).

7 DCMR § 267 DECISION OF THE REVIEW PANEL

267.1 The designated Review Panel shall dispose of the matter under review, utilizing the standards of review contained in section 266 of this Chapter, by issuing a decision:

(a) affirming the compensation order or final decision;

(b) reversing it in whole or in part;

(d) remanding the case to the issuing Administrative Law Judge or claims examiner for further action as is warranted including, inter alia, further hearing and evidentiary development, additional findings of fact or conclusions of law, and the issuance of a new compensation order on remand.

267.2 If a substantial question of law or fact prevents the Review Panel from affirming the compensation order, decision or award under review, the Review Panel may order that it be set aside and remand the case for additional proceedings based upon specific findings of deficiencies in the compensation order, decision or award.

267.3 In appropriate cases, such as where the issues raised on appeal have been thoroughly discussed and disposed of in prior cases by the Board or the courts, or where the findings of fact and conclusions of law are both correct and adequately discussed in the compensation order under review, the Board in its discretion may issue a brief, summary written decision disposing of the appeal and/or adopting the compensation order under review.

267.4 In cases which cannot be disposed of in a summary manner, the Review Panel shall issue a written order which shall fully discuss the legal and factual basis for the decision.

267.5 The Review Panel shall only issue an amended compensation order where a remand to the Administrative Hearings Division or the Office of Workers' Compensation would be unnecessary (e.g. where there is but one action that the Review Panel decision would permit), and thus remand would be superfluous.

267.6 The Decision and Order of the Review Panel shall be final upon its issuance and shall constitute the final decision of the Board.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 52 DCR 8405 (September 9, 2005) [EXPIRED]; as amended by Final Rulemaking published at 52 DCR 11093 (December 23, 2005).

7 DCMR § 268 RECONSIDERATION

268.1 Any party may, within ten (10) calendar days from the date shown on the certificate of service of the Decision and Order of the Board or of any order issued by the Board, file a request for reconsideration thereof with the Clerk of the Board.

268.2 A reconsideration request shall be in writing, in the form of a motion, and shall:

(a) state the supporting rationale for the request;

(b) include any material pertinent to the request;

(d) be served on all other parties.

268.3 Any opposition to the motion for reconsideration shall be filed with the Board within five (5) calendar days of the date of service of said motion.

268.4 Unless otherwise directed by the Chief Administrative Appeals Judge, the Review Panel assigned to the case shall review and rule on the motion for reconsideration.

268.5 Reconsideration of a Decision and Order shall require the affirmative vote of at least two members of the Review Panel.

268.6 Notwithstanding the filing of a request for reconsideration, the Chief Administrative Appeals Judge may, sua sponte, order reconsideration en banc of a Review Panel Decision and Order within ten (10) days of any Review Panel decision.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 52 DCR 8405 (September 9, 2005) [EXPIRED]; as amended by Final Rulemaking published at 52 DCR 11093 (December 23, 2005).

7 DCMR § 269 ATTORNEY FEES

269.1 No legal fee for services rendered on behalf of a claimant in the successful pursuit or successful defense of an award shall be valid unless approved pursuant to 7 DCMR section 109 in the case of Public Sector appeals or 7 DCMR section 224 in the case of Private Sector appeals.

269.2 Notwithstanding the time limits proscribed by 7 DCMR section 109 or 7 DCMR section 224, an application to the Board for the award of an attorney's fee (including, where appropriate, request for reimbursement of costs) for legal work performed before the Board on behalf of a successful claimant shall be filed with the Board within ninety (90) calendar days after the claim for benefits becomes final and all appeals have been exhausted.

269.3 A fee application filed with the Board shall include only time spent on services performed while the appeal was pending before the Board, and shall be complete in all respects, containing all of the information specified at 7 DCMR section 109 or 7 DCMR section 224, as appropriate.

269.4 A fee application shall be served on all other parties, accompanied by a certificate of service. Any opposing party may respond to the fee application within seven (7) calendar days of receipt of the fee application, which shall be filed with the Board and served upon all other parties.

269.5 If a settlement petition submitted to the Office of Workers' Compensation for approval pursuant to D.C. Official Code section 32-1508(8) (2001) includes agreement as to the payment of an attorney's fee, there shall be no requirement that the Board separately consider or approve the award of an attorney's fee with respect to such settlement agreement.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 52 DCR 8405 (September 9, 2005) [EXPIRED]; as amended by Final Rulemaking published at 52 DCR 11093 (December 23, 2005).

7 DCMR § 270 JUDICIAL REVIEW

270.1 Any party adversely affected by a final decision of the Compensation Order Review Board may file an appeal thereof with the District of Columbia Court of Appeals within the time prescribed by the Rules of the Court.

270.2 A request for reconsideration of a Decision and Order pursuant to section 268 does not stay the running of the period for filing an appeal with the D.C. Court of Appeals.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 52 DCR 8405 (September 9, 2005) [EXPIRED]; as amended by Final Rulemaking published at 52 DCR 11093 (December 23, 2005).

7 DCMR § 271 DEFAULT IN THE PAYMENT OF COMPENSATION

271.1 In the event of default by an employer in the payment of compensation awarded pursuant to a Decision and Order issued by the Board, a request by the party to whom such compensation is payable for a declaration of such default, for the purpose of filing such declaration with the Superior Court of the District of Columbia pursuant to D.C. Official Code § 32-1519 (2001) shall be filed with and brought solely before the Administrative Hearings Divisions, and not before the Board.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 52 DCR 8405 (September 9, 2005) [EXPIRED]; as amended by Final Rulemaking published at 52 DCR 11093 (December 23, 2005).

7 DCMR § 299 DEFINITIONS

299.1 The definitions found in §2 of the Act [§36-301, D.C. Code, 1981 ed.], shall apply to this chapter. In addition, the following terms shall have the meaning ascribed:

Act - the District of Columbia Workers' Compensation Act, as amended, (D.C. Law 3-77, effective July 1, 1980, §36-301 et seq., D.C. Code, 1981 ed.).

Amendment - the Workers' Compensation Equity Amendment Act of 1990 (D.C. Law 8-198).

Attending Physician - the treating physician selected by the claimant to treat the injury or disability. Treatment given by a physician initially selected by the employer or on an emergency basis shall not be considered the selection of an attending physician.

Beneficiary - the surviving spouse, children or other relatives set forth in §10(d) of the Act [§36-309(4), D.C. Code, 1981 ed.] of an employee whose job related injury results in death and shall include any person claiming to be entitled to compensation for the death of an injured employee.

Benefits - compensation for death, wage loss, medical and hospital treatment, health insurance coverage, and vocational rehabilitation provided pursuant to the Act.

Binder - an agreement, or memorandum thereof, whereby an agency or carrier undertakes to provide coverage to an employer pending filing of notice of coverage with the Office.

Certified Safety Professional - any person who has been certified by the American Society of Safety Engineers, American Industrial Hygiene Association or other nationally recognized health and safety industry organization.

Claim - an application for benefits made by an injured employee or his or her beneficiary under Section 8, 9, and 10 of the Act (D.C. Code §36-307, 36-308, and 36-309, (1981) and (1991 Suppl.)).

Claimant - an individual who files a claim for benefits under Section 8, 9, or 10 of the Act (D.C. Code §36-307, 36-308, and 36-309).

Compensation Order - an order of a Hearing or Attorney Examiner of the Office which rejects a claim or which makes an award of compensation in respect of a claim under the Act.

Council - the National Council on Compensation Insurance, one of whose functions is to assign involuntary coverage to an employer for which coverage cannot be obtained on a voluntary basis in accordance with a voluntary plan.

Coverage - an insurance or other securities to secure the payment of benefits to the employees of employers as defined in this section.

Day - a calendar day, unless otherwise specified in the Act or this chapter.

Department - the Department of Employment Services.

Director - the Director of the District of Columbia Department of Employment Services or his or her designated agent.

Establishment - the place where the activities of an enterprise are conducted.

Final Order - an order issued by the Office which formalizes the outcome of an informal or vocational rehabilitation conference.

Formal Hearing - the formal adjudicative processes which are conducted by an Administrative Law Judge or a Hearing or Attorney Examiner in accordance with the District of Columbia Administrative Procedure Act, the Act, and subsequent amendments.

Hearing - the formal adjudicative process conducted by a Hearing or Attorney Examiner in accordance with the District of Columbia Administrative Procedure Act [§1-1501 et seq., D.C. Code, 1981], and the Act.

Hearings and Adjudication Section - the office responsible for conducting pre-hearing conferences and formal hearings on claims for benefits.

Identification Number - the employer's numerical designation of an establishment assigned by the Federal Government.

Injury - an injury as defined in §2(1) of the Act [§36-301(12), D.C. Code, 1981 ed.], which combined with a previous occupational or non-occupational disability or physical impairment causes substantially greater disability or death.

Insurance Commissioner - the head of the District of Columbia Department of Insurance and Securities Regulation agency.

Insurer - a "carrier" as defined in §2(c) of the act or a self-insured employer.

Interested Party - the District of Columbia, and an employer, a carrier, an employee, or a beneficiary whose rights or obligations pursuant to a claim under the Act shall be determined in a particular proceeding, including a mediation conference. Any person appearing at the mediation conference who does not have authority to settle is not an interested party.

Joint Pre-Hearing Statement Form - a form prepared by the party applying for formal hearing and signed by both interested parties that is required to be filed with OHA that includes a brief statement of facts; lists of all uncontested or stipulated facts, contested issues of fact and law, exhibits, witnesses; and statements that discovery is complete and that settlement was actively considered.

Maintenance Expense - an additional payment (not to exceed fifty dollars ($50) a week) made under §8(a) of the Act [§36-307(a), D.C. Code, 1981 ed.], by an employer to an injured employee which the Office has determined is necessary for the maintenance of an employee undergoing vocational rehabilitation.

Mediation - the process authorized by this Chapter whereby a claims examiner acts as a mediator to encourage and facilitate the resolution of workers' compensation disputes or claims between two (2) or more parties by assisting such parties in reaching a mutually acceptable and voluntary agreement, thereby dispensing with the need for adjudication by formal hearing.

Medical Services and Supplies - a medical, surgical, vocational rehabilitation services (including necessary travel expenses and other attendance or treatment), nurse and hospital service, medicine, crutches, false teeth or the repair thereof, and any artificial or prosthetic appliance.

Occupational Disease - a disease or infection generally recognized by the medical profession as a disease or infection arising naturally out of a particular employment. The term includes, but is not limited to, pneumoconiosis, silicosis, asbestosis, and radiation diseases.

Office - the Private Sector Branch of the Office of Workers' Compensation in the Labor Standards Division of the Department of Employment Services.

Office of Hearings and Adjudication (OHA) - the administrative entity responsible for conducting formal hearings on claims for benefits.

Physician - a physician, dentist, osteopath, podiatrist, or chiropractor licensed in:

(a) accordance with the District of Columbia Health Occupations Revisions Act of 1985, effective January 26, 1986 (D.C. Law 6-99; D.C. Code §2-3301 et seq.) or;

(b) any state or jurisdiction of the United States, in accordance with the laws of that state or jurisdiction.

Poster - the employer's notice of compliance with the Act, prescribed by the Department, which is to be conspicuously posted for the information of all employees in accordance with §37 of the Act [§36-336, D.C. Code, 1981 ed.].

Pre-Hearing Conference - a conference conducted by a Hearing or Attorney Examiner for the purpose of defining issues set for formal hearing and/or resolving issues prior to conducting the formal hearing.

Rehabilitation Conference - a conference conducted for the purpose of determining the adequacy, feasibility, and sufficiency of the vocational rehabilitation services.

Reinstatement - the restoring of coverage to effective status.

Scheduling Order - an Order issued by OHA to all interested parties within ten (10) working days of receipt. of an application for formal hearing which mandates the parties to submit a Joint Pre-Hearing Statement and sets a date by which a Motion to Amend the Joint Pre-Hearing Statement must be served on the opposing party, a date for the discovery period to close, and a date by which all documentary exhibits will be exchanged and submitted.

Second Injury - an injury as defined in Section 2 (1) of the Act (D.C. Code §36-301 (1981) which combined with a previous occupational or non-occupational disability or physical impairment causes substantially greater disability or death. For injuries occurring on or after April 16, 1999, the second injury fund is repealed.

Self-insurer - an employer who has supplied satisfactory proof of financial ability to pay and has been authorized under §35(a)(2) of the Act (§36-334(a)(2), D.C. Code, 1981 ed.) and §217 of this Chapter to pay compensation for disability or death benefits directly to a claimant or beneficiary instead of securing insurance coverage through a carrier.

Termination - the cessation of coverage for one of the reasons set forth in Section 216.8 of this chapter.

Utilization Review - evaluation of only the necessity, character, and sufficiency of both the level and quality of medically related services provided an injured employee based upon medically related standards (D.C. Code Section 36-301(r-1) and §36-307(b)).

Vocational Rehabilitation Services - those services required and designed, within reason, to return an injured employee to employment at a wage as close as possible to the wage or greater than what the employee may include the following: vocational counseling, retraining and job skills development, and job placement.

Working Days - the District of Columbia Government business days, excluding Saturdays, Sundays and legal holidays.

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 3213 (June 3, 1994); as amended by Final Rulemaking published at 47 DCR 6454 (August 11, 2000).

7-3 UNEMPLOYMENT COMPENSATION

7 DCMR § 300 UNEMPLOYMENT COMPENSATION BOARD

300.1 The provisions of this chapter are promulgated to implement the District of Columbia Unemployment Compensation Act, as amended, 49 Stat. 946 (1935); §46-301 et seq., D.C. Code, 1981 ed. (hereinafter referred to as "the Act").

300.2 The District of Columbia Unemployment Compensation Board (hereinafter referred to as "the Board") is authorized by §13(b) of the Act to prescribe all reasonable rules which may be necessary to implement the Act, subject to review by the Council of the District of Columbia for thirty (30) calendar days from the date of transmittal by the Chairman of the Board to the Chairman of the Council.

300.3 In accordance with §15(a) of the Act, the Board is composed of the Mayor or his or her designee as member ex-officio, two (2) representatives of employers and two (2) representatives of employees.

300.4 The Chairman of the Board shall vote only to break a tie.

300.5 Regular meetings of the Board shall be open to the public and are scheduled for the first Thursday of each quarter at 9:00. a.m. at 500 C Street, N.W.

300.6 When the necessity for special or emergency meetings arises, adequate and timely notice shall be provided to the public.

300.7 In accordance with §13(a) of the Act, Reorganization Plan No. 1 of 1978 and Reorganization Plan No. 1 of 1980, the Director is authorized and directed to administer the provisions of the Act pursuant to rules adopted by the Board.

7 DCMR § 301 BYLAWS OF THE UNEMPLOYMENT COMPENSATION BOARD

301.1 The Chair shall be the chief executive officer of the Board and shall supervise its affairs, preside at its meetings and exercise such other powers and duties as may from time to time be assigned by the Act.

301.2 In the absence of the Chair, his or her designee shall function as the Chair and also perform such other duties as shall be prescribed by the Chair or the Board.

301.3 The Chair of the Board may when he or she deems it appropriate, and shall, upon the written request of any two (2) or more members, call a special meeting of the Board for the purposes of transacting any business designated in the call.

301.4 The call for a special meeting may be hand delivered to each member at least two (2) days in advance of the meeting or may be mailed to the business or home address of each member at least five (5) days in advance of the meeting.

301.5 At any special meeting, no business shall be considered other than that specified in the call.

301.6 For the purpose of transacting business and conducting the affairs of the Board, a majority of the members shall constitute a quorum; Provided, that one (1) employee representative and one (1) employer representative is present at the meeting.

301.7 All meetings except Executive sessions of the Board shall be open to the public. All actions or decisions of the Board shall be formally taken at a public meeting.

301.8 Non-members shall be seated as spectators as far as the limitations of space and safety permit.

301.9 Except as otherwise provided in this chapter, at least ten (10) days advance notice shall be given for all meetings.

301.10 Non-members of the Board, at the discretion of the Chair, shall be permitted to present propositions to the Board for consideration. Non-members shall not have the right to vote.

301.11 The voting on all matters by the Board shall be by voice vote or by a show of hands, and the number of yeas and nays shall be entered in the minutes.

301.12 Any member may request a roll call vote at which time the vote cast by each member shall be recorded and entered into the minutes.

301.13 At the regular meetings of the Board, the following shall be the order of business:

(a) Roll Call;

(b) Reading and Approval of Minutes of Previous Meetings;

(d) Report of Chair;

(e) Report of Staff;

(f) Unfinished Business;

(g) New Business; and

(h) Adjournment.

301.14 Each member of the Board and staff shall sit in a designated place so that they are clearly distinguished from others attending meetings.

301.15 The Chair will normally invite public participants to make brief comments or ask questions during and before adjournment of each meeting.

301.16 In all proceedings of the Board, Robert's Rules of Order, Newly Revised, shall apply in all matters not expressly covered by this section or by contrary rule duly adopted.

301.17 This section, constituting the bylaws of the Board, shall be amended only by a vote of at least two-thirds (2/3) of its members at a regular meeting or a special meeting of which at least seven (7) days written notice has been given to all of the members.

301.18 Any individual who wishes to present proposed additions, amendments, or repealers to the Board for consideration may do so by submitting a written copy of the proposal to the Chair. The proposals shall be submitted by the Chair to the Board at its next regular meeting or at an earlier time if deemed appropriate by the Chair.

7 DCMR § 302 OFFICE OF UNEMPLOYMENT COMPENSATION

302.1 In accordance with Reorganization Plan No. 1 of 1980, the Director administers the Act through the Office of Unemployment Compensation.

302.2 Office hours shall be established by the Director and shall be posted and made known to all employers and employees subject to the provisions of the Act.

302.3 The Director shall consider a document timely filed when the transmitting envelope bears a postmark of not later than midnight of the day specified for the filing.

7 DCMR § 303 DISCLOSURE OF INFORMATION

303.1 All information, files and records of the Department of Employment Services reflecting information obtained from an employing unit or individual pursuant to administration of the Act by the Director shall be held confidential and shall not be disclosed nor open to public or private inspection by anyone, except as hereinafter provided in this section and §13(f) of the Act.

303.2 Information in the possession of the Director which concerns a claim for benefits or affects a charge to an employer's account shall be available for inspection by interested parties during office hours to the extent necessary for the proper representation of a party's position in any proceeding under the Act.

303.3 Upon request, an interested party (or a duly authorized representative who has supplied the Director with a letter of authorization and satisfactory proof of identity) shall be furnished copies of the information.

303.4 No information shall be released to any of the agencies, bureaus, or departments specified in §13(f) of the Act, unless a written request has been first submitted to the Director stating the specific information desired, the specific purpose for which the information is to be used, and the name of any person authorized by the principal to receive the information from the Director.

303.5 The Director shall charge a fee which shall be the cost of supplying or preparing the information.

303.6 Printed statements of general applicability to the public in the form of informational pamphlets or brochures, shall be made available to claimants and employers by the Director at no cost. The statements shall be of a general nature and shall not have the force or effect of law.

303.7 The Director may periodically compile and make available to the public, statistical data or other information which does not disclose the identity of any individual or employing unit.

303.8 With regard to disclosure of aggregated information obtained from employing units, information shall be deemed confidential if there are fewer than three (3) establishments in the aggregation or if any one (1) establishment represents eighty percent (80%) or more of the total employment in the aggregation.

7 DCMR § 304 CLAIMS FOR BENEFITS

304.1 In accordance with §11(a) of the Act, individuals may apply for benefits by filing a claim with the Director.

304.2 An initial claim may also be deemed by the Director to be an individual's registration for work.

304.3 All claims for benefits shall be made on forms prescribed by the Director.

304.4 Claimants shall state the following information with respect to initial claims:

(a) Claimant's name;

(b) Claimant's social security number;

(d) That the individual claims benefits for unemployment;

(e) That the individual is physically able to work;

(f) That the individual is available for work; and

(g) Any other information as the Director determines is reasonably necessary to establish the individual's eligibility for benefits, including the reason for separation given the claimant by his or her last employer.

304.5 In addition to the information required by §304.4, claimants shall state the following information with respect to continued claims:

(a) That the individual continued his or her claim for benefits;

(b) That the individual has registered for work;

(d) That during the week for which benefits are claimed, the individual has performed no services and had no earnings payable to him or her except those declared.

304.6 Each claimant shall be given notice of his or her rights and duties under the Act. The Director shall provide information regarding the various eligibility conditions, redetermination procedures, and right to appeal.

304.7 Any individual who claims a dependent's allowance pursuant to §§1(s) and 7(f) of the Act shall file with his or her initial claim a signed statement identifying his or her dependent relatives.

304.8 When an individual files a claim for benefits, the Director shall notify the last employing unit, and request wage and separation information on a form designed for that purpose.

304.9 Each employing unit shall respond within seven (7) calendar days from the date of personal service or of mailing the request to the last known address of the employer.

304.10 An employer who fails to either furnish a notice or Separation Report to the Director, that the employee was separated under conditions which may subject him or her to disqualification for benefits under §10 of the Act [D.C. Code 1981, §46-111] shall be presumed to have admitted that the employee is not subject to disqualification under any provision of §10.

304.11 Any employer who is adversely affected by the provisions of §304.10 shall have the right to appeal the determination.

7 DCMR § 305 DETERMINATION OF CLAIMS

305.1 In accordance with §11(b) of the Act, the Director shall make an initial determination of eligibility promptly.

305.2 For purposes of this section, "predetermination fact-finding interview" is an informal hearing at which evidence is received. This evidence shall be used to determine whether an otherwise eligible claimant is subject to disqualification.

305.3 The Director shall notify the claimant and his or her most recent employer of the time and place of the predetermination fact-finding interview.

305.4 The claimant's most recent employer shall be responsible for presenting data at the predetermination fact-finding interview to make clear his or her objections to the claim. The employer's minimum obligation shall be to inform the Director and the claimant of any and all disqualifying factors.

305.5 The Director's initial determination of eligibility shall include the following:

(a) Whether or not benefits may be payable;

(b) The week when payments will commence if claimant is otherwise eligible;

(d) The weekly benefit amount.

305.6 When the Director has made a determination of an individual's right to benefits, he or she shall promptly notify the claimant and interested parties of the determination and the reasons for the determination.

7 DCMR § 306 FIRST LEVEL APPEALS

306.1 In accordance with §11(b) of the Act, any party may file an appeal from a determination within ten (10) calendar days after the mailing of notice of the determination to the party's last known address or within ten (10) calendar days of actual delivery of the notice.

306.2 When a determination, redetermination, or decision is made that benefits are due, the benefits shall immediately become payable and continue to be payable to the unemployed individual, subject to the limitations imposed by the individual's monetary entitlement, as long as the individual continues to be otherwise eligible.

306.3 An impartial hearing on the appeal shall be scheduled and written notice of the hearing shall be given to all interested parties.

306.4 In any proceeding under §11 of the Act, a party may appear for himself or herself, or be represented by Counsel or other individual whom the party chooses.

306.5 No hearing examiner shall participate in the hearing of any appeal in which he or she has a financial interest or any other interest which would tend to prevent an impartial hearing.

306.6 Challenges to the impartiality of any hearing examiner shall be heard and decided by the Director.

306.7 The hearing examiner shall at all times maintain a posture of impartiality and shall side neither with the appellant nor appellee.

7 DCMR § 307 CONDUCT OF HEARINGS

307.1 All hearings before a hearing examiner shall be conducted so as to ensure the protection of the substantial rights of the parties and the presentation of all relevant issues for consideration and incorporation in any decision.

307.2 All facts used as the basis of a decision shall be clearly identified in the record.

307.3 If any party fails without good cause to appear at the scheduled time of hearing, the hearing examiner may continue the hearing to another date and time or may order the taking of the testimony as is available and proceed with a determination of the appeal on the basis of the evidence then and there available; Provided, that all requirements imposed by the Act and this chapter are met.

307.4 A case may be reopened by a party who did not attend a scheduled hearing only if the party gives written notice to the Director within ten (10) calendar days after the date of the hearing that his or her failure to attend the hearing was for reasons which constitute good cause, as determined by §316.4 of this chapter.

307.5 A request for reopening received before the decision of the hearing examiner is mailed, shall be decided by the examiner before whom the case is pending.

307.6 A request for reopening received after the decision of the hearing examiner was mailed to the party shall constitute an appeal to the Director, and the Director shall rule upon the request in connection with that appeal.

307.7 Written notice of the request for reopening shall be given to each of the parties, and shall include the reasons for the request and a clear statement of appeal rights.

307.8 If a request is allowed, the case shall be reopened, a new hearing shall be scheduled, and written notice of the new hearing shall be given to each of the parties.

307.9 At any reopened hearing, each party shall be given the opportunity to object to the reopening.

307.10 Each party shall have the right to do the following:

(a) To present an affirmative case or defense by oral and documentary evidence;

(b) To submit rebuttal evidence; and

307.11 An official record of each hearing shall be maintained in each case, including, testimony exhibits. It shall not be necessary to make a transcription of the proceeding.

307.12 Upon request, any claimant (or the claimant's legal representative) shall be supplied with information from the record to the extent necessary for the proper presentation of the claim. The Director shall charge a fee to cover the cost for a transcription of a proceeding.

307.13 Upon the written request of a party to an action, a subpoena may be issued pursuant to §13(a) of the Act to compel attendance of witnesses and the production of books, papers, correspondence, memoranda, or other records necessary for evidence in connection with a disputed claim.

307.14 The parties to an appeal, with the consent of the hearing examiner to whom the case has been assigned, may stipulate the pertinent facts in writing. The hearing examiner to whom the case has been assigned, may stipulate the pertinent facts in writing. The hearing examiner may then decide the appeal on the basis of the stipulations or may set the appeal down for hearing and take further testimony.

307.15 In accordance with §11(g) of the Act, witnesses (other than witnesses who are salaried employees of either the government of the United States or the District of Columbia) who are subpoenaed and who attend the hearing of any appeal shall be entitled upon application to receive five dollars ($5.00) for each day of attendance.

7 DCMR § 308 DECISION OF HEARING EXAMINER

308.1 No decision or order shall be issued except upon the consideration of the exclusive record in each case.

308.2 Each decision shall be supported by findings of fact based on evidence which is reliable, probative, and substantial.

308.3 Each decision or order rendered by a hearing examiner shall be in writing and shall contain findings of fact and supporting conclusions of law. The findings of fact shall consist of a concise statement of conclusions upon each contested issue of fact.

7 DCMR § 309 SECOND LEVEL APPEALS

309.1 In accordance with §11(e) of the Act, a party may petition the Director for reconsideration of the decision of a hearing examiner.

309.2 A petition for reconsideration shall be filed within ten (10) calendar days of the mailing of the decision.

309.3 Each petition for reconsideration based upon newly discovered evidence shall be verified under oath and shall set forth the nature of the evidence in detail, showing clearly that it is in fact newly discovered.

309.4 Upon receipt of a petition for reconsideration, the Director shall consider all matters presented by the record and decision, and on the basis of the consideration, the Director shall affirm, reverse, or modify the prior decision.

309.5 The Director may set the decision aside and order a rehearing or the taking of additional evidence before the same hearing examiner, a different hearing examiner, or the Director.

309.6 All final decisions rendered by the Director affirming, reversing, or modifying any decision of a hearing examiner shall become effective immediately.

309.7 Prompt notice of the decision of the Director shall be mailed or delivered to the petitioner and other parties in interest.

7 DCMR § 310 JUDICIAL REVIEW OF FINAL DECISIONS

310.1 After the final decision of the Director, an aggrieved party may petition the District of Columbia Court of Appeals for review of the final administrative action.

310.2 A petition for review shall be filed within fifteen (15) days after the actual delivery of the decision or after the mailing of the decision to the appellant's last known address.

7 DCMR § 311 VOLUNTARY LEAVING

311.1 Pursuant to §10(a) of the Act, the Director shall disqualify for benefits any individual who left his or her most recent work voluntarily without good cause connected with the work.

311.2 In determining whether a leaving disqualifies an individual for benefits, it shall appear from the circumstances of a particular case that the leaving was voluntary in fact, within the ordinary meaning of the word "voluntary".

311.3 A leaving shall be presumed to be involuntary unless the claimant acknowledges that the leaving was voluntary or the employer presents evidence sufficient to support a finding by the Director that the leaving was voluntary.

311.4 If it is established that a leaving was voluntary, the claimant shall have the responsibility of presenting evidence sufficient to support a finding by the Director of good cause connected with the work for the voluntary leaving.

311.5 The circumstances which constitute good cause connected with the work shall be determined by the Director based upon the facts in each case. The test shall be, "what would a reasonable and prudent person in the labor market do in the same circumstances?"

311.6 The following shall not constitute good cause connected with the work for voluntary leaving:

(a) Refusal to obey reasonable employer rules;

(b) Minor reduction in wages;

(d) Marriage or divorce resulting in a change of residence;

(e) General dissatisfaction with work;

(f) Resignation in order to attend school or training; and

(g) Personal or domestic responsibilities.

311.7 Reasons considered good cause connected with the work for voluntary leaving include, but are not limited to, the following:

(a) Racial discrimination or harassment;

(b) Sexual discrimination or harassment;

(d) Working in unsafe locations or under unsafe conditions;

(e) Illness or disability caused or aggravated by the work; Provided, that the claimant has previously supplied the employer with a medical statement; and

(f) Transportation problems arising from the relocation of the employer, a change in the primary work site, or transfer of the employee to a different work site; Provided, that adequate, economical, and reasonably distanced transportation facilities are not available.

311.8 If an employee resigned under threat of imminent termination, the separation shall be considered a constructive discharge for misconduct and a determination shall be made by the Director in accordance with §312.

311.9 RESERVED

311.10 When an individual is temporarily separated from employment by reason of pregnancy and is unemployed within the meaning of the Act, able, available and actively seeking work, that individual may be entitled to benefits. A determination shall be made as to the separation issue but claimant shall not be automatically subject to disqualification for voluntarily quitting under §10(a) of the Act [Sec. 46-111(a), D.C. Code 1981, ed.]

311.11 A voluntary quit because of pregnancy shall be treated like any other voluntary quit because of physical condition or disability. The claims examiner shall inquire into the claimant's availability and availability for suitable work and make a determination regarding eligibility for benefits in accordance with the Act and this chapter.

7 DCMR § 312 MISCONDUCT

312.1 Pursuant to §10(b) of the Act, the Director shall disqualify for benefits any individual discharged for misconduct occurring in his/her most recent work. The nature of the disqualification shall be in accordance with §10(b) (1) or §10(b) (2) of the Act as defined in §312.3, §312.4, §312.5 and §312.6 of this section.

312.2 The party alleging misconduct shall have the responsibility to present evidence sufficient to support a finding of misconduct by the Director.

312.3 For purposes of §10(b) (1) of the Act, the term "gross misconduct" shall mean an act which deliberately or willfully violates the employer's rules, deliberately or willfully threatens or violates the employer's interests, shows a repeated disregard for the employee's obligation to the employer, or disregards standards of behavior which an employer has a right to expect of its employee.

312.4 Gross misconduct may include, but is not limited to the following:

a. Sabotage;

b. Unprovoked assault or threats;

c. Arson;

d. Theft or attempted theft;

e. Dishonesty;

f. Insubordination;

g. Repeated disregard of reasonable orders;

h. Intoxication, the use of or impairment by an alcoholic beverage, controlled substance, or other intoxicant;

i. Use or possession of a controlled substance;

j. Willful destruction of property;

k. Repeated absence or tardiness following warning.

312.5 For purposes of §10(b) (2) of the Act, the term "other than gross misconduct" shall mean an act or omission by an employee which constitutes a breach of the employee's duties or obligations to the employer, a breach of the employment agreement or contract, or which adversely affects a material employer interest. The term "other than gross misconduct" shall include those acts where the severity, degree, or other mitigating circumstances do not support a finding of gross misconduct.

312.6 Other than gross misconduct may include, but is not limited to the following:

a. Minor violations of employer rules;

b. Conducting unauthorized personal activities during business hours;

c. Absence or tardiness where the number of instances or their proximity in time does not rise to the level of gross misconduct;

d. Inappropriate use of profane or abusive language.

312.7 If a violation of the employer's rules is the basis for a disqualification from benefits pursuant to §10(b) (1) or §10(b)(2) the Act, the Director shall determine the following:

(a) That the existence of the employer's rule was known to the employee:

(b) That the employer's rule is reasonable; and

312.8 In an appeal hearing, no misconduct shall be presumed. The absence of facts which affirmatively establish misconduct shall relieve a claimant from offering evidence on the issue of misconduct.

312.9 In an appeal hearing, the persons who supplied the answers to questionnaires or issued other statements alleging misconduct shall be present and available for questioning by the adverse party.

312.10 In an appeal hearing, prior statements or written documents, in the absence of other reliable corroborating evidence, shall not constitute evidence sufficient to support a finding of misconduct by the Director.

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 4167-69(June 24, 1994).

7 DCMR § 313 REFUSAL OF SUITABLE WORK

313.1 Pursuant to §10(c) of the Act, the Director shall disqualify any individual otherwise eligible for benefits who fails to apply for or accept suitable work, unless the Director determines that good cause for the failure exists.

313.2 The Director shall determine whether work is suitable after considering the following:

(a) The physical fitness and prior training, experience, and earnings of the individual;

(b) The distance of the place of work from the individual's place of residence; and

313.3 The following circumstances shall not constitute "good cause" for failure to apply for or to accept suitable work:

(a) Slight differences in wages or hours of work;

(b) Difference in locality of work where transportation facilities are adequate, economical, and reasonably distant.

(d) General or personal objections to employer or to fellow workers.

7 DCMR § 314 REFUSAL OF TRAIUING REEMPLOYMENT SERVICES

314.1 In accordance with §10(e) of the Act, the Director shall hold ineligible for benefits any otherwise eligible individual who fails without good cause to attend a training or retraining course; provided, that the course is recommended by the Director and the course is available at public expense.

314.2 The Director shall hold ineligible for benefits any otherwise eligible individual who fails without good cause to participate in job counselling or other reemployment services; provided, that such individual has been identified as in need of such counselling or reemployment services through a profiling system established by the Director to identify individuals who will be likely to exhaust their regular benefits.

314.3 The following shall not constitute good cause for failure to attend training or for refusal to participate in job counselling or other reemployment services.

(a) Refusal to attend at any time without strong compelling reason and excuse;

(b) Personal inconvenience;

(d) Personal dislike of job counselling, reemployment services, or counsellor;

(e) Disbarment from recommended training, job counselling, or reemployment services as a result of improper conduct or action on the part of a claimant.

314.4 For purposes of this section, good cause for failure to attend training or participate in job counselling or other reemployment services includes, but is not limited to, the circumstances set forth in §316.4.

314.5 The ineligibility from benefits for refusal of training or refusal to participate in job counselling or other reemployment services shall be imposed with respect to any week in which the failure occurred.

History

SOURCE: Notice of Final Rulemaking published at 43 DCR 1470 (March 22, 1996).

7 DCMR § 315 LABOR DISPUTES

315.1 In accordance with §10(f) of the Act, the Director shall disqualify for benefits any individual who is unemployed as a direct result of a labor dispute, other than a lockout, still in active progress in the establishment where the individual is or was last employed.

315.2 The labor dispute disqualification shall not apply with respect to a claimant if the following is shown to the satisfaction of the Director:

(a) That the claimant is not participating in or directly interested in the labor dispute which caused his or her unemployment; and

(b) That the claimant does not belong to a grade or class of workers of which, immediately before the commencement of the labor dispute, there were members employed at the premises at which the dispute occurs, any of whom were participating in or directly interested in the dispute.

315.3 The labor dispute disqualification shall be imposed with respect to any week for which the Director makes appropriate findings.

7 DCMR § 316 REGISTRATION FOR WORK

316.1 In accordance with §9(d) of the Act, the frequency and manner requirements for claimants to register and inquire for work at a public employment office in the District of Columbia are set forth in this section.

316.2 Each claimant shall register and inquire for work as specifically instructed by the Director.

316.3 Upon a finding that good cause exists, the Director may permit a claimant to register and inquire for work at any other public employment office or may excuse failure to comply with the registration requirements.

316.4 Justifiable reasons which the Director may consider as constituting good cause for failure of a claimant to register and inquire for work as instructed include, but are not limited to the following:

(a) Acts of God which prevented the claimant from safely reaching a public employment office;

(b) Working;

(d) Reasonably relying on a promise of work which did not materialize;

(e) Failure by the Director to provide services when scheduled, including closing of Department of Employment Services office.

(f) Personal physical incapacity;

(g) The physical incapacity or death of a relative or ward of either the claimant or claimant's spouse;

(h) The death of any person living in claimant's household;

(i) Attendance at a funeral; and

(j) Jury duty.

316.5 A claimant who fails to register and inquire for work as instructed by the Director may be held ineligible for each week in which the registration requirement is not met.

7 DCMR § 317 PENSIONS AND ANNUITIES

317.1 In accordance with §7(c) of the Act, the Director shall reduce the benefits payable to an individual with respect to any week by the amount received or applied for with respect to that week as a deductible retirement pension or annuity.

317.2 The Director shall develop a pension conversion table showing the correlation between the amount received on a monthly basis as a deductible retirement pension or annuity and the prorated weekly amount of the retirement pension or annuity which is reasonably attributable to a week.

317.3 A claimant whose weekly deductible retirement pension or annuity is equal to or greater than the weekly benefit amount which would be payable to the claimant shall be ineligible to receive any benefits for the week.

317.4 A claimant whose weekly benefit amount exceeds the weekly deductible retirement pension or annuity amount shall be entitled to receive the difference as a weekly benefit.

7 DCMR § 318 CONTRIBUTIONS

318.1 Pursuant to §3 of the Act, an employer is liable for contributions to the District Unemployment Fund if he or she employs one (1) or more individuals in any employment in the District of Columbia.

318.2 All services in employment shall be presumed to be covered unless specifically excluded by §1(b) of the Act.

318.3 Where facts are in dispute, the Director shall determine, in accordance with §1(b) of the Act, whether the services of an individual constitute employment and the identity of the employer of that individual.

318.4 Where doubt exists between two (2) or more employers regarding which is the employer of an individual, an agreement may be made stipulating which employer shall file the return and make the contributions required by the Act. The Director shall consider the prior written agreement of the employers in determining who is the liable employer.

318.5 Where an individual performs services in employment for two (2) or more employers during the same period, each employer shall make contributions on the basis of each employer's payments to the individual.

318.6 The Director shall determine, in accordance with §1(b) (2) of the Act, whether an individual's service in employment is localized in the District of Columbia or elsewhere.

318.7 In determining where an individual's service is localized, the Director shall balance the interest of a claimant in receiving benefits pursuant to the Act and the interest of an employer in making contributions to a single jurisdiction for all the services of an individual regardless of where the service is performed.

7 DCMR § 319 EMPLOYER RECORDS

319.1 In accordance with §17(a) of the Act, employers shall maintain work records for all employees.

319.2 Retained payroll sheets, cards, or other forms maintained by an employer in the usual course of business shall constitute sufficient work records; Provided, that the records contain the following information:

(a) Name and social security number of each employee;

(b) Beginning and ending dates of each pay period;

(d) Dates of employment and separation.

7 DCMR § 320 EMPLOYER REPORTS

320.1 All reports deemed necessary by the Director for the effective administration of the Act, pursuant to §§4(a) and 17 of the Act, shall be filed by employers upon forms supplied by the Director.

320.2 Employer reports shall contain all information requested by the Director.

320.3 Each employer shall, not later than the last day of the month following the close of each calendar quarter, make a report of and pay the contributions which shall have accrued with respect to wages paid during the quarter to the Director.

320.4 The Director may extend the time for filing quarterly reports for all employers for a period of not more than thirty (30) calendar days if the Director finds that either the purposes of the Act would be defeated or the contribution rate appeal rights of employers established in §3(c) (10) of the Act would be unduly burdened or jeopardized by requiring timely filing of the quarterly reports.

320.5 After making the findings specified in §320.4, the Director shall simultaneously publish notice of the extension of time to file employers' quarterly reports in a newspaper of general circulation in the District of Columbia and in the D.C. Register at least twenty-one (21) days immediately preceding the last day of the month following the close of the calendar quarter.

7 DCMR § 321 WAGES

321.1 In accordance with §1(c) of the Act, the term "wages" includes all remuneration for personal services paid by an employer to an employee.

321.2 All wages paid shall be reported to the Director.

321.3 If compensation is paid in any medium other than cash, the employer shall include the cash value of the non-monetary remuneration in the amount reported as wages.

321.4 If the cash value of non-monetary remuneration is agreed to by the employer and the employee, the agreed value shall be reported as wages.

321.5 If the cash value of non-monetary remuneration is not agreed to, the employer shall place a reasonable value upon the thing used in the place of money and report that amount as wages.

321.6 For the purpose of computing contributions, the cash value of remuneration paid as food and lodging shall be deemed reasonable if reported at not less than the following values:

(a) Full Board and Room …………………..$29.00 per week;

(b) Board (3 meals per day)………………...$3.25 per day;

(d) Lodging....................................................$9.75 or $1.50 per day;

321.7 If the agreed cash value for food and lodging is more than the amounts set forth in §321.6 the higher amount shall be reported.

321.8 The following amounts shall be reported as wages;

(a) Amounts paid to an employee while an employee is on vacation or sick leave;

(b) Prizes awarded employees in connection with services performed in the business; and

(c) Sums disbursed by an employer based on the employers addition of a certain percentage to the customer's bill as a tip.

321.9 Drawing accounts shall be reported as wages at the amount actually drawn by the employee regardless of the status of the account between employer and employee at the close of the pay period.

321.10 The following amounts shall not be reported as wages:

(a) Any definite allowance which represents no profit to the employee but is used by the employee to meet expenses of the employer's business.

(For example -- an allowance for automobile, oil, and gas to a salesman required to work in his or her own car over an extended territory; all transit flash passes or tokens; telephone in an employee's residence for the employer's convenience; and entertainment money expended on the employer's customers);

(b) Where an employer requires an employee to wear a special uniform and the employer launders or pays for the laundering of the uniform, the amount paid for laundering;

(d) So-called "supper money", being an allowance for a meal when the employee works overtime and is thus required to eat at other than his or her regular boarding or living place.

321.11 Severance pay constitutes earnings pursuant to §1(d) of the Act. Employers shall report all severance payments on the quarterly wage reports.

7 DCMR § 322 CONTRIBUTION RATE REVIEW

322.1 In accordance with §3(c) (10) of the Act, the Director shall appoint a Contribution Rate Review Committee to hear and decide appeals by employers from contribution rate determinations.

322.2 Requests for review and redetermination of contribution rate determinations shall be filed within thirty (30) days after the mailing of notice of rate determinations to an employer's last known address or within thirty (30) days after delivery of the notice in the absence of mailing.

322.3 The Director may voluntarily adjust the contribution rate determination upon receipt of a request for review.

322.4 If it is not apparent from the employer's account that an adjustment is appropriate, the Director shall grant an opportunity for hearing before the Contribution Rate Review Committee.

322.5 The Contribution Rate Review Committee shall consist of three (3) employees of the Director. The composition of the Committee shall be as follows:

(a) One (1) member shall have knowledge of the employer accounting process;

(b) One (1) member shall have knowledge of the overall financial accounting system; and

322.6 The decision of the Contribution Rate Committee shall be in writing and shall be supported by substantial evidence in the record.

322.7 The decision of the Contribution Rate Committee shall be the final agency action, shall be written, and shall be supported by substantial evidence in the record.

322.8 Judicial review of the decision of the Contribution Rate Review Committee may be sought by filing an application for review with the District of Columbia Court of Appeals within fifteen (15) days after the mailing or receipt of notice of the decision.

7 DCMR § 323 COLLECTION PROCEDURES

323.1 At any time after an employer fails to file reports or pay contributions required by the Act, the Director shall inform the employer of such failing by mailing written notice of such failing to the employer's last known address. Such notice shall be on forms of general applicability and shall include information regarding the quarters for which reports were not filed and the amount of contributions, interest, and penalties owed. Such notice shall demand filing of unfiled reports and payment of all sums owed within ten (10) calendar days from the date of mailing of the notice.

323.2 If the employer fails to respond to the notice by filing reports and paying contributions, interest, and penalties, the Director may file liens, bring civil actions, or otherwise take any lawful action to compel the filing of reports and the payment of contributions, interest, and penalties.

323.3 In cases where the Director determines that collection by levy, distraint, or other extraordinary process may be necessary, a Notice of Delinquency shall be served in person by the Director's designee or by registered mail, return receipt requested, at the employer's last known address. In the case of a Notice served by mail which is refused or otherwise not deliverable, the Director shall serve a second Notice of Delinquency by first class mail, postage prepaid, at the employer's last known address. Such Notice of Delinquency shall be in addition to the general notice set forth in §323.1.

323.4 The Notice of Delinquency shall contain the following:

(a) A statement of the amount due for contributions plus interest and penalties;

(b) A demand for payment of the amount due;

(c) A statement that the employer has ten (10) calendar days from the date of the receipt of the notice to respond to the Director as provided in this section; and

(d) A statement that at the end of the ten (10) calendar day period, the Director may attempt to collect the amount due by any means authorized by the Act and without further demand or notice to the employer.

323.5 Within ten (10) calendar days from receipt of the Notice of Delinquency, the employer shall pay in full the amount due for contributions plus interest and penalties unless the employer agrees in writing to a payment schedule, approved by the Director, by which the employer will pay the amount due, together with interest and penalties, in regular installments.

323.6 The ten (10) calendar day period during which an employer must respond to a Notice of Delinquency shall be computed as follows:

(a) The period shall begin to run on the day after the receipt of the notice by registered mail, return receipt requested; or on the fourth (4th) day after mailing of the notice by first class mail, postage prepaid;

(b) Saturdays, Sundays, and legal holidays shall be counted except that if the last day for responding to a notice falls on a Saturday, Sunday, or legal holiday, the time period shall end on the next day which is not a Saturday, Sunday, or legal holiday; and

323.7 The Director may authorize an employer to pay delinquent amounts by regular monthly installments of such duration as will liquidate the delinquency in the shortest amount of time deemed reasonable by the Director. In determining whether to enter into an installment agreement, the Director shall consider:

(a) The amounts owed and age of the debt;

(b) The employer's past history of payment and compliance with any prior installment payment plans;

(c) The employer's financial condition and, particularly, the prospects that the employer will be able to fulfill its obligations under the installment plan; and

(d) Any other factors which may be brought to the Director's attention which might impact upon the employer's ability to meet its installment obligations.

323.8 In any installment payment agreement, the employer shall acknowledge that default in any installment payment or in any future filing of required reports or payment of contributions voids the agreement and the Director may institute any collection procedure permitted by the Act without further notice or demand to the employer.

323.9 The Director may renegotiate an installment payment schedule if the Director determines that changed circumstances of the employer warrant changes to the plan. However, renegotiation of an installment schedule may not extend the time period beyond twenty-four (24) months from the conclusion date of the original agreement.

323.10 If an employer fails to respond to the Director's Notice of Delinquency and demand for payment of delinquent contributions, interest, and penalties, or if an employer fails to make a scheduled installment payment, the Director, without further notice or demand to the employer, may attempt to collect the overdue payments by any method authorized by the Act.

323.11 The Director may levy an employer's bank account(s) by serving a Notice of Levy on the appropriate officer of the bank.

323.12 The Director may levy an employer's contract(s) with any agency of the Government of the District of Columbia by serving a Notice of Levy on the official of said agency authorized to accept said Notice.

323.13 The Director may levy upon property belonging to an employer by serving a Notice of Levy on the custodian of said property. Failure of the custodian to honor the levy shall result in the custodian's liability for the delinquent contributions, interest, and penalties, as generally set forth in D.C. Code §47-1704 (1987).

323.14 The Director shall cause the examination of any property seized pursuant to §323.13 to determine its condition, and shall keep records of condition, storage location, and any other actions necessary to maintain the property prior to sale.

323.15 An employer whose property has been seized pursuant to §323.13 may redeem the property prior to the time it is sold by paying the Director the full amount of delinquent contributions, interest, and penalties owed and any costs incurred by Director in seizing and storing the property.

323.16 No earlier than ten (10) calendar days following seizure of property pursuant to §323.13, the Director shall commence the process to sell the property, as generally set forth in D.C. Code §47-1702 (1987). If the Director determines that adjournment of the sale will best serve the interest of the District Unemployment Fund (as defined by section 6 of the Act), the Director shall have the power to adjourn the sale until such time as the Director determines that the best interest of the District Unemployment Fund would be served by continuation of the sale of the property.

323.17 The proceeds of any sale of property under §323.16 shall be allocated as follows:

(a) Costs of the sale, including costs of seizing, storing, advertising, and auctioneer fees;

(b) Delinquent penalties, interest, and contributions in that order; and

(c) Any excess funds remaining after the two foregoing provisions have been complied with shall be forwarded to the employer from whom the property was seized.

323.18 The Director shall issue a Certificate of Sale to the purchaser of property at the sale and shall prepare ownership documents for property conveyed by sales made pursuant to §323.16. All property shall be sold "as is" and "where is" without any guarantee or warranty express or implied. The Director shall sell only the right, title, and interest of the delinquent employer in the property, and the employer's interest will be offered subject to any prior outstanding mortgages, encumbrances, or other liens.

History

SOURCE: Notice of Final Rulemaking published at 35 DCR 8833 (December 23, 1988)

7 DCMR § 399 DEFINITIONS

399.1 The terms defined in the Act shall have the meanings set forth in the Act. In addition, when used in the Act or this chapter, the following words defined in this section shall have the meaning ascribed:

Act - the District of Columbia Unemployment Compensation Act, as amended, 49 Stat. 946 (1935), §46-301, et seq., D.C. Code, 1981 ed.

Active Progress - the action being taken toward the settlement of a labor dispute, including but not limited to, negotiating, picketing, and court proceedings.

Claim - an application by a claimant for the determination of eligibility for benefits, benefit amount, and duration of benefits which certifies to the beginning date of a period of unemployment.

Claimant - an individual who files a claim for unemployment compensation.

Continued Claim - a week of unemployment for which waiting period credit or payment of compensation is requested.

Deductible Retirement Pension or Annunity - any amount received or applied for with respect to any week after March 31, 1980, as a retirement pension or annunity under a public or private retirement plan including any such sum under Title II of the Social Security Act.

Director - the Director of the District of Columbia Department of Employment Services or his or her designee.

Employer's Reserve - an employer's cumulative contributions for taxable wages subsequent to May 31, 1939, less the cumulative benefits since July 1, 1939, as chargeable to his or her experience rating account through the computation date of each year.

Experience Rating Account - the account established and maintained by the Director pursuant to §3(c)(1) of the Act which shows each employer's cumulative contributions, cumulative benefit charges, average annual payroll, reserve, reserve ratio, and contribution rate for each calendar year or part thereof.

Initial Claim - the first claim filed in benefit year to request a determination of entitlement to and eligibility for compensation which results in an appealable determination.

Interested Party - a claimant or an employer whose statutory rights or obligations pursuant to administration of the Act may be affected by the outcome or disposition of a determination, redetermination, or decision.

Labor Dispute - Any controversy concerning terms, tenure or conditions of employment or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee.

Lockout - the withholding of otherwise available work by an employer.

Month - (a) with respect to employees paid on a weekly basis, that period covered by all the weeks which commence within the calendar month or (b) with respect to employees paid on any basis except a weekly basis, a calendar month.

Reserve Ratio - the employers reserve in relation to his or her average annual payroll.

Severance Pay - a payment in addition to any back wages due made by an employer to an employee whose employment is permanently terminated by the employer.

Waiting Period - the first week of eligibility within a benefit year for which compensation is not payable in accordance with §9(e) of the Act.

History

SOURCE: Notice of Final Rulemaking published at 35 DCR 2375(April 1, 1988).

7-4 YOUTH EMPLOYMENT: SUMMER YOUTH JOBS PROGRAM

7 DCMR § 400 AUTHORITY

400.1 These regulations are issued pursuant to §2(a), and (f) of the Youth Employment Act of 1979 (D.C. Law 3-46) approved November 9, 1979.

7 DCMR § 401 SCOPE AND PURPOSE

401.1 These regulations implement §2(a) (1), Summer Youth Jobs of the Youth Employment Act of 1979.

401.2 It is the purpose of the Summer Youth Jobs Program to provide summer employment for District of Columbia youth between fourteen (14) and twenty-one (21) years of age. Youth employed in the Summer Youth Jobs Program pursuant to this Act shall be paid at an hourly rate equal to the Federal hourly minimum wage.

7 DCMR § 402 NON-DISCRIMINATION AND EQUITABLE SERVICES

402.1 No person shall, on the grounds of race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, family responsibilities, physical handicap, matriculation, political affiliation or belief be discriminated against, or denied employment as a participant, administrator, staff-person, in connection with any program under the Act, except that where the Act specifies or limits the age range of the eligible population.

402.2 YES, the Department, Contractors, Vendors, Recipients, Sub-Recipients under the Act shall comply with the following laws:

(a) Human Rights Law, Title 34 of the District of Columbia;

(b) Titles VI, VII of the Civil Rights Act of 1964;

(d) The Rehabilitation Act;

(e) Title IX of the Education Amendments Act of 1972; and

(f) Other applicable non-discrimination laws.

402.3 All programs, to the maximum extent feasible, shall contribute to the elimination of sex stereotyping. YES, in planning its program activities, shall do the following:

(a) Recruit for, and encourage, female entry, through such means as training, into occupations with skill shortages where women represent less then twenty-five percent (25%) of the labor force;

(b) Recruit for, and encourage, male entry, through such means as training, into occupations with skill shortages where men represent less than twenty-five percent (25%) of the labor force; and

402.4 No person shall be denied training or employment in any program because of artificial barriers to employment.

402.5 YES shall analyze and re-evaluate job descriptions and qualification requirements at all levels of employment, including civil service requirements and practices relating thereto, with a view toward removing artificial barriers to employment.

402.6 Where tests or selection procedures have an adverse impact on any race, sex, or national origin group, the tests or selection procedures shall be validated as to job relatedness.

402.7 Tests or selection procedures which have been validated shall not be considered to be an artificial barrier to employment.

402.8 YES shall establish procedures to ensure against discrimination and foster equal employment opportunity.

402.9 YES shall assign EEO responsibility to an individual or staff, or if this is not practicable, explain why in the Master Plan.

402.10 Members of the eligible populations shall be provided maximum feasible opportunities for employment in the administration of programs, including staff positions in which they will have opportunities for occupational training and career advancement.

402.11 YES shall make special efforts to recruit and hire staff which will reflect the make-up of the population of the area by age, race, sex and national origin, and shall take corrective action if staff composition varies significantly from this goal.

7 DCMR § 403 ELIGIBILITY FOR SUMMER JOBS FUNDS

403.1 The District of Columbia Department of Employment Services shall be eligible to receive funds under the Act in order to provide meaningful employment and training opportunities through a Summer Youth Jobs Program for young persons fourteen (14) through twenty-one (21) years of age who are domiciliaries of the District of Columbia.

403.2 Funds available to the District of Columbia Department of Employment Services under the Act, shall be committed, allocated and expended according to a General Plan developed and approved pursuant to §§406 and 407 of these regulations.

403.3 No funds shall be used to pay fees charged to an individual for the placement of that individual in a training or employment program under the Act.

403.4 All recipients, contractors and program components shall comply with applicable Federal, State and Local Child Labor Laws.

7 DCMR § 404 PLANNING AND ADVISORY COUNCILS

404.1 YES shall utilize in the planning and implementation phase, a Youth Employment Advisory Council, Board or Commission or an advisory body established by the Department for the purpose of assuring the advisory contributions of representatives of major sectors of the community served YES including the following:

(a) Private for profit;

(b) Community based organizations;

(d) Educational institutions;

(e) Organized labor;

(f) Churches;

(g) Independent professionals;

(h) Non-professionals; and

(i) Youth, etc.

7 DCMR § 405 BASIC PROGRAM DESIGN PROVISIONS

405.1 The YES Program shall do the following:

(a) Provide services to those eligible members among the youth population within the Department's jurisdiction, taking into account any priorities identified by the YES Director. The services shall be provided on an equitable basis considering the distribution of eligible youth within the Department's jurisdiction;

(b) Design programs which provide quality work experiences and to the extent feasible are consistent with each participant's interests and capabilities;

(c) Develop outreach and recruitment techniques aimed at all segments of the eligible youth population including school drop-outs, youth not likely to return to school without assistance from the summer program, youth who are confronted or are likely to be confronted with significant employment barriers related to work attitude, aptitude, social adjustment, basic social skills and other such factors;

(d) Provide labor market orientation to all participants;

(e) Minimize YES costs through development of co-operative relationships with other community resources so that YES activities, worksite supervision, placements, etc., are provided at no cost or minimum cost; and

(f) Make efforts to encourage local educational agencies to award credit (academic and/or work study) and where appropriate to facilitate re-enrollment of out-of-school participants.

7 DCMR § 406 YES GENERAL PLAN DESCRIPTION

406.1 The Director shall submit a YES General Plan to the Mayor. The Mayor may conditionally approved the Plan subject to final resolutions of any comments received during the comment and publication period.

406.2 The Mayor shall approve or disapprove the YES General Plan using the procedures set forth in §407.

406.3 The YES General Plan shall consist of the following items, including but not limited to the following:

(a) Approval Request Letter;

(b) Narrative description which contains the following:

(1) A statement of the problem and objectives;

(2) Special conditions affecting the eligible population and labor market;

(3) A statement of results and benefits accruing to participants; and

(4) A description of the preferred worksite including a copy of a representative worksite agreement;

(c) Descriptions of training, work experience and orientation component for participants, worksite supervisors and other worksite personnel, and administrative staff with respect to their responsibilities under the Plan;

(d) Methods used to recruit, select, and verify eligibility of YES participants;

(e) Description of special components, e.g., Vocational Exploration Program (VEP), special skills development activities, etc.; and

(f) Management and Administration as follows:

(1) Organizational structure, personnel requirements, and staff responsibilities;

(2) Program monitoring and evaluation process;

(3) Budget allocations, requisite payment schedule, contracted services and other funding requirements; and

(4) Submission of Interim and Final Reports to the Mayor.

7 DCMR § 407 YES GENERAL PLAN APPROVAL PROCESS

407.1 The Department shall submit for the Mayor's approval by a date set by the Mayor, a YES General Plan.

407.2 The Mayor shall approve or disapprove the General Plan after determining if it meets the following requirements:

(a) It is complete and achieves the intent and requirements of the Act;

(b) The Department's performance and placement goals are adequate with respect to local conditions and the nature of employment barriers faced by the eligible population; and

(c) The Plan is designed to implement an effective and well administered program in light of past program performance, available resources, and recommendations, made by appropriate advisory sources.

407.3 If an appropriate advisory source has recommended rejection of the Plan or parts of the Plan because it conflicts with or duplicates other city-funded or city assisted projects, the Director shall, after appropriate consultation, take action on the Plan or contested part of the Plan prior to re-submission for approval if warranted.

407.4 If the Plan is disapproved fully, partially or conditionally approved, the Mayor shall notify the Director with the following information:

(a) The reasons for disapproval;

(b) Corrective steps needed to remedy identified defects within a specified time; and

407.5 If the Plan is approved, the Mayor shall issue a letter of approval to the Director along with a notice of funding availability.

7 DCMR § 408 STAFF AND PERSONNEL STANDARDS

408.1 Methods of personnel administration shall be established and maintained in conformity with applicable District of Columbia laws and agency regulations.

408.2 Recipients which are not units of the government of the District of Columbia are not subject to the requirements of §407.4(a), except that they may be required to meet training, orientation, and supervisory personnel criteria established by YES.

408.3 All recipients shall ensure equal employment opportunity based on objective personnel policies and practices for recruitment, selection, promotion, classification, compensation, performance evaluation, and employee-management relations.

408.4 Sub-recipients may be asked to demonstrate adherence to the objectives of §408.3 in a manner and for purposes deemed by the Department to be consistent with the policies governing use and allocation of YES funds.

7 DCMR § 409 WORKSITE STANDARDS AND WORKSITE AGREEMENT

409.1 No participants under eighteen (18) years of age shall be employed in any occupation which the Director or YES Director has found to be hazardous for persons between fourteen (14) and eighteen (18) years of age.

409.2 Participants who are fourteen (14) and fifteen (15) years of age shall participate only in accordance with the limits imposed by the Fair Labor Standards Acts.

409.3 The Worksite Agreement shall do the following:

(a) YES shall develop a written agreement with each worksite employer which assures:

(1) Adequate supervision of each participant;

(2) Adequate accountability for participant time and attendance; and

(3) Adherence to rules and regulations governing YES; and

(b) The written agreements shall indicate an estimated number of participants at the worksite and any operational conditions to which the worksite is expected to adhere.

409.4 No participant fourteen (14) or fifteen (15) years of age shall be required to work more than twenty (20) hours per week.

409.5 No participants sixteen (16) to twenty-one (21) years of age shall be required to work more than twenty-five (25) hours per week.

409.6 The restrictions in §§409.4 and 409.5 are not intended to and shall not deprive the Department of its flexibility in developing jobs in keeping with the needs of the area and the youth to be served.

7 DCMR § 410 ELIGIBILITY FOR PARTICIPATION

410.1 At the time of enrollment, each youth participant shall meet the following requirements:

(a) Be fourteen (14) through twenty-one (21) years of age inclusive; and

(b) Be a resident of Washington, D.C.

7 DCMR § 411 PARTICIPANT INTAKE AND ASSESSMENT

411.1 YES staff at the time of intake shall assess every individual to determine the person's interest and eligibility and decide whether YES can provide those services or activities enabling participants to obtain meaningful summer employment.

411.2 In determining who shall be enrolled, YES shall establish appropriate mechanisms to ensure that employment and training activities available through appropriated funds are provided to those most in need.

411.3 Each participant's progress toward acquiring basic employability skills shall be monitored and assessed by YES.

7 DCMR § 412 PARTICIPANT COMPENSATION, BENEFITS AND WORKING CONDITIONS

412.1 YES and participating employers shall provide participant benefits, wages and allowances in parity with the benefits, wages and allowances permitted under the Comprehensive Employment and Training Act of 1973.

412.2 Participants enrolled in vocational exploration activities shall be compensated as described in §412.1.

412.3 Except as provided for in §412.1, participants receiving public assistance may receive funds in addition to their work incentive allowance for participating in vocational exploration program activities; Provided, that the participant's total allowances (the incentive plus additional funds) do not exceed the basic allowances paid to other participants.

412.4 In determining the total payment to each participant, YES shall insure that no individual shall receive an amount in compensation, benefits and/or allowances which would result in a net loss to the youth or the youth's family in public assistance benefits.

7 DCMR § 413 REPORTING REQUIREMENTS

413.1 The Department shall submit to the Mayor the following reports:

(a) The YES status summary including participant characteristics as of July 30, and August 30, 1980 components (e.g., Vocational Exploration Program (VEP) shall be included in this report); and

(b) The YES Financial Status Report as of July and August 30, (Special/Component Financial Reports shall be included).

413.2 Reports in this section shall be submitted to the Mayor no later than fifteen (15) days after the end of the report period.

7 DCMR § 414 MONITORING PROCEDURES AND INDEPENDENT SUMMER YOUTH EMPLOYMENT EVALUATION UNIT (YEEU)

414.1 As part of its internal program management procedures, YES shall establish a monitoring unit which shall be independent of, and not accountable to any unit being monitored. This unit shall report to the YES Director to ensure adequate monitoring coverage and appropriate action of findings and recommendations.

414.2 Organizationally, the YEEU shall be positioned to assure its objectivity, and to facilitate its access to information necessary to discharge its responsibilities without conflict of interest.

414.3 The Youth Employment Evaluation Unit (YEEU) shall monitor and review all program activities, services, program administration and management and fiscal practices supported with funds disbursed under the Act.

414.4 Areas to be monitored include the following:

(a) Review of systems controlling program administrations;

(b) Control, maintenance and computational systems for time, attendance, pay records and fiscal operations to ensure efficiency and prevention of abuse;

(d) Reviewing plans, procedures and contractor/employer's capability to carry out programs and activities; and

(e) Monitoring contractor/employer maintenance of records on all expenditures of appropriated funds;

414.5 The Youth Employment Evaluation Unit (YEEU) shall do the following:

(a) Make recommendations to the YES Director for corrective action whenever it identifies non-compliance with the Act, relevant contracts and agreements, worksite agreement, local, federal or other applicable regulations:

(b) Document its monitoring and review activities, the findings resulting there from and any recommendations made for corrective action; and

414.6 The YES Director shall review all monitoring reports submitted by the YEEU, acknowledge receipt thereof and respond to the YEEU with respect to the action taken as planned in response to YEEU recommendations.

414.7 The YES Director may require contractors/employer's to establish certain monitoring procedures, including a Youth Employment Evaluation Unit to ensure compliance with the following terms:

(a) The Act and this chapter;

(b) The provisions of relevant sub-agreements; and

414.8 Nothing in this section shall be interpreted as prohibiting the monitoring and review of any component of the YES Program by the Director, his or her designee(s), or the Youth Employment Evaluation Unit.

7 DCMR § 415 INVESTIGATIONS AND COMPLAINTS

415.1 Investigations may be initiated upon the request of any person, organization or by the Department on its own initiative.

415.2 Complaints may be brought by any individual or organization including, but not limited to, program participants, employers, contractors, staff of the employer, applicants for participation, labor unions, and community based organization.

415.3 With the exception of complaints alleging fraud, forgery or other criminal activity, the filing of a complaint shall be made within ten (10) days of the alleged occurrence.

415.4 Participants shall be provided upon enrollment into YES employment or training, a written description of the complaint procedures, including notification of their right to file a complaint and instructions on how to do so.

415.5 The complaint resolution procedure shall include the following:

(a) Opportunity to file a complaint. All complaints shall be in writing;

(b) Opportunity for informal resolution of the complaint;

(c) Written notification of an opportunity for a hearing when an informal resolution has not been accomplished. This notice shall state the procedures for requesting a hearing and shall describe the elements in the hearing procedures including those set forth in §415(f);

(d) Opportunity to amend the complaint prior to a hearing;

(e) Opportunity for a hearing pursuant to §415(f) within twenty (20) days of filing the complaint; and

(f) A final written decision to the complaint which shall be made within thirty (30) days of the filing of the complaint and shall include the following:

(1) The reason(s) for the decision; and

(2) A statement that the procedures delineated in this section have been completed.

415.6 A hearing, when requested, shall be provided within twenty (20) days after filing a complaint. The hearing procedure shall include the following:

(a) Written notice of the date, time and place of the hearing, the manner in which it will be conducted, and the issues to be decided;

(b) Opportunity to withdraw the request for hearing in writing before the hearing;

(d) Opportunity to be accompanied by a representative;

(e) Opportunity to bring witnesses and documentary evidence;

(f) Opportunity to have relevant documents produced by YES or its components;

(g) Opportunity to question witnesses;

(h) The right to an impartial hearing officer selected by the YES Director; and

(i) A written decision from the hearing officer, which shall include a summary of facts, rationale for the decision and a statement or remedies to be applied.

415.7 Appeals from decisions of the Hearing Officer may be filed with the YES Director.

415.8 Whenever the YES Director receives a request for an investigation or a complaint it shall be investigated if it alleges that any person, participant, employer or contractor is failing to comply with the requirements of the Act, a derivative agreement, these regulations, or appropriate local or federal laws and regulations.

415.9 The investigations shall be completed and conclusion made within twenty (20) days after the request is filed.

415.10 The YES Director may not allow more than twenty (20) additional days if additional time is needed to complete the matter.

415.11 No extension shall relieve the Hearing or Investigation Officer from making his or her final determination within forty (40) days after the filing of a complaint or request for investigation.

415.12 If the YES Director, Hearing or Investigation Officer determines that a complaint, an investigation or testimony involves criminal activity which may violate the laws of the District of Columbia, the United States or other jurisdiction, the determination shall be communicated directly to the Director of the Department by the Director of YES for action by the appropriate law enforcement agency.

415.13 Nothing in this section shall prohibit the following requirements:

(a) YES from requiring that a system of grievance processing and a just adjudication of complaints be implemented by employers for the use of participating youth; and

(b) Participating youth from filing a complaint or request for investigation with the Office of the Director.

415.14 Records of all investigations, hearings, complaints, and requests for investigation shall be maintained in the Office of the Director of YES.

7 DCMR § 416 POLITICAL PATRONAGE

416.1 No recipient, contractor, program, component may select, reject or promote a participant based on that individual's political affiliation or beliefs. The selection or advancement of employees as a reward for political services or as a form of political patronage is prohibited.

416.2 There shall be no selection of participants, YES employees, contractors, vendors, sub-recipients based on political patronage or affiliation.

7 DCMR § 417 POLITICAL ACTIVITIES

417.1 No program or component may involve political activities.

417.2 No participant may engage in partisan political activities during hours for which the participant is paid with funds provided by the Act.

417.3 No participant may be employed or out-stationed in the Office of a Member of Congress or a State or local legislator or on any staff of a legislative committee.

417.4 Except as provided for in §417.3, the YES Director may approve, if documentation is submitted attesting to the non-political nature of the position, a position which is technically in an office but the program activities of that position is not in any way involved in the political functions of that office.

7 DCMR § 418 PREVENTION OF FRAUD AND PROGRAM ABUSE

418.1 For purposes of this section, "Fraud" includes knowing-or the reckless misrepresentation of facts which induces reliance on such misrepresentation to the detriment of a second party, particularly those misrepresentations affecting the use, expenditure, receipt of or entitlement to funds made available by the Act.

418.2 For purposes of this section, "abuse" encompasses any improper conduct in violation of YES Program interests, agreements, controlling policies, regulations, or statutes which may or may not constitute fraud.

418.3 All administrators, participants, recipients, sub-recipients, members of councils, Advisory Boards, shall avoid personal conflict of interest and appearance of conflict of interest in the allocation of funds and in the conduct of contracting/procurement activities involving funds provided under the Act.

418.4 No funds shall be paid to any non-District or Federal individual, institution or organization to conduct an evaluation of any program or component if the individual, institution or organization is associated with that program or component as a consultant, technical advisor, employee or other compensable capacity.

418.5 No officer, employees, or agent of YES or any recipient or sub-recipient shall solicit or accept gratuities, favors or anything of monetary value from any actual or potential youth participant, contractor, vendor or sub-recipient.

418.6 Strict accounting procedures shall be utilized to maintain the discretion and integrity of various finding codes, sources and accounts of monies provided under the Act.

7 DCMR § 419 LOBBYING ACTIVITIES

419.1 No funds provided under the Act may be used to influence a Member of Congress, a State or local legislator or elected official to favor or oppose any legislation or appropriation of the legislators.

419.2 Communications and consultation with State and local legislators or elected officials for purposes of providing information, such as matters necessary to provide compliance with the Act, shall not be considered lobbying.

7 DCMR § 420 SECTARIAN ACTIVITIES

420.1 Participants shall not be employed to construct, operate, or maintain any facility used for sectarian instruction or religious worship.

420.2 Neither participant nor funds shall be involved in religious or anti-religious activities.

7 DCMR § 421 UNIONIZATION AND ANTI-UNIONIZATION ACTIVITIES

421.1 Neither participants nor funds shall be used to either promote or oppose unionization.

421.2 No individual shall be required to join a union as a condition for enrollment in a program, unless the individual is employed under a collective bargaining agreement containing a union security provision.

421.3 Participants working in any position affected by a labor dispute involving a work stoppage-shall be re-located to positions not affected by the dispute suspended through administrative leave or treated as any other union member, except that the members shall not remain working in the affected position.

421.4 YES shall make every effort to re-locate participants who wish to continue working, into suitable positions unaffected by the work stoppage.

421.5 No participant shall be referred to or placed in an on-the-job training position affected by a labor dispute involving a work stoppage and no payments may be made to employers for the training and employment of participants in on-the-job training during the periods of work stoppage.

421.6 Nothing in this section shall prevent an employer from checking off union dues or service fees if required by applicable collective bargaining agreements or state law.

7 DCMR § 422 THEFT, EMBEZZLEMENT, IMPROPER INDUCEMENT, OBSTRUCTION OF INVESTIGATION AND OTHER CRIMINAL PROVISIONS

422.1 Any individual who works with any agency or employer in any capacity and receives monies, funds, assets or property under the Act shall be subject to the full prosecution and penalties of the laws or policies of the Government of the District of Columbia, its law enforcement agencies or any other appropriate agency or jurisdiction, and may be held criminally liable under any applicable local, state or federal law, if it is determined that the agency or employer did any of the following:

(a) Knowingly hired an ineligible individual or individuals, embezzled, willfully mis-applied, stole or obtained by fraud any of the monies, funds, assets, or property under the Act;

(b) Refused to renew employment or threaten dismissal of a person from employment;

(d) Willfully obstructed or impeded, or endeavored to obstruct or impede, an investigation or inquiry under the Act or these regulations.

422.2 Individuals may not directly or indirectly promise any employment, position, compensation, contract appointment or other benefit, provided for or made possible in whole or in part by funds under the Act.

422.3 Individuals may not directly or indirectly promise any special consideration in obtaining any benefits to any person as consideration, favor or reward for any political activity or for the support of, or opposition to, any candidate or any political party in connection with any general or special election with any primary election or political convention or caucus held to select candidates for any political office.

422.4 Individuals may not directly or indirectly knowingly cause or attempt to cause any person to make a contribution of a thing of value (including services for the benefit of any candidate or any political party, by means of the denial or deprivation of any employment or benefits funded under the Act).

422.5 YES shall establish and use internal program management procedures sufficient to prevent fraud and program abuse.

422.6 Each recipient, contractor, vendor, sub-recipient, program component shall ensure that sufficient, auditable, and otherwise adequate records are maintained with support and record the expenditure of all funds under the Act.

422.7 The records shall be sufficient to allow the YES Director, the Youth Employment Evaluation Unit, and other appropriate agency to audit and monitor the respective programs and shall include the maintenance of the management information system.

7 DCMR § 423 TERMINATION DATE AND PROCESS FOR THE SUMMER PROGRAM

423.1 Participants shall not be enrolled in program activities beyond September 30. However, in no event may a participant work, full time in YES after the beginning of his or her school year.

423.2 Allowable activities after September 30 under the funds appropriated for the previous year include the following:

(a) Report and record preparation and submittal; and

(b) Completion of evaluation and assessments of the summer program and audits.

7 DCMR § 499 DEFINITIONS

499.1 When used in this chapter, the following terms shall have the meanings ascribed:

Academic Credit - for education, training or work experience applicable toward a secondary school diploma, post secondary degree or accredited certificate of completion consistent with applicable laws, policies, and requirements of an accredited educational agency or institution.

Act - Youth Employment Act of 1979 (D.C. Act 3-146) approved November 9, 1979.

Artificial Barriers to Employment - limitations (age, sex, race, national origin, parental status, credential requirements, criminal record, lack of child care, physical or mental status and absence of part-time or alternative working patterns/schedules) in hiring, firing, promotion, licensing, and conditions or employment which are not directly related to an individual's fitness or ability to perform the tasks by the job.

Community Based Organization - a private non-profit organization which is representative of the community or a significant segment of a community, and which the Department, a recipient or a sub-recipient pays for property, services, supplies, materials or equipment.

Contract - a procurement instrument by which the department, a recipient, or a sub-recipient pays for property, services supplies, materials or equipment.

Contractor - any person, corporation, partnership, public agency, or other entity which enters into a contract with the DES, a recipient or sub-recipient under the Act.

Department - the District of Columbia Department of Employment Services (DOES), including its agencies and organizational units.

Employing Agency - any public or private profit or non-profit employer which employs youth participants and which establishes and maintains the standards applicable to those participants covering such areas as wages rates, fringe benefits, job titles, and employment status.

Entry Level - the lowest position in any promotional line, as defined locally by D.C. Personnel regulations, past practices, and collective bargaining agreements.

Family - one (1) or more persons living in a single residence who are related to each other by blood, marriage or adoption. A step-child or a step-parent shall be considered to be related by marriage. The following description applies:

(a) For purposes of this chapter, one (1) or more persons not living in single residence but who were claimed as a dependent on another person's Federal Income Tax return for the previous year shall be presumed, unless otherwise demonstrated part of the other person's family; and

(b) Whether living in the residence or not, a handicapped individual who is sixteen (16) years of age or older may be considered a family of one (1) when applying for programs under the Act.

Handicapped Individual - any person who has a physical or mental disability which constitutes a substantial barrier to employment and can benefit from YES Services.

In-school youth - a person fourteen (14) to twenty-one (21) who meets the following requirements:

(a) Is currently enrolled full-time in and attending a secondary, trade, technical, vocational school or junior or community college or is scheduled to attend full-time the next regularly scheduled quarter or semester of any of these schools;

(b) Has not completed high school and is scheduled to attend or is attending, on a full-time basis, a program leading to a secondary school diploma or its equivalent. Full-time may be defined by the requirements of the agency administering the program.

Participant - an individual who is as follows:

(a) Declared eligible upon intake; and

(b) Receiving employment, training or services (except post-termination services) funded under the Act following intake.

Placement - the act of securing employment for or by a participant.

Public Assistance - Federal, State or Local Government cash payments for which eligibility is determined by a need or income test.

Recipient - person, firm, organization, private for profit or non-profit enterprise, which receives funds from the Department and YES to perform substantive work or provide services under the Act (employment, training, supportive services, etc.).

YES - Youth Employment for the Summer, Office of the District of Columbia Department of Employment Services (DC-DOES), authorized to implement the provisions of the Youth Employment Act of 1979, §2(a)(1) Summer Youth Jobs Programs.

7-5 YOUTH EMPLOYMENT: OUT-OF-SCHOOL YEAR-ROUND EMPLOYMENT PROGRAM

7 DCMR § 500 GENERAL PROVISIONS

500.1 The District of Columbia Out-of-School Year-Round Employment Program is authorized by §2(a)(3) of the Youth Employment Act of 1979.

500.2 The purpose of the program is to expand employment opportunities for out-of school youth through the direct subsidization of wages. In addition, participating youth shall be provided with basic and remedial education or related skill training to improve their productivity as workers and enhance their future economic self sufficiency through meaningful career and work opportunities.

500.3 The subsidization of wages is intended as an economic incentive for employers to do the following:

(a) To encourage the employment of District youth who have difficulty competing for jobs;

(b) To provide District youth with good work place training and supervision; and

(c) To employ District youth as part of their unsubsidized work force once they become productive workers or upon the completion of the full year program.

7 DCMR § 501 ELIGIBILITY

501.1 In order to participate in this year-round employment program a person shall meet all of the following basic eligibility requirements:

(a) Be a resident of the District of Columbia;

(b) Be age sixteen (16) through twenty-four (24) years of age; or

(c) Have completed at least twelve (12) years of education (or its equivalent), or have been separated from a formal educational system for a period of not less than thirty (30) days and have been employed for that same period.

501.2 Notwithstanding §501.1(c), persons enrolled in federally-funded employment and training programs administered by the Department may be subsequently enrolled in the Out-of-School Year Round Program without an intervening period of unemployment; Provided, that the persons meet all other eligibility requirements of the program.

501.3 Priority for participation shall be given to eligible District youth who are economically disadvantaged.

501.4 The Director may require that eligible participants agree to attend a pre-employment orientation and enrichment program before being considered for referral to a youth employment opportunity.

7 DCMR § 502 PARTICIPANT RECRUITMENT, ASSESSMENT AND REFERRAL

502.1 The Director shall utilize the District's free Public Job Service for the recruitment of out-of-school youth.

502.2 The Job Service, in seeking eligible participants, shall utilize its current applicant files and conduct outreach through its Job Service Centers as well as through a network of community based organizations, and, if necessary, through the media.

502.3 The Job Service shall assess persons interested in youth employment opportunities against program eligibility requirements and requirements for subsidized employment opportunities.

502.4 The Job Service shall be responsible for referring all potential participants to participating employers, and for assuring the employers that all referrals meet basic program eligibility requirements.

502.5 Participating employers shall be responsible for the employment of all participants.

7 DCMR § 503 JOBS ELIGIBLE FOR INCENTIVES

503.1 Jobs to be approved for incentives shall do the following:

(a) Provide a prevailing entrance wage for the job being performed, but shall not be subsidized at a rate which exceeds the minimum wage rate specified in §6(a)(1) of the Fair Labor Standards Act; and

(b) Provide for the development of job skills which lead to future economic self sufficiency.

503.2 Employment opportunities under the program may be with the Government of the District of Columbia or in the private sector on a fully funded, partially, or matchfunded basis through grants to or contracts with non-profit or profitmaking organizations, associations, institutions or businesses.

503.3 Participant wage rates shall be in conformity with all federal and local laws, and in no event shall the wage rate be less than the higher of the following:

(a) The minimum wage rate specified in §6(a)(1) of the Fair Labor Standards Act: and

(b) The minimum wage rates prescribed by applicable state or District laws and regulations.

503.4 In order to ensure meaningful jobs, the Director shall approve only jobs which in the Director's judgement will provide marketable job skills and enhance the goals of the Out-of-School Year-Round Employment Program.

503.5 The Director may coordinate with various business and community organizations to solicit employer participation in identifying eligible jobs with youth employment opportunities. Emphasis shall be placed on utilizing organizations with strong associations with minority businesses.

503.6 The Director may enter into formal arrangements or agreements with an organization to aid in the search for suitable employment opportunities.

503.7 Employers shall be reimbursed at the agreed-upon subsidized wage level and fringe benefits exclusive of overtime, premium pay or other labor costs for a period of fifty-two (52) weeks of subsidized employment.

503.8 Employers shall provide for any periodic or other wage increases above the subsidization level from their own funds unless specific authorization is obtained in writing from the Director.

503.9 The Director may approve jobs individually or as a block of jobs, if the multiple jobs are associated with a distinct project, and if in his or her judgement adequate funds are available for supplies and materials to complete the project.

503.10 Participating employers under the Act shall comply with the following laws:

(a) The Human Rights Law of the District of Columbia;

(b) Titles VI and VII of the Civil Rights Act of 1964;

(d) The Rehabilitation Act;

(e) Title IX of the Education Amendments of 1972; and

(f) Any other applicable non-discrimination laws.

7 DCMR § 504 TRAINING OR PARTICIPANTS

504.1 Participating employers are expected to provide participants with the same type of training on-the-job and supervision as that provided to other similar employees.

504.2 The Director shall, to the extent resources permit, provide funds for job related classroom training conducted at the place of work; Provided, that training is not routinely offered to other employees.

504.3 The Director may also arrange and fund classroom training activity away from the work place. This classroom training may include basic and remedial education, job related skill training, world of work and career planning, or other training judged by the Director to meet the goals of the program.

504.4 Paid participant training to the degree feasible shall be based on the specific employability and developmental needs of the individual participant.

504.5 The Director may require that participating employers provide participants with ten (10) hours a week of paid release time for approved training activities away from the work place.

504.6 The Director may also provide participants with supportive services, such as, but not limited to, transportation, counseling, and orientation.

7 DCMR § 505 AGREEMENTS WITH PARTICIPATING EMPLOYERS

505.1 Participating employers shall enter into a formal agreement with the Director in order to participate in the program.

505.2 The agreement shall contain the employer's assurance that only eligible individuals referred by the D.C. Government's Public Job Service shall be employed in jobs approved by the Director.

505.3 The agreement shall certify the employer's intention to do the following:

(a) Provide a brief outline of the training that the participants will acquire through work and classroom training away from the work place;

(b) State the method of computing and maximum amount of reimbursement;

(d) Provide a job description and specification of participants' wage rates and the amount of wages subsidized and matched, if applicable;

(e) Comply with a requirement that employers are to maintain payroll records, time and attendance records, and job duties statements related to each participant; and

(f) Provide assurance that the employer shall comply with the Act, and rules or regulations issued under the Act, and other terms and conditions normally associated with employment and training agreements.

505.4 The Director shall exercise his or her authority with respect to contracts and grant agreements in accordance with the delegation contained in Commissioner's Order No. 74-144.

7 DCMR § 506 TRANSFER, TRANSITION AND PLACEMENT AND PARTICIPANTS

506.1 The Director may approve the transfer or re-employment of a participant; Provided, that the participant has demonstrated a good faith effort to perform all the normally required duties of an employee and that the total time of the participant's employment does not exceed fifty-two (52) weeks.

506.2 The Director shall encourage participating employers to transfer participants to full unsubsidized employment at any time during the wage subsidized period.

506.3 Employers may terminate or suspend participants for good cause, but shall consult with the Director prior to formal and final termination.

506.4 In the event of a transition or termination, any unused wage subsidy funds shall automatically revert to the Director if not claimed on a certified invoice within forty-five (45) days of transition or termination so that the Director may reallocate the unused funds for additional youth employment opportunities or other use under the Out-of-School Year Round Program.

506.5 The Director shall give first priority in funding new fifty-two (52) week employment opportunities to those employers who have transferred participants to regular unsubsidized employment.

506.6 Participating employers shall provide job placement assistance to participants whom they are unable to employ in fully unsubsidized jobs. This assistance may take the form of personal referrals within the network of the employer's associates and friends, letters of recommendation, job search suggestions, and other means.

7 DCMR § 507 MONITORING

507.1 In carrying out the responsibilities under the Out-of-School Year-Round Program, the Director shall provide for a monitoring and technical assistance program, utilizing departmental staff, as well as the staff of any contractual agents.

507.2 Monitoring shall include the periodic visitation and review of various employment sites provided by participating employers.

507.3 The primary objective of the monitoring program shall be to assist employers in preventing turnover and attrition of participants. In addition, the monitoring program will assure smooth program operation and conformity with the terms, conditions, and provisions of formal agreements.

7 DCMR § 508 REPORTING

508.1 The Director shall establish reporting systems, which shall include the following:

(a) The data on the criteria for determining the eligibility of youth;

(b) The method used in selection of participants;

(d) The placement objectives achieved for assessment of participants.

508.2 Employers shall be required to cooperate in the reporting activity of §508.1.

7 DCMR § 509 COMPLAINT PROCEDURE

509.1 Complaints may be brought by an individual or organization including, but not limited to, program participants, employers, contractors, staff of the employer, applicants for participation, labor unions, and community based organizations.

509.2 With the exception of complaints alleging fraud, forgery, or other criminal activity, the filing of a complaint shall be made within ten (10) days of the alleged occurrence.

509.3 Participants shall be provided, upon enrollment into the Out-of-School Year-Round Employment Program, a written description of the complaint procedures, including notification of their right to file a complaint and instructions on how to file.

509.4 All complaints shall be in writing.

509.5 The complaint resolution procedure shall include provision for the following:

(a) Opportunity for informal resolution of the complaint;

(b) Opportunity for informal resolution of the complaint;

(d) Opportunity to amend the complaint prior to a hearing;

(e) Opportunity for a hearing within twenty (20) days of filing the complaint; and

(f) A final written decision concerning the complaint which shall be made within thirty (30) days of the filing of the complaint and shall include the following;

(1) The reason(s) for the decision; and

(2) A statement that the procedures delineated in this section have been followed.

509.6 A hearing, when requested, shall be provided within twenty (20) days after filing a complaint. The hearing procedures shall include the following:

(a) Written notice of the hearing, a description of the manner in which it will be conducted, and the issue to be decided;

(b) Opportunity to withdraw the request for hearing in writing before the hearing;

(d) Opportunity to be accompanied by a representative;

(e) Opportunity to bring witnesses and documentary evidence;

(f) Opportunity to have relevant documents produced by the Out-of-School Year-Round Employment Program or its components;

(g) Opportunity to question witnesses;

(h) The right to an impartial hearing officer selected by the Director; and

(i) A written decision from the hearing officer, which shall include a summary of facts, the reason(s) for the decision, and a statement of remedies to be applied.

509.7 Appeals from decisions of the Hearing Officer may be filed with the Director.

509.8 Whenever the Director receives a request for an investigation or a complaint, it shall be investigated if it alleges that any person, participant, employer or contractor is failing to comply with the requirements of the Act, a derivative agreement, these regulations, or appropriate local or federal laws and regulations.

509.9 The investigation shall be completed and conclusion effected within twenty (20) days after filing, or within the additional time, not to exceed twenty (20) days, as the Director may allow.

509.10 No extension shall relieve the Hearing or Investigation Officer from making his or her final determination within thirty (30) days after the filing of a complaint or request for investigation.

509.11 If the Director, Hearing, or Investigation Officer determines that a complaint, an investigation or testimony involves criminal activity which may violate the laws of the District of Columbia, the United States, or other jurisdiction, this shall be communicated directly to the appropriate law enforcement agency.

509.12 Nothing in this section shall prohibit the Director from requiring that a system of grievance processing and just adjudication of complaints be implemented by employers for the use of participating youth.

509.13 Nothing in this section shall prohibit a participating youth from filing a complaint or request for investigations and hearings. Complaints shall be maintained in the Office of the Director.

509.14 Records of all investigations, hearings, complaints, and requests for investigation shall be maintained in the Office of the Director.

7 DCMR § 599 DEFINITIONS

599.1 When used in this chapter, the following terms shall have the meanings ascribed:

Act - the authorizing legislation for the Youth Employment Act of 1979, (D.C. Law 3-46).

Director - the Director of the Department of Employment Services, or the Director's designee, contracting officer, representative or contractual agents.

Economically Disadvantaged - a person who is one of the following:

(a) A member of a family which receives public assistance;

(b) A member of a family whose income during the previous six (6) months on an annualized basis was such that:

(1) The family would have qualified for public assistance if it had applied for assistance; or

(2) It does not exceed the poverty level; or.

(3) It does not exceed seventy percent (70%) of the lower living standard income level.

(d) A person whose status presents significant barriers to employment, such as the following:

(1) A client of a sheltered workshop;

(2) A handicapped individual; or

(3) A person residing in an institution or facility providing twenty-four (24) hour support such as a prison, a hospital or community care facility or similar institution.

Entry Level - the lowest position in any promotional line, as defined locally by personnel regulations, past practices, and collective bargaining agreements.

Family - one (1) or more persons living in a single residence who are related to each other by blood, marriage, or adoption. A step-child or step-parent shall be considered to be related by marriage.

Handicapped Individual - any person who has a physical or mental disability which constitutes a substantial barrier to employment and who can benefit from services under this program.

Participant - an individual who is:

(a) Declared eligible upon intake; and

(b) Receiving employment and training funded under the Act following enrollment.

Participating Employers - both profitmaking and non-profitmaking persons, associations, partnerships, and corporations, as well as the District Government and other public agencies which enter into formal agreements with the Director for participation in the Out-of-School, Year-Round Employment Program (OSYREP).

Public Assistance - Federal or District government cash payment for which eligibility is determined by a need or income test.

Resident - a person who has a permanent dwelling or home in the District of Columbia. A District resident shall also include those persons who are permanent resident aliens, or aliens who have been permitted to accept permanent employment in the United States by the U.S. Immigration and Naturalization Service.

Unsubsidized Employment - employment secured for or by a participant which is not subsidized by funds from the Act.

7-6 YOUTH EMPLOYMENT: ON-JOB TRAINING PROGRAM FOR ADULTS WITH DEPENDENTS

7 DCMR § 600 GENERAL PROVISIONS

600.1 The District of Columbia On-Job Training Program for Adults With Dependents is established by §2(a)(4) of the Youth Employment Act of 1979.

600.2 The purpose of the program is to provide financial incentives to private and public employers who hire, train and retain as new employees persons who are unemployed adult residents of the District with dependents, so that these persons may acquire fully productive work and occupational skills to insure their economic self sufficiency through meaningful career and work opportunities.

600.3 Special emphasis under the program is to be directed at encouraging the participation of employers who are minority business firms and non-profit organizations, so that these employers may benefit from the program by utilizing program financial incentives to train employees, and thus through improved employee productivity become more competitive in the market place.

7 DCMR § 601 PARTICIPANT ELIGIBILITY

601.1 In order to participate in this on-the-job training program a person shall meet all of the following basic eligibility requirements:

(a) Be a resident of the District of Columbia;

(b) Be twenty-two (22) years or older;

(d) Be without a job for at least thirty (30) consecutive days prior to application.

601.2 Notwithstanding §601.1(d), persons enrolled in federally-funded employment and training programs administered by the Department may be subsequently enrolled in the On-Job Training Program for Adults with Dependents without an intervening period of unemployment; Provided, that the persons meet all other eligibility requirements of the program.

601.3 The Director may require that eligible participants agree to attend a pre-employment orientation and enrichment program before being considered for referral to an on-the-job training opportunity.

7 DCMR § 602 PARTICIPANT RECRUITMENT, ASSESSMENT, REFERRAL AND HIRING

602.1 The Director shall utilize the District's free Public Employment Service for the recruitment of unemployed adults with dependents.

602.2 The Employment Service shall, in seeking eligible participants, utilize it's current applicant files, conduct outreach through its job service centers, as well as through a network of community based organizations, and if necessary through the media.

602.3 The Employment Service shall assess persons interested in on-the-job training opportunities against program eligibility requirements and employment requirements specified by participating employers, such as the minimum educational achievement needed to learn a occupation on-the-job.

602.4 The Employment Service shall be responsible for referring all potential participants to participating employers, and assuring the employers that all referrals meet basic program eligibility requirements.

602.5 In making referrals to employers the Employment Service shall strive to offer employment with on-the-job training opportunities to eligible adults in a pattern which reflects the distribution of unemployment among the various wards of the city.

602.6 Participating employers shall be responsible for the hiring, employment and training of all participants.

7 DCMR § 603 JOBS ELIGIBLE FOR INCENTIVES AND JOB DEVELOPMENT

603.1 Jobs to be approved for incentive reimbursement shall meet the following requirements:

(a) Provide a prevailing entrance wage not to exceed five dollars ($5.00) per hour;

(b) Provide for employment opportunities which lead to economic self sufficiency; and

603.2 In order to assure meaningful jobs, the Director shall approve only jobs which in his or her judgement will enhance the goals of the Adults with Dependents Program.

603.3 The Task Force established under § (2)(a)(4) of the Act shall identify and contact employers in order to implement the program. Emphasis shall be placed on contacts with minority business.

603.4 The Director shall coordinate with various business organizations to solicit employer participation in identifying eligible jobs with on-the-job opportunities. Emphasis shall be placed on utilizing organizations with strong associations with minority businesses.

603.5 The Director may enter into formal arrangements or agreements with an organization to aid in the search for suitable employment opportunities.

7 DCMR § 604 REIMBURSEMENT

604.1 Participating employers shall be reimbursed as an incentive an average of fifty percent (50%) of the participant-employee's entrance level wage rate (exclusive of fringe benefits, overtime, premium pay and other labor costs) for a period of up to fifty-two (52) weeks of actual participant employment.

604.2 Employers shall provide for any periodic or other wage increase from their own funds.

604.3 The Director and interested employers may, where appropriate, experiment with the following reimbursements schedule:

Employment Period Percent of Wages

1st 13 weeks 25%

2nd 13 weeks 40%

3rd 13 weeks 60%

4th 13 weeks 75%

604.4 Participants-Employees in on-the-job training shall be compensated by the employer at reasonable rates, and shall consider such factors as industry and participant skills.

604.5 Rates shall be in conformity with all federal and local laws and in no event shall the wage rate be less than the higher of the following:

(a) The minimum wage rate specified in §8(a)(1) of the Fair Labor Standards Act; and

(b) The minimum wage rates prescribed by applicable state or District laws and regulations.

604.6 Subject to legislative authorization, the Director may reimburse public agencies for one hundred percent (100%) of a participant's wage rate (exclusive of fringes, overtime premium pay, periodic or other wage increases, or other labor costs) for a period of up to fifty-two (52) weeks of actual participant employment.

7 DCMR § 605 AGREEMENTS WITH PARTICIPATING EMPLOYERS

605.1 Participating employers shall enter into a formal agreement with the Director in order to be eligible to receive the reimbursement incentives in §604.

605.2 The agreement shall contain the employer's concurrence to hire into jobs approved by the Director only eligible individuals referred by the D.C. Government's Public Employment Service.

605.3 The Agreement shall certify the employer's intention to do the following:

(a) Hire participant-employees for a full fifty-two (52) weeks of subsidized on the job training; and

(b) Retain in employment successful participant-employees after the completion of the one (1) year of program participation.

605.4 In addition, the participation agreement shall contain as a minimum the following elements:

(a) A brief training outline;

(b) The method and maximum amount of reimbursement for on-the-job training;

(d) A job description and specification of participant-employees wage rates;

(e) A requirement that employers are to maintain payroll records, time and attendance records and job duties statements related to participant-employees; and

(f) An assurance that the employer will comply with the Act and rules or regulations issued under the Act.

605.5 The Director shall agree to reimburse a participating employer as frequently as every thirty (30) days based upon the submission by the employer of a certified invoice/report in the form specified by the Director.

605.6 The Director shall exercise his or her authority with respect to contracts and grant agreements in accordance with the delegation contained in Commissioner's Order No. 74-144.

7 DCMR § 606 TRANSFER OF PARTICIPANTS/EMPLOYEES

606.1 The Director may approve the transfer of re-employment of a participant-employee; Provided, that the participant-employee has demonstrated a good faith effort to perform all the normally required duties of an employee and provided that the total time of the employment does not exceed fifty-two (52) weeks.

7 DCMR § 607 MONITORING

607.1 In carrying out the responsibilities under the Adult With Dependents Program, the Director shall provide for a monitoring and technical assistance program utilizing departmental staff, as well as that of any contractual agents.

607.2 Monitoring shall include the periodic visitation and review of various job sites provided by participating employers.

607.3 The primary objective of the monitoring program shall be to assist employers in preventing turnover and attrition by participant- employees. In addition, the monitoring program will assure smooth program operation and conformity with the terms, conditions and provisions of formal agreements.

7 DCMR § 608 PROGRAM PERFORMANCE GOALS

608.1 The Director, in cooperation with participating employers, shall endeavor to achieve the following performance goals:

(a) The participating employers shall employ seventy percent (70%) of all participants initially hired for the full fifty-two (52) weeks; and

(b) The participating employers shall retain in employment ninety percent (90%) of all participants on their payroll at the completion of the fifty-two (52) weeks.

7 DCMR § 699 DEFINITIONS

699.1 When used in this chapter the following terms shall have the meanings ascribed:

Act - the Youth Employment Act of 1979 (D.C. Law 3-46).

Dependent - any persons who is a resident of the District and for whom the participant provides support.

Director - the Director of the Department of Employment Services, or his or her designee, contracting officer, representative of contractual agents.

On-Job Training (OTJ) - training in the private sector or public sector given to a participant, who has been hired first by the employer, and which occurs while the participant-employee is engaged in productive work which provides knowledge or skills essential to the full and adequate performance of the job.

Participant Employee - a person who has met the eligibility requirements of §601 and who is hired as an employee by an employer pursuant to an agreement specified in §601.

Participating Employers - both profitmaking and non-profitmaking persons, associations, partnerships, and corporations, as well as public agencies which enter into formal agreements with the Director to hire participant-employees under the Adults with Dependents Program.

Resident - a person who has a permanent dwelling or home in the District of Columbia. A District resident shall also include those persons who are permanent resident aliens, or other aliens who have been permitted to accept permanent employment in the United States by the U.S. Immigration and Naturalization Service.

Task Force - for the Adults with Dependents Program, the body of persons specified in §2(a)(4) of the Act and as established by the Mayor.

7-7 YOUTH EMPLOYMENT: IN-SCHOOL EMPLOYMENT PROGRAM

7 DCMR § 700 GENERAL PROVISIONS

700.1 The District of Columbia's In-School Employment Program for Youth is established by §2(a)(2) of the Youth Employment Act of 1979.

700.2 The purpose of this program is to provide school students with subsidized part-time employment at the federal minimum wage level throughout the school year.

700.3 Priority shall be given to economically disadvantaged youth currently in school, but identified as potential dropouts.

700.4 The program shall also provide a basic and meaningful work experience to enhance a youth's future employability in the unsubsidized labor market.

7 DCMR § 701 PARTICIPANT ELIGIBILITY

701.1 In order to participate in the In-School Employment Program, a person shall meet all of the following basic eligibility requirements:

(a) Be a resident of the District of Columbia; and

(b) Be between fourteen (14) and twenty-one (21) years of age.

701.2 Priority for participation shall be given to eligible District full-time students who are economically disadvantaged and identified as potential dropouts.

7 DCMR § 702 JOBS ELIGIBLE FOR INCENTIVES

702.1 Jobs to be approved for incentives shall meet the following requirements:

(a) Provide for the development of job skills which lead to participants' future economic self-sufficiency;

(b) Be designed, whenever applicable, to accommodate academic credit and its prerequisites; and

(c) Not be subsidized at a rate which exceeds the established federal minimum wage. This requirement shall not preclude an employer from adding funds to offer a prevailing entrance wage.

702.2 Employment opportunities under this program may be provided by the District of Columbia Government, the private sector, through grants to and contracts with, non-profit or profitmaking organizations, associations, institutions, or businesses.

702.3 Participant wage rates shall being in conformity with all federal and local laws and in no event shall the wage rate be less than the higher of the following:

(a) The minimum wage rate specified in § 6(a)(1) of the Fair Labor Standards Act; and

(b) The minimum wage rate prescribed by applicable state or District laws and regulations.

702.4 In order to assure meaningful jobs, the Director shall approve only jobs which in the Director's judgment will provide marketable skills and enhance the goals of. the In-School Employment Program.

702.5 The employer shall be reimbursed at the agreed upon subsidized wage level and fringe benefits exclusive of overtime, premium pay, or other labor cost until the completion of thirty-six (36) weeks of subsidizied employment or for the duration of the program whichever comes first.

702.6 Participating employers under the Act shall comply with the following laws:

(a) The Human Rights Law of the District of Columbia;

(b) Titles VI and VII of the Civil Rights Act of 1964;

(d) The Rehabilitation Act;

(e) Title IX of the Education Amendments of 1972; and

(f) Any other applicable non-discriminatory laws.

7 DCMR § 703 WORK EXPERIENCE FOR PARTICIPANTS

703.1 Participating employers are expected to provide participants with the same work experience and supervision provided to their regular employees.

7 DCMR § 704 AGREEMENTS WITH PARTICIPATING EMPLOYERS

704.1 Participating employers shall enter into a formal agreement with the Director in order to participate in the program.

704.2 The agreement shall contain the employer's guidelines concerning employee participants in jobs approved by the Director.

704.3 The agreement shall certify the employer's intention to employ participants for the entire period of program operations.

704.4 In addition, the participation agreement shall contain as a minimum the following elements:

(a) A brief outline of the work experience;

(b) Academic credit, to be received, if applicable;

(d) The method of computing, and the maximum amount of reimbursement;

(e) A requirement that employers are to maintain payroll records, as well as time and attendance records; and

(f) An assurance that the employer will comply with the Act and rules and regulations issued under the Act and other terms and conditions normally associated with employment and training agreements.

704.5 The Director shall agree to reimburse a participating employer as frequently as every thirty (30) days based upon the submission by the employer of a certified invoice/report in the form specified by the Director.

704.6 The Director shall exercise authority with respect to contracts and subgrant agreements in accordance with the delegation contained in Commissioner's Order No. 74-144.

7 DCMR § 705 TRANSFER, TRANSITION, AND PLACEMENT OF PARTICIPANTS

705.1 The Director may approve the transfer or re-employment of a participant; Provided, that the participant has demonstrated a good faith effort to perform all the normally required duties of an employee and provided that the participant is still in school.

705.2 The Director shall encourage participating employers to transfer non-college bound graduating senior participants to regular fully unsubsidized employment upon graduation.

705.3 Employers may terminate or suspend participants for just cause, but shall consult with the Director prior to formal and final termination.

705.4 In the event of a transfer or termination, any unused wage subsidization funds shall automatically revert to the Director if not claimed on a certified invoice within forty-five (45) days of transfer or termination so that the Director may reallocate the unused funds for additional youth employment opportunities or other program use under the In-School Program.

705.5 The Director shall give first priority in funding new in-school employment opportunities to those employers who have transitioned graduating, non-college bound senior participants to regular unsubsidized employment.

705.6 Participating employers shall provide job placement assistance to participants whom they are unable to employ.

7 DCMR § 706 MONITORING

706.1 In carrying out the responsibilites under the In-School Program, the Director shall provide for a monitoring and technical assistance program utilizing Departmental staff, as well as staff of any contractual agents.

706.2 Monitoring shall include the periodic visitation and review of various employment sites provided by participating employers.

706.3 The primary objective of the monitoring program shall be to assist employers in preventing turnover and attrition of participants. In addition, the monitoring program shall assure smooth program operation and conformity with the terms, conditions and provisions of formal agreements.

7 DCMR § 707 REPORTING

707.1 The Director shall establish reporting systems which will include the following:

(a) The data on the criteria for determining the eligibility of youth;

(b) The method used in selection of participants;

(d) The placement objectives achieved; and

(e) The assessment of program performance.

707.2 Participating employers shall be required to cooperate in the reporting activity cited under §707.1.

7 DCMR § 708 COMPLAINT PROCEDURES

708.1 Complaints may be brought by an individual or organization including, but not limited to, the following:

(a) Program participants;

(b) Employers;

(d) Staff of the employer;

(e) Applicants for participation;

(f) Labor unions; and

(g) Community based organizations.

708.2 With the exception of complaints alleging fraud, forgery, or other criminal activity, the filing of a complaint shall be made within ten (10) days of the alleged occurrence.

708.3 Participants shall be provided, upon enrollment into the In-School Employment Program, a written description of the complaint procedures, including notification of their right to file a complaint and instructions on how to file.

708.4 The complaint resolution procedure shall include provision for the following:

(a) Opportunity to file a complaint. Each complaint shall be writing;

(b) Opportunity for informal resolution of the complaint;

(c) Written notification of an opportunity for a hearing when an informal resolution has not been accomplished. The notice shall establish the procedure for requesting a hearing and shall describe the elements in the hearing procedures, including those set forth in paragraph (f) of this subsection;

(d) Opportunity to amend the complaint prior to a hearing;

(e) Opportunity for a hearing within twenty (20) days of filing the complaint; and

(f) A final, written decision on the complaint which shall be made within thirty (30) days of the complaint and shall include the following:

(1) The reason(s) for the decision; and

(2) A statement that the procedures delineated in this section have been followed.

708.5 A hearing, when requested, shall be provided within twenty (20) days after filing the complaint. The hearing procedures shall include the following:

(a) Written notice of the date, time, and place of the hearing, a description of the manner in which it will be conducted, and the issue(s) to be decided;

(b) Opportunity to be accompanied by a representative;

(d) Opportunity to have relevant documents produced by the In-School Employment Program or its components;

(e) Opportunity to question witnesses;

(f) The right to an impartial Hearing Officer selected by the Director; and

(g) A written decision which shall include a summary of facts, the reason(s) for the decision, and a statement of remedies to be applied.

708.6 Appeals from decisions of the Hearing Officer may be filed with the Director.

708.7 Whenever a complaint is made, it shall be investigated if it alleges that any person, participant employer, or contract is failing to comply with the requirements of the Act, a derivative agreement, or these regulations.

708.8 If the Director, Hearing or Investigation Officer determines that a complaint, an investigation, or testimony involves criminal activity which may violate the laws of the District of Columbia, the United States or other jurisdiction, this determination shall be communicated directly to the appropriate law enforcement agency for action.

708.9 Nothing in this section shall prohibit the Director from requiring that a system of grievance processing and just adjudication be implemented by employers for the use of participating youth.

708.10 Nothing in this section shall prohibit a participating youth from filing a complaint or request for investigations and hearings. Complaints shall be maintained in the Office of the Director.

708.11 Records of all investigations, hearings, complaints and request for investigation shall be maintained in the Office of the Director.

7 DCMR § 799 DEFINITIONS

799.1 When used in this Chapter, each of the following terms shall have the meaning ascribed:

Academic Credit - the credit for education, training or work experience applicable towards a secondary school diploma, consistent with applicable D.C. laws, regulations, and policy, and the requirements of an accredited educational agency or institution.

Act - the Youth Employment of 1979 (D.C. Law 3-46).

Alternative Working Arrangements - work schedules which deviate from the regular work week. Arrangements may include staggered hours, flexible hours, flex-time, compressed work weeks, part-time employment or job and work sharing.

Director - the Director of Employment Services or the Director's designee, contract officer, representative or contractual agents.

Economically Disadvantaged - a person who is one of the following:

(a) A member of a family which receives public assistance;

(b) A member of a family whose income during the previous six (6) months on an annualized basis was such that:

(1) The family would have qualified for public assistance if they had applied for the assistance;

(2) The income does not exceed the poverty level; or

(3) The income does not exceed the seventy percent (70%) of the lower living;

(d) A person whose status presents significant barriers to employment such as the following:

(1) A client of a sheltered workship;

(2) A handicapped individual;

(3) A person residing in an institution or facility providing twenty-four (24) hour support, such as a prison, a hospital or community care facility; or

(4) A regular outpatient of a mental hospital, rehabilitation, facility or similar institution.

Family - one (1) or more persons living in a single residence who are related to each other by blood, marriage, or adoption. A step-child or step-parent shall be considered to be related by marriage.

Handicapped Individual - any person who has a physical or mental disability which constitutes a substantial barrier to employment and who can benefit from services under this program.

In-School - the status of being enrolled full-time and attending a secondary, trade, technical or vocational school. To maintain one's in-school status an individual shall be currently enrolled and in regular attendance during the semester or quarter, or have successfully completed the previous semester if applying for the In-School program after the summer vacation.

In-School Youth - a person, fourteen (14) through twenty-one (21) who is as follows:

(a) Is currently enrolled full-time in, and attending a secondary trade, technical or vocational school; and

(b) Has not completed high school and is attending or scheduled to attend, on a full-time basis, a program leading to a secondary school diploma. Full-time attendance shall be defined by the requirements of the D.C. Board of Education.

Job Restructuring - the procedure which includes the following:

(a) Identifying the separate tasks that comprise a job or group of jobs;

(b) Developing a career ladder which builds upward from the new positions containing the lesser skilled tasks to regular jobs requiring increased skills. A restructured job differs from the original one in terms of skills, knowledge, abilities and experience needed to perform the work.

Participant - an individual who is as follows:

(a) Declared eligible upon enrollment; and

(b) Receiving employment and training funded under the Act following enrollment.

Participant Employers - both profitmaking and non-profitmaking persons, associations, partnerships, and corporations, as well as the District of Columbia Government and other public agencies which enter into formal agreements with the Director for participation in the In-School employment Program.

Public Assistance - a federal or District Government cash payment for which eligibility is determined by a need or income test.

Resident - a person who has permanent dwelling or home in the District of Columbia. A District resident shall also include those persons who are permanent resident aliens, or aliens who have been permitted to accept permanent employment in the United States by the U.S. Immigration and Naturalization Service.

Unsubsidized Placement - employment secured for or by a participant which is not subsidized by funds from the Act.

Work Experience - work consisting of a short-term or part-time employment assignment with an employer or employing agency. It shall be designed to enhance the employability of individuals through the development of good work habits and basic work skills. It utilized for those students who have either never worked or who have not worked for an extended period of time, such as students, youth in transition from school to employment, or youth who have no definite employment goals.

7-8 YOUTH EMPLOYMENT: TRAINING AND RETRAINING EMPLOYMENT PROGRAM

7 DCMR § 800 AUTHORITY AND PURPOSE

800.1 The District of Columbia Training and Retraining for Employment program is established by Section 2(a)(5) of the Youth Employment Act of 1979 (D.C. Law 4-124, D.C. Code, Sec. 36-702).

800.2 The purpose of the program is to increase the employability of unemployed or underemployed District of Columbia residents through pre-employment skills training and retraining programs. The program is intended to improve or restructure the skill levels of residents who are 16 or older and who are in need of training or retraining to secure unsubsidized employment.

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6947 (November 2, 1990).

7 DCMR § 801 ELIGIBILITY

801.1 To participate in the training or retraining program, a person shall meet all of the following basic eligibility requirements:

(a) For the Training Program:

(1) Be a resident of the District of Columbia;

(2) Be 16 or older;

(3) Have completed at least (12) years of education or equivalent, or have been separated from a formal educational system for more than (30) days; and

(4) Be unemployed or underemployed;

(b) For the Retraining Program:

(1) Be a resident of the District of Columbia;

(2) Be 16 or older; and

(3) Be unemployed or underemployed and have limited opportunities for employment, reemployment or upward mobility in the same or a similar occupation. This includes older individuals who may have substantial barriers to employment.

801.2 Priority shall be given to persons who are economically disadvantaged or have other barriers to employment.

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6947, 6948 (November 2, 1990).

7 DCMR § 802 PARTICIPANT TRAINING/RETRAINING/SERVICES

802.1 Approved classroom training shall be in occupational areas where labor market statistical projections indicate growth. Training shall also include a curriculum that is designed to meet the employment needs of businesses and industries in the local economy.

802.2 The Director shall approve combinations of activities in concert with training and retraining programs. These activities may include classroom skills training with the On-the-Job Training (OJT) Program and the Out-of-School Year-Round (OSYR) Program, pursuant to D.C. Code, Title 36, Sec. 702(a)(2), (3), and (4).

802.3 The Training and Retraining for Employment Program may include, but is not limited to the following support services for program participants:

(a) Day Care;

(b) Preemployment Orientation;

(d) Employability Assessment;

(e) Job Development;

(f) Educational Development;

(g) Job Search;

(h) Job Placement;

(i) Transportation;

(j) Allowances or Stipends; and

(k) Participant training fees which may include but are not limited to uniform, tool and licensing fees.

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6948, 6949 (November 2, 1990).

7 DCMR § 803 PARTICIPANT RECRUITMENT, CERTIFICATION AND REFERRAL

803.1 The Department or any participating service deliverer (at the discretion of the Department) shall recruit program participants.

803.2 The Department shall be responsible for certifying the program eligibility of applicants and referring them to participating service deliverers.

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6949 (November 2, 1990).

7 DCMR § 804 AGREEMENTS WITH PARTICIPATING SERVICE DELIVERERS

804.1 Participating service deliverers shall enter into formal written agreements with the Director to provide employment and training.

804.2 The agreement shall contain an assurance by the service deliverer that only eligible individuals referred by the Department will receive training as approved by the Director.

804.3 The agreement shall also provide a detailed work statement which describes the service deliverer's training objectives, curriculum, and benefits to be acquired by the program participants as a direct result of the training received.

804.4 Participating service deliverers who administer training and retraining programs will be responsible for meeting the performance standards as specified in their contract or agreement.

804.5 Service deliverers shall adhere to all directives that relate to fraud and abuse as set forth in D.C. laws, rules, and written agreements.

804.6 Service deliverers shall agree to submit properly certified reports as required to the Director.

804.7 Service deliverers shall comply with all applicable laws and regulations.

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6949, 6950 (November 2, 1990).

7 DCMR § 805 MONITORING

805.1 The Director shall provide monitoring of and technical assistance to participating service deliverers utilizing departmental staff in carrying out the Department's responsibilities under the Training and Retraining for Employment Program (TREP).

805.2 Monitoring shall include the periodic visitation and review of service deliverers programs.

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6950 (November 2, 1990).

7 DCMR § 806 TERMINATIONS

806.1 All participant terminations from an employment and training program shall be in accordance with the service deliver’s written agreement with the Director.

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6950 (November 2, 1990).

7 DCMR § 807 GRIEVANCES

807.1 If a participant is terminated from an employment and training program that is covered under the Act and he or she disagrees with the cause of termination, the participant may submit a grievance complaint to the Director after having exhausted the procedures established by the training provider and in accordance with Departmental policies on grievances.

807.2 The Director shall, upon request, provide for a hearing within twenty (20) days after the filing of the grievance complaint. The hearing procedures shall include the following:

(a) Written notice of the date, time, and place of the hearing, a description of the manner in which it will be conducted, and the issue(s) to be decided;

(b) Opportunity to be accompanied by a representative;

(d) Opportunity to have relevant documents produced by the Training and Retraining for Employment Program or its components;

(e) Opportunity to question witnesses;

(f) The right to an impartial Hearing Officer selected by the Director; and

(g) A written decision which shall include a summary of facts, the reason(s) for the decision, and a statement of remedies to be applied.

807.3 Appeals from decisions of the Hearing Officer may be filed with the Director

807.4 If the Director, Hearing or Investigation Officer determines that a complaint, an investigation, or testimony involves criminal activity which may violate the laws of the District of Columbia, the United States or other jurisdiction, this determination shall be communicated directly to the appropriate law enforcement agency for action.

807.5 Records of all hearings and request for hearings shall be maintained in the Office of the Director.

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6950, 6951 (November 2, 1990).

7 DCMR § 808 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 809 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 810 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 811 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 812 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 813 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 814 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 815 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 816 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 817 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 818 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 819 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 820 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 821 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 822 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 823 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 824 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 825 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 826 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 827 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 828 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 829 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 830 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 831 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 832 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 833 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 834 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 835 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 836 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 837 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 838 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 839 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 840 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 841 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 842 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 843 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 844 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 845 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 846 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 847 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 848 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 849 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 850 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 851 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 852 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 853 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 854 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 855 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 856 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 857 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 858 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 859 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 860 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 861 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 862 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 863 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 864 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 865 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 866 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 867 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 868 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 869 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 870 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 871 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 872 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 873 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 874 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 875 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 876 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 877 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 878 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 879 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 880 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 881 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 882 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 883 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 884 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 885 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 886 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 887 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 888 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 889 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 890 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 891 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 892 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 893 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 894 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 895 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 896 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 897 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 898 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951 (November 2, 1990).

7 DCMR § 899 DEFINITIONS

899.1 When used in this chapter, the following terms shall have the meaning ascribed.

Act - the Youth Employment Act of 1979, as amended.

Applicant - an individual who is applying for employment or training.

Department - the Department of Employment Services.

Director - the Director of the Department of Employment Services, his/her designee or contracting officer.

Economically Disadvantaged - a person who is either:

(a) A member of a family which receives public assistance;

(b) A member of a family whose income during the previous twelve (12) months was such that:

(1) The family would have qualified for public assistance if they had applied for such assistance; or

(2) The income does not exceed the poverty level; or

(3) The income does not exceed seventy (70) percent of the lower living standard income level.

Entry Level - the lowest position in any promotional line, as defined locally by personnel regulation, past practices, and collective bargaining agreements.

Family - one or more persons living in a single residence who are related to each other by blood, marriage, or adoption. A step-child or step-parent shall be considered to be related by marriage.

Handicapped Individual - a person who has a physical, mental or emotional disability which constitutes a substantial barrier to employment who can benefit from services under this program.

Individuals with Other Barriers - a person whose status presents significant barriers to employment including but not limited to a person who is:

(a) A client of a sheltered workshop;

(b) A handicapped individual;

(c) A person residing in an institution or facility providing 24-hour support such as a prison, a hospital or community care facility;

(d) A regular outpatient of a hospital, rehabilitation facility, or similar institution.

Participant - an individual who is (a) declared eligible upon intake; and (b) receiving employment and training services funded under the Act following intake.

Participating Service Deliverers - both profit and and nonprofit organizations, associations, partnerships, corporations, as well as District and other public agencies which enter into contract/agreements with the Director for providing employment and training programs. The Department may also act as a service deliverer.

Public Assistance - Federal or District Government cash payment for which eligibility is determined by a need or income test.

Resident - a person who has a permanent dwelling or home in the District of Columbia. A District resident shall also include individuals who are permanent resident aliens, or other aliens who have been permitted to accept permanent employment in the United States by the U.S. Immigration and Naturalization Service, or a homeless person who is eligible for District of Columbia shelter services.

Retraining - the activity of conducting a program that is designed to teach new skills to residents who are displaced from their place of employment or are underemployed and who need additional training to secure unsubsidized employment.

Training - the activity of conducting a program that is designed to provide individuals with technical, vocational, or educational skills required to perform a job.

Unsubsidized Placement - permanent employment which is not subsidized by funds from this Act.

Underemployed - either (a) persons who are working part-time but seeking full-time work; or (b) persons who are working full-time but whose current annualized wage rate is not in excess of "for a family of one" the higher of either:

(1) The poverty level; or

(2) 70 percent of the lower living standard income level.

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6951-6953 (November 2, 1990).

7-9 WAGE-HOUR RULES

7 DCMR § 900 GENERAL PROVISIONS

900.1 The provisions of this Chapter are promulgated pursuant to authority set forth in Reorganization Plans No. 1 of 1978 and 1980 and the District of Columbia Minimum Wage Act Revision Act of 1992, D.C. Law 9-248, effective March 25, 1993.

900.2 The Office of Wage-Hour, District of Columbia Department of Employment Services, is vested with the authority to require employers to pay minimum wages, overtime compensation and related benefits to persons employed by employers other than the United States or District of Columbia governments.

900.3 The Office of Wage-Hour, District of Columbia Department of Employment Services, plans and administers a program to ensure compliance with the District of Columbia Minimum Wage Act Revision Act, Wage Payment and Wage Collection Law, Seats Law and the Wage Garnishment Law.

900.4 Effective October 1, 1993, the minimum wage in the District of Columbia shall be determined based on the minimum wage rate set from time to time by the United States Government, plus $1.00.

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 901 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 902 PAYMENT OF MINIMUM WAGE

902.1 Commencing October 1, 1993, the minimum wage required to be paid to any employee by any employer in the District of Columbia shall be the minimum wage set by the United States Government, plus $1.00, except that this requirement shall not apply to Wage Order Number 5, "Laundry and Dry Cleaning Occupations," issued by the former Wage-Hour Board.

902.2 Irrespective of the basis of payment, whether time rate, piece rate, balms or commission, employers shall unconditionally pay employees all earned wages at least twice during each calendar month, on regular pay days, designated in advance by the employer, at not less than the minimum wage rate required.

902.3 The minimum wage provision shall not apply with respect to an individual:

(a) Employed in a bona fide executive, administrative or professional capacity;

(b) Employed as an outside salesperson; or

902.4 The minimum wage provision does not apply in instances where other laws or regulations establish minimum rates for the following:

(a) Handicapped: All handicapped workers shall be paid at a rate not less than the minimum wage, except in those instances where a certificate has been issued by the United States Department of Labor that authorizes the payment of less to handicapped workers under section 214(c) of the Fair Labor Standards Act.

(b) Job Training Partnership Act (JTPA): Individuals employed under provisions of the Job Training Partnership Act shall be paid wages pursuant to that Act.

(c) Older Americans Act (OAA): Individuals employed under provisions of the Older Americans Act shall be paid pursuant to that Act.

(d) Youth Employment Act (YEA): Individuals employed under provisions of the Youth Employment Act shall be paid wages pursuant to that Act

(e) [REPEALED].

(f) Students: Students employed by institutions of higher education may be paid the minimum wage established by the United States Government,

(g) Minors: Individuals under the age of 18 years old may be paid the minimum wage established by the United States Government.

902.5 The overtime provision shall not apply with respect to an individual:

(a) Employed as a private household worker who lives on the premises of the employer.

(b) Employed as a companion for the aged or infirm.

902.6 Overtime compensation under the Act shall be paid in accordance with Title 29 Code of Federal Regulations, Part 778, Overtime Compensation Under -the Fair Labor Standards Act of 1938, as amended, except that Subpart A (General Considerations), Subpart E (Exceptions From the Regular Rate Principles), Subpart G (Miscellaneous), and Section 778.101 (Maximum Non-overtime Hours) shall have no force and effect.

History

SOURCE: Final Rulemaking published at 41 DCR 187 (January 14, 1994); as amended by the Wage Theft Prevention Amendment Act of 2014, effective February 26, 2015 (D.C. Law 20-157; 61 DCR 10157 (October 3, 2014)). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 902

7 DCMR § 903 GRATUITIES

903.1 The employer shall advise the employee of provisions as they relate to determining wages based on gratuities and an employer taking a gratuity allowance from the wage of an employee shall have the burden of proving the employee received gratuities at least as much as the gratuity allowance taken.

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 904 LODGING AND MEALS

904.1 When the employer furnishes lodging to the employee, allowances may be taken at a level which does not exceed more than 80 percent of the rental value as determined by a comparison with the value of similar accommodations in the vicinity of those furnished.

904.2 Allowances for meals may be taken at a rate not to exceed $2.12 for each meal made available to the employee by the employer. An allowance for not more than one meal shall be taken for four or less hours of work; over four hours of work, an allowance of not more than two meals shall be taken. Allowances may be taken for meals at a rate not to exceed $6.36 per day for an employee who lives at the place of employment.

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 905 COMMISSIONS

905.1 No employer shall be deemed to have violated the provisions, as outlined in Section 4(c) of the Act, by employing any employee of a retail or service establishment in excess of 40 hours per work week provided that:

(a) The regular rate of pay of such employee is in excess of one and one-half times the minimum wage; and

(b) More than half of the employee's compensation for a representative period (not less than one month) represents commissions on goods or services.

905.2 In determining the proportion of compensation representing commissions, all earnings resulting from the application of a bona fide commission rate shall be deemed commissions on goods or services without regard to whether the computed commissions exceed the draw or guarantee.

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 906 SPLIT SHIFTS

906.1 In addition to the wages required by this Chapter, the employer shall pay the employee for one additional hour at the minimum wage for each day during which the employee works a split shift. This provision is not applicable to an employee who lives on the premises of the employer.

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 907 MINIMUM DAILY WAGE

907.1 The employer shall pay the employee for at least four (4) hours for each day on which the employee reports for work under general or specific instructions but is given no work or is given less than four hours of work, except that if the employee is regularly scheduled for less than four hours a day, such employee shall be paid for the hours regularly scheduled. The minimum daily wage shall be calculated as follows: payment at the employee's regular rate for the hours worked, plus payment at the minimum wage for the hours not worked, as described above.

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 908 UNIFORMS AND PROTECTIVE CLOTHING

908.1 In addition to the wages required by this Chapter, the employer shall pay the cost of purchase, maintenance and cleaning of uniforms and protective clothing (including hats and shoes) required by the employer or by law, except that in lieu of purchasing, maintaining and cleaning plain and washable uniforms the employer may pay 15 cents ($0.15) per hour in addition to the wages required by this Chapter, with the weekly maximum payment required being six dollars ($6.00). Such payment of 15 cents ($0.15) per hour shall not apply in the case of protective clothing.

908.2 When the employer purchases but the employee maintains and cleans plain and washable uniforms, the payment shall be 10 cents ($0.10) per hour in addition to the wages required by this Chapter.

908.3 When the employer cleans and maintains but the employee purchases plain and washable uniforms, the payment shall be 8 cents ($0.08) per hour in addition to the wages required by this Chapter.

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 909 TRAVEL EXPENSES

909.1 In addition to the wages required by this Chapter, the employer shall pay the cost of travel expenses incurred by the employee in performance of the business of the employer.

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 910 TOOLS

910.1 In addition to the wages required by this Chapter, the employer shall pay the cost of purchasing and maintaining any tools required of the employee in the performance of the business of the employer.

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 911 MAINTENANCE OF PAYROLL RECORDS

911.1 Every employer shall make, keep and preserve for a period of not less than three (3) years an accurate record for each employee containing the following information:

(a) Full name of employee, including last, first and middle initial;

(b) Social Security Number;

(d) Address of the employee, including ZIP Code;

(e) Date of birth;

(f) Regular hourly rate of pay, total number of hours worked each work day and each workweek and time of day and day of week on which employee's workweek begins;

(g) Basis on which wages are paid;

(h) A daily record of the hours of beginning and stopping work and the hours of beginning and ending the meal recess if the employee works a split shift;

(i) Total daily or weekly straight-time earnings and excess overtime earnings for the workweek, or total earnings for non-overtime hours worked during the workweek and total earnings for overtime hours worked during the workweek;

(j) Total gross and net wages paid each pay period and deductions from and/or additions to wages;

(k) Date of payment and the pay period covered by the payment.

(l) In addition to the information required in Section 903, if the employee is a tipped employee, the application of tips to the minimum wage rate must be accurately documented and retained by the employer.

(m) In addition to the information required in Section 905, if the employee is paid by commission, the following information shall also be retained by the employer:

(1) Notation on the payroll record to readily identify each employee receiving wages based on commission;

(2) An indication for each workweek during which the employee's regular rate of pay is in excess of one and one-half (1 1/2) times the applicable minimum hourly rate;

(3) A copy of an Agreement or a written summary of the terms under which the employee and employer have formally understood the Commission basis of compensation. The Agreement or written summary must show the applicable representative period, the date it was entered into and the period in which it remains in effect; and

(4) Total compensation paid each pay period showing separately the amount of commission and the amount of non-commission straight-time earnings.

911.2 Every employer shall furnish to each employee at the time of payment of wages an itemized statement showing the date of the wage payment, gross wages paid (showing separately the earnings for overtime and non-overtime hours worked), an itemization of allowances and deductions from and additions to wages, net wages paid and hours worked during the pay period. For an employee who is paid commissions, the itemized statement shall also show separately the amount of commissions and the amount of noncommission straight-time earnings.

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 912 POSTINGS

912.1 Every employer who is subject to any provision of this Chapter shall keep a copy or summary of this Chapter and any applicable postings or literature in a form prescribed or approved by the Department of Employment Services, posted in a conspicuous and accessible place in or about the premises at which any employee covered is employed.

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 913 INVESTIGATION

913.1 The Department of Employment Services shall have the authority to:

(a) Investigate and ascertain the wages of persons employed in any occupation in the District of Columbia;

(b) Enter and inspect the place of business or employment of any employer in the District of Columbia in order to:

(1) Examine and inspect any books, registers, payrolls and other records as may be deemed necessary or appropriate;

(2) Copy books, registers, payrolls and other records as may be deemed necessary or appropriate; and

(3) Question an employee for the purpose of ascertaining whether the provisions of this Chapter have been and are being complied with, and

(c) Require from any employer full and correct statements in writing, including sworn statements, with respect to wages, hours, names, addresses and any other information that pertains to the employment of the employees as may be deemed appropriate or necessary to carry out the purposes of this Chapter.

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 914 COLLECTION OF UNPAID WAGES

914.1 Any employer who fails to pay the wages required by this Chapter shall pay to the Office of Wage-Hour, Department of Employment Services, an amount equal to the unpaid wages, which amount shall be distributed by the Office of Wage-Hour to employees due said unpaid wages.

914.2 Unpaid wages which cannot be paid due to the inability to locate employees or refusal of employees to accept said unpaid wages shall escheat to the District of Columbia Government in accordance with D.C. Code, Sections 42-201-242.

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 915 PROHIBITED ACTS

No employer shall charge an employee or require or permit an employee to pay directly or indirectly to the employer for breakages, walkouts, mistakes on customer checks and similar charges, or to pay fines, assessments or charges if the payment reduces the wages below the minimum wage.

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 916 PRESERVATION OF EXISTING RIGHTS AND LIABILITIES

Rights accrued and liabilities incurred prior to October 1, 1993, under Wage Orders issued by the Wage-Hour Board, shall be governed by provisions of the respective Wage Order issued by the Wage-Hour Board.

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 917 SEPARABILITY

If any provision of this Chapter or the application thereof to any person or circumstance is held invalid, the remainder of the Chapter and the application thereof to other persons or circumstances shall not be affected thereby.

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 918 RESERVED

History

SOURCE: Amended by D.C.ACT 9-195 at 39 DCR 3198 (May 8, 1992); as amended by Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 919 RESERVED

History

SOURCE: Amended by D.C.ACT 9-195 at 39 DCR 3198 (May 8, 1992); as amended by Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 920 RESERVED

History

SOURCE: Amended by D.C.ACT 9-195 at 39 DCR 3198 (May 8, 1992); as amended by Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 921 RESERVED

History

SOURCE: Amended by D.C.ACT 9-195 at 39 DCR 3198 (May 8, 1992); as amended by Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 922 RESERVED

History

SOURCE: Amended by D.C.ACT 9-195 at 39 DCR 3198 (May 8, 1992); as amended by Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 923 RESERVED

History

SOURCE: Amended by D.C.ACT 9-195 at 39 DCR 3198 (May 8, 1992); as amended by Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 924 RESERVED

History

SOURCE: Amended by D.C.ACT 9-195 at 39 DCR 3198 (May 8, 1992); as amended by Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 925 RESERVED

History

SOURCE: Amended by D.C.ACT 9-195 at 39 DCR 3198 (May 8, 1992); as amended by Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 926 RESERVED

History

SOURCE: Amended by D.C.ACT 9-195 at 39 DCR 3198 (May 8, 1992); as amended by Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 927 RESERVED

History

SOURCE: Amended by D.C.ACT 9-195 at 39 DCR 3198 (May 8, 1992); as amended by Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 928 RESERVED

History

SOURCE: Amended by D.C.ACT 9-195 at 39 DCR 3198 (May 8, 1992); as amended by Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 929 RESERVED

History

SOURCE: Amended by D.C.ACT 9-195 at 39 DCR 3198 (May 8, 1992); as amended by Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 930 RESERVED

History

SOURCE: Amended by D.C.ACT 9-195 at 39 DCR 3198 (May 8, 1992); as amended by Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 931 RESERVED

History

SOURCE: Amended by D.C.ACT 9-195 at 39 DCR 3198 (May 8, 1992); as amended by Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 932 RESERVED

History

SOURCE: Amended by D.C.ACT 9-195 at 39 DCR 3198 (May 8, 1992); as amended by Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 933 RESERVED

History

SOURCE: Amended by D.C.ACT 9-195 at 39 DCR 3198 (May 8, 1992); as amended by Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 934 RESERVED

History

SOURCE: Amended by D.C.ACT 9-195 at 39 DCR 3198 (May 8, 1992); as amended by Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 935 RESERVED

History

SOURCE: Amended by D.C.ACT 9-195 at 39 DCR 3198 (May 8, 1992); as amended by Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 936 RESERVED

History

SOURCE: Amended by D.C.ACT 9-195 at 39 DCR 3198 (May 8, 1992); as amended by Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 937 RESERVED

History

SOURCE: Amended by D.C.ACT 9-195 at 39 DCR 3198 (May 8, 1992); as amended by Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 938 RESERVED

History

SOURCE: Amended by D.C.ACT 9-195 at 39 DCR 3198 (May 8, 1992); as amended by Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 939 RESERVED

History

SOURCE: Amended by D.C.ACT 9-195 at 39 DCR 3198 (May 8, 1992); as amended by Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 940 RESERVED

History

SOURCE: Amended by D.C.ACT 9-195 at 39 DCR 3198 (May 8, 1992); as amended by Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 941 RESERVED

History

SOURCE: Amended by D.C.ACT 9-195 at 39 DCR 3198 (May 8, 1992); as amended by Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 942 RESERVED

History

SOURCE: Amended by D.C.ACT 9-195 at 39 DCR 3198 (May 8, 1992); as amended by Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 943 RESERVED

History

SOURCE: Amended by D.C.ACT 9-195 at 39 DCR 3198 (May 8, 1992); as amended by Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 944 RESERVED

History

SOURCE: Amended by D.C.ACT 9-195 at 39 DCR 3198 (May 8, 1992); as amended by Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 945 RESERVED

History

SOURCE: Amended by D.C.ACT 9-195 at 39 DCR 3198 (May 8, 1992); as amended by Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 946 RESERVED

History

SOURCE: Amended by D.C.ACT 9-195 at 39 DCR 3198 (May 8, 1992); as amended by Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 947 RESERVED

History

SOURCE: Amended by D.C.ACT 9-195 at 39 DCR 3198 (May 8, 1992); as amended by Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 948 RESERVED

History

SOURCE: Amended by D.C.ACT 9-195 at 39 DCR 3198 (May 8, 1992); as amended by Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 949 RESERVED

History

SOURCE: Amended by D.C.ACT 9-195 at 39 DCR 3198 (May 8, 1992); as amended by Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 950 RESERVED

History

SOURCE: Amended by D.C.ACT 9-195 at 39 DCR 3198 (May 8, 1992); as amended by Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 951 RESERVED

History

SOURCE: Amended by D.C.ACT 9-195 at 39 DCR 3198 (May 8, 1992); as amended by Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 952 RESERVED

History

SOURCE: Amended by D.C.ACT 9-195 at 39 DCR 3198 (May 8, 1992); as amended by Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 953 RESERVED

History

SOURCE: Amended by D.C.ACT 9-195 at 39 DCR 3198 (May 8, 1992); as amended by Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 954 RESERVED

History

SOURCE: Amended by D.C.ACT 9-195 at 39 DCR 3198 (May 8, 1992); as amended by Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 955 RESERVED

History

SOURCE: Amended by D.C.ACT 9-195 at 39 DCR 3198 (May 8, 1992); as amended by Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 956 RESERVED

History

SOURCE: Amended by D.C.ACT 9-195 at 39 DCR 3198 (May 8, 1992); as amended by Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 957 RESERVED

History

SOURCE: Amended by D.C.ACT 9-195 at 39 DCR 3198 (May 8, 1992); as amended by Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 958 RESERVED

History

SOURCE: Amended by D.C.ACT 9-195 at 39 DCR 3198 (May 8, 1992); as amended by Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 959 RESERVED

History

SOURCE: Amended by D.C.ACT 9-195 at 39 DCR 3198 (May 8, 1992); as amended by Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 960 RESERVED

History

SOURCE: Amended by D.C.ACT 9-195 at 39 DCR 3198 (May 8, 1992); as amended by Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 961 RESERVED

History

SOURCE: Amended by D.C.ACT 9-195 at 39 DCR 3198 (May 8, 1992); as amended by Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 962 RESERVED

History

SOURCE: Amended by D.C.ACT 9-195 at 39 DCR 3198 (May 8, 1992); as amended by Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 963 RESERVED

History

SOURCE: Amended by D.C.ACT 9-195 at 39 DCR 3198 (May 8, 1992); as amended by Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 964 RESERVED

History

SOURCE: Amended by D.C.ACT 9-195 at 39 DCR 3198 (May 8, 1992); as amended by Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 965 RESERVED

History

SOURCE: Amended by D.C.ACT 9-195 at 39 DCR 3198 (May 8, 1992); as amended by Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 966 RESERVED

History

SOURCE: Amended by D.C.ACT 9-195 at 39 DCR 3198 (May 8, 1992); as amended by Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 967 RESERVED

History

SOURCE: Amended by D.C.ACT 9-195 at 39 DCR 3198 (May 8, 1992); as amended by Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 968 RESERVED

History

SOURCE: Amended by D.C.ACT 9-195 at 39 DCR 3198 (May 8, 1992); as amended by Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 969 RESERVED

History

SOURCE: Amended by D.C.ACT 9-195 at 39 DCR 3198 (May 8, 1992); as amended by Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 970 RESERVED

History

SOURCE: Amended by D.C.ACT 9-195 at 39 DCR 3198 (May 8, 1992); as amended by Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 971 RESERVED

History

SOURCE: Amended by D.C.ACT 9-195 at 39 DCR 3198 (May 8, 1992); as amended by Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 972 RESERVED

History

SOURCE: Amended by D.C.ACT 9-195 at 39 DCR 3198 (May 8, 1992); as amended by Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 973 RESERVED

History

SOURCE: Amended by D.C.ACT 9-195 at 39 DCR 3198 (May 8, 1992); as amended by Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 974 RESERVED

History

SOURCE: Amended by D.C.ACT 9-195 at 39 DCR 3198 (May 8, 1992); as amended by Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 975 RESERVED

History

SOURCE: Amended by D.C.ACT 9-195 at 39 DCR 3198 (May 8, 1992); as amended by Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 976 RESERVED

History

SOURCE: Amended by D.C.ACT 9-195 at 39 DCR 3198 (May 8, 1992); as amended by Notice of Final Rulemaking published at 41 DCR 187 (January 14, 1994).

7 DCMR § 977 AMOUNT OF WAGES OF EMPLOYEES WHICH MAY BE SUBJECTED TO GARNISHMENT PROCEEDINGS FOR PAY PERIODS OTHER THAN WEEKLY

977.1 The maximum part of the disposable wages of any individual for pay periods other than weekly pay periods which may be subjected to garnishment are established as follows:

(a) Where the pay period is for less than one (1) workweek, the exemption from garnishment shall be the same as that for a weekly pay period. Thus, so long as the Federal minimum wage prescribed by §6(a)(1) of the Fair Labor Standards Act of 1938 is three dollars and thirty-five cents ($3.35) an hour, the following formula shall apply:

(1) If an individual's disposable wages paid or payable for a pay period of less than one (1) workweek are one hundred dollars and fifty cents ($100.50), thirty times three dollars and thirty-five cents (30 x $3.35) or less, wages may not be garnished in any amount;

(2) If an individual's disposable wages paid or payable for a pay period of less than one (1) workweek are more than one hundred dollars and fifty cents ($100.50), but less than one hundred thirty-four dollars ($134), only the amount above one hundred dollars and fifty cents ($100.50) of disposable wages shall be subject to garnishment; or

(3) If an individual's disposable wages paid or payable for a pay period of less than one (1) workweek are one hundred thirty-four dollars ($134) or more, not more than twenty-five percent (25%) of disposable wages shall be subject to garnishment.

(b) Where the pay period is longer than one (1) workweek, the weekly statutory exemption formula shall be transformed to a formula, providing equivalent restrictions on wage garnishment as follows:

(1) The twenty-five percent (25%) part of the formula shall apply to the aggregate disposable wages for all the work-weeks or fractions thereof compensated by the pay for the pay period;

(2) The "multiple" of the Federal minimum hourly wage equivalent to that applicable to the disposable wages for one (1) week shall be represented by the following formula: the number of workweeks, or fractions thereof times (x) thirty (30) times three dollars and thirty-five cents ((x) x 30 x $3.35) (the applicable Federal minimum wage). For the purpose of this formula, a calendar month is considered to consist of four and one-third (4 1/3) workweeks. Thus, so long as the Federal minimum wage is three dollars and thirty five cents ($3.35) an hour, the "multiple" applicable to the disposable wages shall be computed as follows:

(i) For a two week period, two hundred and one dollars ($201, two times thirty times three dollars and thirty-five cents (2 x 30 x $3.35);

(ii) For a monthly period, four hundred thirty-five dollars and fifty cents ($435.50), four and one-third times thirty times three dollars and thirty-five cents (4 1/3 x 30 x $3.35); and

(iii) For a semimonthly period, two hundred and seventeen dollars and seventy-five cents ($217.75), two and one-sixth times thirty times three dollars and thirty-five cents (2 1/6 x 30 x $3.35).

(3) The "multiple" for any other pay period longer than one (1) week shall be computed in a manner consistent with this paragraph.

977.2 This section became effective January 1, 1981.

7 DCMR § 978 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 197(January 14, 1994).

7 DCMR § 979 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 197(January 14, 1994).

7 DCMR § 980 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 197(January 14, 1994).

7 DCMR § 981 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 197(January 14, 1994).

7 DCMR § 982 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 197(January 14, 1994).

7 DCMR § 983 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 197(January 14, 1994).

7 DCMR § 984 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 197(January 14, 1994).

7 DCMR § 985 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 197(January 14, 1994).

7 DCMR § 986 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 197(January 14, 1994).

7 DCMR § 987 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 197(January 14, 1994).

7 DCMR § 988 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 197(January 14, 1994).

7 DCMR § 989 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 197(January 14, 1994).

7 DCMR § 990 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 197(January 14, 1994).

7 DCMR § 991 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 197(January 14, 1994).

7 DCMR § 992 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 197(January 14, 1994).

7 DCMR § 993 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 197(January 14, 1994).

7 DCMR § 994 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 197(January 14, 1994).

7 DCMR § 995 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 197(January 14, 1994).

7 DCMR § 996 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 197(January 14, 1994).

7 DCMR § 997 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 197(January 14, 1994).

7 DCMR § 998 RESERVED

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 197(January 14, 1994).

7 DCMR § 999 DEFINITIONS

999.1 The following words and phrases used in these sections applicable to the District of Columbia Wage Payment and Wage Collection Law shall have the following meanings ascribed:

Administrative Capacity - A person employed in a bona fide administrative capacity shall mean an employee who meets all of these tests:

(1) Primary duty must be either (a) responsible office or nonmanual work (in other words, "white collar" work) directly related to management policies or general business operations or (b) responsible work that is directly related to academic instructions or training carried on in the administration of a school system or educational establishment; and

(2) Customarily and regularly exercise discretion and independent judgment, as distinguished from using skills and following procedures. He or she must have authority to make important decisions; and

(3) Must (a) regularly assist a proprietor or a bona fide executive or administrative employee or (b) perform work under only general supervision along specialized or technical lines requiring special training, experience or knowledge or (c) execute special assignments under general supervision; and

(4) Must not spend more than 20 percent of his or her workweek (less than 40 percent if employed by a retail or service establishment) on nonexempt work, that is, work not directly and closely related to his or her administrative duties; and

(5) Must be paid on a salary or fee basis at a rate of not less than $155 a week.

Special proviso for high salaried administrative employees: an administrative employee who is paid on a salary or fee basis at a rate of at least $250 a week is exempt if (a) his or her primary duty consists of responsible office or non manual work directly related to management policies or general business operations or (b) responsible work in the administration of a school system or educational establishment or institution or department or subdivision thereof that is directly related to the academic instruction or training; and such primary duty includes work requiring the exercise of discretion and independent judgment.

Interpretations of the term "administrative capacity" shall be made in accordance with Title 29 Code of Federal Regulations, Part 541, Defining the Terms "Executive," "Administrative," "Professional" and "Outside Salesman."

Executive Capacity - A person employed in a bona fide executive capacity shall mean an employee who meets all of these tests:

(1) Primary duty must be management of the enterprise, or of a recognized department or subdivision; and

(2) Regularly direct the work of at least two full-time employees; and

(3) Have authority to hire and fire, or recommend hiring and firing; or whose recommendation on these and other actions affecting employees is given weight; and

(4) Regularly exercise discretionary powers; and

(5) Devote no more than 20 percent of his or her workweek (less than40 percent if he or she is employed by a retail or service establishment) to nonexempt work, that is, not directly and closely related to his or her executive duties; and

(6) Paid on a salary basis at a rate of at least $155 a week.

Two exceptions to the percentage tests on nonexempt work: (1) the employee is in sole charge of an independent or physically separated branch establishment; (2) owns a 20 percent interest in the enterprise or a recognized department or subdivision. The percentage tests on nonexempt work do not apply to such an executive.

Special proviso for high salaried executives: an executive who is paid at least $250 a week on a salary basis is exempt if he or she regularly directs the work of at least two full-time employees and his or her primary duty is management of the enterprise or a recognized department or subdivision. The percentage tests on nonexempt work do not apply to such an executive.

Interpretations of the term "executive capacity" shall be made in accordance with Title 29 Code of Federal Regulations, Part 541, Defining the Terms "Executive," "Administrative," "Professional" and "Outside Salesman."

Professional Capacity - A person employed in a bona fide professional capacity shall mean an employee who meets all of these tests:

(1) Primary duty must he either (a) work requiring knowledge of an advanced type in a field of science or learning. Ususally obtained by a prolonged course of specialized instruction and study or (b) work that is original and creative in character in a recognized field of artistic endeavor and the result of which depends primarily on his or her invention, imagination, or talent or (c) work as a teacher certified or recognized as such in the school system or educational institution by which he or she is employed; and

(2) Consistently exercise descretion and judgment; and

(3) Do work that is mainly intellectual and varied, as distinguished from routine or mechanical duties; and

(4) Must not spend more than 20 percent of his or her workweek on activities not essentially a part of and necessarily incident to professional duties; and

(5) Paid on a salary or fee basis at a rate of not less than $170 a week. This requirement does not apply to (a) an employeee who is the holder of a valid license and is engaged in the practice of law or medicine; or (b) an employee who is the holder of the requisite academic degree for the general practice of medicine and is engaged in an internship or resident program; or (c) an employee employed and engaged as a teacher.

Special proviso for high salaried professional employees: a professional employee who is paid on a salary or fee basis at a rate of at least $250 a week is exempt if (a) his or her primary duty consists of work in the learned field or work as a teacher in the activity of imparting knowledge which requires consistent exercise of discretion and judgment or (b) primary duty is artistic work that requires invention, imagination or talent. The 20 percent test on nonexempt work does not apply to such a professional employee.

Interpretations of the term "professional capacity" shall be made in accordance with Title 29 Code of Federal Regulations, Part 541, Defining the Terms "Executive," "Administrative," "Professional" and "Outside Salesman."

999.2 The terms defined in the Act shall have the meaning set forth in the Act. In addition, when used in this Chapter, the following words shall have the meaning ascribed:

Act - means the District of Columbia Minimum Wage Act Revision Act of 1992.

Babysitter - means a person employed to care for children under the age of 18 in or about the private home in which the children reside. Persons who spend more than 20 percent of their time on household work not directly related to caring for children shall not be deemed a babysitter. Interpretations of the term "babysitter" shall be made in accordance with Title 29 Code of Federal Regulations, Part 552, "Application of the Fair Labor Standards Act to Domestic Service."

Casual Babysitter - means an individual who is employed as a babysitter on an irregular or intermittent basis and whose vocation is not babysitting. Interpretations of who is a "casual babysitter" shall be made in accordance with Title 29 Code of Federal Regulations, Part 552.5 "Casual Basis" and Part 552.104 "Babysitting Services Performed on a Casual Basis."

Companion for the Aged or Infirm - includes a person employed to provide fellowship, care and protection for a person who, because of advanced age or physical or mental infirmity, cannot care for his or her own needs. Included in the services performed by a companion is household work directly related to the care of the aged or infirm person such as meal preparation, bed making, washing of clothes and other similar services. Persons who spend more than 20 percent of their time on household work not directly related to caring for the aged or infirm shall not be deemed a companion for the aged or infirm.

Institution of Higher Education -.is an institution above the secondary level, such as a college or university, a junior college or a professional school of engineering, law, library science, social work, etc. It is one that is recognized by a national accrediting agency or association as determined by the Secretary of Education. Any further interpretations of the term shall be made in accordance with Title 29 Code of Federal Regulations, Chapter V, Section 519.12(b).

Minimum wage - means the District of Columbia minimum wage.

Private household worker - means an occupation performed by an individual in or about the private home of the person by whom he/she is employed (including temporary dwelling places and separate and distinct dwellings maintained by individuals or families in apartment houses or hotels) including, but not limited to cooks, maids, butlers, personal attendants, housekeepers, homemakers, child mentors, child monitors, day workers, nurses, home attendants, launderers, caretakers, gardeners, yard workers, chauffeurs of automobiles for family use, personal secretaries and babysitters other than casual babysitters.

Parking Lot Attendant/Parking Garage Attendant - means any person who is employed to park or supervise the parking of automobiles at a parking lot or parking garage. A person employed as a cashier, guard or maintenance person shall not be deemed as an "attendant at a parking lot or parking garage."

Outside Salesperson - means an employee who meets the following tests:

(1) Employed for the purpose of and customarily and regularly works away from the employer's place of business in (a) selling tangible or intangible items such as goods, insurance, stocks, bonds, or real estate or (b) obtaining orders or contracts for services or use of facilities, such as radio time, advertising, typewriter repairs; and

(2) Hours of work not related to his or her outside sales do not exceed 20 percent of the hours worked in the workweek by nonexempt employees of the employer.

Interpretations of the term "outside salesperson" shall be made in accordance with Title 29 Code of Federal Regulations, Part 541, Defining the Terms "Executive," "Administrative," "Professional" and "Outside Salesman."

Split Shift - means a schedule of daily hours in which the hours worked are not consecutive, except that a schedule in which the total time out for meals does not exceed one hour shall not be deemed a "split shift."

Tipped Employees - are those who engage in occupations in which tips are customarily and regularly received from patrons. Tipped employees include, but are not limited to, waiters, waitresses, counter personnel who serve customers, bus persons, server helpers, service bartenders, car wash attendants, parking lot attendants, parking garage attendants, bootblacks, hotel doorkeepers, bellhops, hat checkers, cosmetologists, manicurists, pedicurists, shampooers and aestheticians.

History

SOURCE: Notice of Final Rulemaking published at 41 DCR 197-201(January 14, 1994).

7-10 LIVING WAGE

7 DCMR § 1000 PURPOSE AND SCOPE

1000.1 The purpose of this chapter is to establish principles and guidance for the implementation of the Living Wage Act of 2006, effective June 8, 2006 (D.C. Law 16-118; D.C. Official Code §§ 2-220.1, et seq.) (Act).

1000.2 Unless otherwise required by law, all matters concerning the implementation and enforcement of the Act shall be decided in accordance with this chapter.

1000.3 This chapter shall apply to all contracts or agreements for government assistance entered into after June 8, 2006, if the amount of the contract or assistance meets the requirement for coverage under the Act. A renewal or extension of a contact or an assistance agreement entered into after June 8, 2006, shall be subject to the Act, if the amount of the contract or government assistance meets the requirement for coverage under the Act.

History

Source: Notice of Final Rulemaking published at 58 DCR 2831 (April 1, 2011).

7 DCMR § 1001 LIVING WAGE PAYMENT REQUIREMENT

1001.1 All recipients of District of Columbia government contracts in the amount of one hundred thousand dollars ($100,000) or more, and all recipients of government assistance in the amount of one hundred thousand dollars ($100,000) or more, shall pay to their affiliated employees, at minimum, the living wage required by the Act. The living wage shall be paid for the duration of the contract or government assistance.

1001.2 The living wage shall be paid to employees of the District of Columbia government commencing March 1, 2006, unless the employee’s wage is established by a collective bargaining agreement, federal law, or grant, in which case the wage established by the collective bargaining agreement, federal law, or grant shall continue for such time as the collective bargaining agreement, law, or grant remains in effect.

1001.3 Subcontractors who receive fifteen thousand dollars ($15,000) or more from contractors whose contracts are subject to the Act shall pay their affiliated employees, at minimum, the living wage required by the Act.

1001.4 Subcontractors who receive fifty thousand dollars ($50,000) or more from recipients of District of Columbia government assistance funds shall pay their affiliated employees, at minimum, the living wage required by the Act.

1001.5 Subcontractors of exempt contractors or exempt recipients shall be exempt from the requirements of the Act.

History

Source: Notice of Final Rulemaking published at 58 DCR 2831 (April 1, 2011).

7 DCMR § 1002 AMOUNT OF LIVING WAGE

1002.1 The amount of the living wage shall be eleven dollars and seventy-five cents ($11.75) per hour, regardless of whether health benefits are provided.

The amount of the living wage shall be adjusted pursuant to section 103(c) of the Act (D.C. Official Code § 2-220.03(c)).

History

Source: Notice of Final Rulemaking published at 58 DCR 2831, 2832 (April 1, 2011).

7 DCMR § 1003 NOTICES TO CONTRACTORS AND SUBCONTRACTORS

1003.1 All contracts and agreements for government assistance subject to the Act shall include provisions and language incorporating the requirements of the Act as to coverage (section 103, D.C. Official Code § 2-220.03), notices (section 106, D.C. Official Code § 2-220.06), record keeping (section 107, D.C. Official Code § 2-220.07), and enforcement (section 108, D.C. Official Code § 2-220.08).

1003.2 Each recipient of a District of Columbia government contract or of government assistance subject to the Act shall provide written notification to each of its subcontractors subject to the Act of the requirements of the Act, as to coverage (section 103, D.C. Official Code § 2-220.03) notices (section 106, D.C. Official Code § 2-220.06), record keeping (section 107, D.C. Official Code § 2-220.07), and enforcement (section 108, D.C. Official Code § 2-220.08). The recipient shall provide such written notification no later than the date on which it signs or executes the subcontract with the subcontractor. The recipient shall keep a record of having given the notice required by this subsection and shall maintain such records in the manner required by section 107 of the Act (D.C. Official Code § 2-220.07).

History

Source: Notice of Final Rulemaking published at 58 DCR 2831, 2832 (April 1, 2011).

7 DCMR § 1004 NOTICES TO EMPLOYEES

1004.1 The Director shall provide a fact sheet and notice to each recipient of a District of Columbia government contract and government assistance subject to the Act.

1004.2 The fact sheet and notice shall contain the following:

(a) Notice of the living wage rate;

(b) A summary of requirements under the payment (section 103 of the Act, D.C. Official Code § 2-220.03) and record keeping (section 107 of the Act, D.C. Official Code § 2-220.07) provisions of the Act;

(d) The name, address, and telephone number of the individual or entity to which complaints of non-compliance with the Act may be made.

1004.3 All recipients of District of Columbia government contracts and government assistance subject to the Act, and all subcontractors subject to the Act, shall provide each affiliated employee with the fact sheet provided by the Director no later than the onset of performance of the contract or assistance.

1004.4 All recipients of District of Columbia government contracts and government assistance subject to the Act, and all subcontractors subject to the Act, shall post in a conspicuous place in their places of business, the notice provided by the Director. If the contractor or recipient of government assistance subject to the Act, or subcontractor subject to the Act, establishes an onsite office or separate administrative location from which work subject to the Act is directed, a copy of the notice required by this subsection shall also be conspicuously posted in the onsite office or remote administrative location.

History

Source: Notice of Final Rulemaking published at 58 DCR 2831, 2833 (April 1, 2011).

7 DCMR § 1005 CREATION AND RETENTION OF RECORDS

1005.1 Each recipient of a District of Columbia government contract or government assistance subject to the Act, and their subcontractors subject to the Act, shall retain payroll records created and maintained in the ordinary course of business pursuant to District of Columbia law for a period of three (3) years from the payroll date for affiliated employees eligible for the living wage, as set forth in section 107 of the Act (D.C. Official Code § 2-220.07). Each recipient shall be responsible for keeping and maintaining records that differentiate between hours paid from the contract or government assistance and other funding sources.

1005.2 The director or the chief official of an agency or other entity of the District of Columbia government which issues contracts or government assistance may request from a contractor, recipient, or subcontractor subject to the Act an affirmative statement acknowledging the application of the Act to the contractor, recipient, or subcontractor.

1005.3 The director or chief official of an agency or entity of the District of Columbia government which issues contracts or government assistance may request from any contractor, recipient, or subcontractor subject to the Act a list of all affiliated employees of the contractor, recipient, or subcontractor.

1005.4 A contractor, recipient, or subcontractor receiving a request under §§ 1005.2 or 1005.3 shall provide the affirmative statement or list of affiliated employees, in writing, utilizing a form specified by the Director. The affirmative statement or list of affiliated employees shall be signed by the chief executive officer of the contractor, recipient, or subcontractor, and the signature shall be notarized.

History

Source: Notice of Final Rulemaking published at 58 DCR 2831, 2834 (April 1, 2011).

7 DCMR § 1006 ENFORCEMENT

1006.1 A complaint concerning the payment of wages required by the Act shall be made in accordance with, and shall be subject to, the provisions of an Act To provide for the payment and collection of wages in the District of Columbia, approved August 3, 1956 (70 Stat. 976; D.C. Official Code §§ 32-1301, et seq.).

With respect to contracts, a complaint concerning a form of non-compliance with the Act, other than one about the payment of wages, shall be made to the Contracting Officer and decided as provided in section 803 of the District of Columbia Procurement Practices Act of 1985, effective February 21, 1986 (D.C. Law 6-85; D.C. Official Code § 2-308.03).

With respect to grants of government assistance, a complaint concerning a form of non-compliance with the Act, other than one about the payment of wages, shall be made to the grant administrator in accordance with the terms of the grant.

History

Source: Notice of Final Rulemaking published at 58 DCR 2831, 2834 (April 1, 2011).

7 DCMR § 1007 EXEMPTIONS

1007.1 The following types of contracts, government assistance, and employment are exempt from the requirements of the Act:

(a) Contracts or other agreements that are subject to higher wage level determinations required by federal law;

(b) Existing and future collective bargaining agreements; provided, that the future collective bargaining agreement results in the employee being paid no less than the established living wage;

(d) Contracts for services needed immediately to prevent or respond to a disaster or eminent threat to public health or safety declared by the Mayor;

(e) Contracts or other agreements awarded to recipients that provide trainees with additional services, including, but not limited to, case management and job readiness services; provided, that the trainees do not replace employees subject to the Act;

(f) An employee under twenty-two (22) years of age employed during a school vacation period, or enrolled as a full-time student, as defined by the respective institution, who is in high school or at an accredited institution of higher education and who works less than twenty-five (25) hours per week; provided, that he or she does not replace an employee subject to the Act;

(g) Tenants or retail establishments that occupy property constructed or improved by receipt of government assistance from the District of Columbia government; provided, that the tenant or retail establishment did not receive direct government assistance from the District government;

(h) Employees of nonprofit organizations that employ not more than fifty (50) full-time equivalent individuals and that qualify for taxation exemption pursuant to section 501(c)(3) of the Internal Revenue Code of 1954, approved August 16, 1954 (68A Stat. 163; 26 U.S.C. § 501(c)(3));

(i) Medicaid provider agreements for direct care services to Medicaid recipients; provided, that the direct care service is not provided through a home care agency, a community residence facility, or a group home for mentally retarded persons, as those terms are defined in section 2 of the Health-Care and Community Residence Facility, Hospice, and Home Care Licensure Act of 1983, effective February 24, 1984 (D.C. Law 5-48; D.C. Official Code § 44-501); and

(j) Contracts or other agreements between managed care organizations and the Health Care Safety Net Administration or the Medicaid Assistance Administration to provide health services.

History

Source: Notice of Final Rulemaking published at 58 DCR 2831, 2835 (April 1, 2011).

7 DCMR § 1008 WAIVERS

1008.1 The Director may exempt a recipient from the requirements of the Act if the waiver is approved by the Council of the District of Columbia.

1008.2 A recipient requesting a waiver shall submit a signed written application to the Director and shall demonstrate that compliance with the Act will constitute a significant financial hardship to the recipient that will result in either:

(a) A layoff of a significant number of employees;

(b) A substantial downsizing of the recipient’s business entity; or

1008.3 All applications for waiver shall include the recipient’s name, telephone number, and the identity and authority of the individual requesting the waiver. The application shall also identify the name, address, and telephone number of any individual or entity that prepared any of the financial information submitted in support of the waiver request. The application shall also identify the name, address, and telephone number of any subcontractor of the recipient that is subject to the Act and is involved with the contract or government assistance for which the waiver is sought. The application shall also contain the number of affiliated employees involved with the contract or government assistance.

1008.4 The Director may require any recipient applying for a waiver to submit certified financial or other records that the Director believes may be necessary to decide the waiver request, including financial or other records not otherwise required by § 1005.

1008.5 The Director shall decide all waiver requests within thirty (30) business days after the submission of the application for waiver or as soon as practicable thereafter. The thirty (30) business day period shall commence on the day of the submission of the application for waiver or the date on which any final additional requested document is submitted to the Director, whichever occurs later.

1008.6 Submission of a request for waiver shall not relieve the recipient from complying with the Act during the time the application for waiver is pending.

1008.7 The Director shall issue a written recommendation or decision on all applications which are to be granted. If the Director does not issue a recommendation or decision within the thirty (30) business day period established by § 1008.5, the application shall be considered denied.

1008.8 An application for waiver which is granted by the Director shall not be effective unless the waiver is approved by the Council of the District of Columbia, by act, as set forth in section 109 of the Act (D.C. Official Code § 2-220.09).

History

Source: Notice of Final Rulemaking published at 58 DCR 2831, 2836 (April 1, 2011).

7 DCMR § 1099 DEFINITIONS

1099.1 When used in this chapter, the following terms shall have the meanings ascribed:

Affiliated employee – an employee of a recipient who receives compensation either directly from the government contract or assistance or from the government funds paid to a subcontractor. The term “affiliated employee” applies to both full-time or part-time employees. The term “affiliated employee” does not apply to employees who perform only intermittent or incidental services for the contract. The term “affiliated employee” does not apply to employees of recipients who do not receive compensation directly from government funds.

Contract – a written agreement between a recipient and the District of Columbia government or any entity of the District of Columbia government for the provision of services. Where contractual agreements between the District of Columbia government and recipients are for the provision of services to multiple individuals on an individual basis, and the individual selects the service provider, the payments for each individual shall be treated as a separate contract for purposes of the Act.

Director – the Director of the District of Columbia Department of Employment Services.

Disaster – a natural disaster such as a tornado, blizzard, flood, fire, earthquake, or epidemic which causes substantial physical damage to the District of Columbia, or an economic disaster which results in a substantial loss of District of Columbia government revenues for at least three (3) consecutive months due to an economic depression, recession, or other downturn in the national or local economy.

Government assistance – a grant, loan, or tax increment financing that is received from an agency, commission, instrumentality or other entity of the District of Columbia government and results in a financial benefit to a recipient.

Living wage – the minimum hourly wage rate required under the Act, as set forth in § 1002.

Mayor – the Mayor of the District of Columbia.

Recipient – an individual, sole proprietorship, partnership, joint venture, limited liability company, corporation, or any other form of business or business entity that enters into a contract with, or receives government assistance from the District of Columbia government.

History

Source: Notice of Final Rulemaking published at 58 DCR 2831, 2837 (April 1, 2011).

7-11 APPRENTICESHIP

7 DCMR § 1100 PURPOSE AND SCOPE

1100.1 The purpose of these rules is to set forth labor standards, policies and procedures relative to the registration and deregistration of apprenticeship programs and to the registration of apprenticeship agreements and the resolution of disputes thereunder by the Apprenticeship Council and the Director.

1100.2 The authority for the adoption of these standards, policies, and procedures affecting the apprenticeship programs and agreements is the District of Columbia Apprenticeship Act of 1946, as amended, D.C. Code, Title 36, Chapter 4 (1988).

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 5999 (September 14, 1990).

7 DCMR § 1101 MANDATORY REGISTRATION OF APPRENTICESHIP PROGRAMS

1101.1 No prime contractor or subcontractor shall contract with the District government within any twelve (12) month period to perform construction or renovation work in the cumulative amount of five hundred thousand dollars ($500,000) or more, unless such prime contractor or sub-contractor registers or has registered an apprenticeship program with the Apprenticeship Council.

1101.2 No person or organization shall apply to register an individual apprenticeship agreement with the Director, unless such person or organization has registered an apprenticeship program with the Apprenticeship Council before applying to register the agreement.

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 5999, 6000 (September 14, 1990).

7 DCMR § 1102 PROCEDURES FOR REGISTERING APPRENTICESHIP PROGRAMS

1102.1 Any person or organization seeking to register an apprenticeship program shall submit four copies of all required documents to the Apprenticeship Council for approval.

1102.2 Each application for registration shall set forth in writing: a certified copy of the company's payroll identifying the existing workforce; an organized plan for meeting each of the program standards required by section 1103; a copy of the apprenticeship agreement required by section 1106; and the applicant's commitment to operate the apprenticeship program as registered by the Apprenticeship Council.

1102.3 If the person or organization applying for registration is an employer or employers' association, and the program standards, a collective bargaining agreement, or other instrument provides for participation by a union in the operation of the apprenticeship program, the application shall include written acknowledgement of union agreement or "no objection" to registration of the program.

1102.4 If no such union participation is provided for, the application shall include evidence that the applicant has by certified mail furnished to any union local that is recognized as the collective bargaining agent for employees in those positions for which apprentices are to be trained, a complete copy of the application for registration together with a notice that the Apprenticeship Council will accept union comments for thirty (30) calendar days after the date of the application.

1102.5 If employees in the positions for which apprentices are to be trained have no collective bargaining agent, the application shall so state.

1102.6 The Director shall conduct a worksite analysis before registering any apprenticeship program and the results of such analysis shall be reported to the Apprenticeship Council prior to any decision to approve a plan.

1102.7 The Apprenticeship Council shall register an apprenticeship program if the application for registration meets the requirements of this Chapter.

1102.8 Registration shall be evidenced by a certificate of registration issued by the Apprenticeship Council for a term of four (4) years in the name of the sponsoring person or organization.

1102.9 Each registration shall state that an apprenticeship program for any occupation is subject to deregistration by the Apprenticeship Council if, as certified by the Director, no active on-the-job training of apprentices has occurred within a period of two (2) years from the date of the last such active training.

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6000-6001 (September 14, 1990).

7 DCMR § 1103 STANDARDS FOR REGISTERING APPRENTICESHIP PROGRAMS

1103.1 Training shall be offered in one or more apprenticeable occupations, as defined by these rules.

1103.2 The term of apprenticeship shall be not less than two thousand (2,000) hours per year consistent with training requirements as established by industry practice.

1103.3 Each apprenticeship program shall set forth in writing: a statement that the program will be conducted in compliance with the District of Columbia State Plan for Equal Employment Opportunity in Apprenticeship Training, adopted pursuant to 29 CFR Part 30 (1988); an equal opportunity pledge; and, when applicable, an affirmative action plan and selection method.

1103.4 Each apprenticeship program shall describe the work processes in which apprentices will receive supervised work experience and training on-the-job, and the allocation of the approximate time to be spent in each major learning process.

1103.5 Each apprenticeship program shall provide organized, related, and supplemental instruction in technical subjects related to the trade, for which the sponsor shall bear the cost of tuition, books, and materials.

1103.6 Each apprenticeship program shall contain a progressive schedule of the minimum wage rates to be paid apprentices for each incremental period of apprenticeship, consistent with the skills acquired, with wages expressed as percentages of the established journeyperson's hourly rate.

1103.7 The entry apprentice wage rate shall be not less than the minimum wage prescribed by the District of Columbia Minimum Wage Law, appropriate Wage Order, or by the Fair Labor Standards Act, as applicable, unless a higher wage is required by other applicable Federal or State laws, respective regulations, or by a collective bargaining agreement.

1103.8 The minimum hourly apprentice wage rate paid during the last period of apprenticeship shall be not less than eighty-five (85) percent of the established journeyperson's wage rate.

1103.9 The apprenticeship program shall provide for periodic reviews and evaluations of the apprentice's progress in job performance and related instruction.

1103.10 Each apprenticeship program shall provide that the sponsor shall maintain all records, including appropriate progress records, for not less than five (5) years, and that the sponsor shall make such records available to the Director upon request.

1103.11 Each apprenticeship program shall identify numerically the ratio of apprentices to journeypersons for the entire workforce; such ratio shall be consistent within the given trade or occupation and shall be consistent with proper supervision, training, safety, and continuity of employment as determined by the Apprenticeship Council or applicable provisions in collective bargaining agreements, except when such ratios are expressly prohibited by a collective bargaining agreement.

1103.12 The minimum numerical ratio required shall be one (1) apprentice to every three (3) journeypersons employed.

1103.13 Each apprenticeship program shall provide a probationary period not to exceed ninety (90) days with full credit for such period counting towards completion of the full apprenticeship term.

1103.14 The sponsor shall provide adequate and safe equipment and facilities for on-the-job training, and adequate supervision to promote safe working conditions; and safety training for apprentices both on-the-job and in related instruction.

1103.15 Each apprenticeship program shall state minimum qualifications for persons entering an apprenticeship program.

1103.16 Each apprenticeship program shall provide for the placement of each apprentice under a registered apprenticeship agreement.

1103.17 Each apprenticeship program shall provide that advanced credit or standing of up to one-fourth (1/4) of the apprenticeship term shall be granted all applicants equally, with commensurate wages paid according to the advanced standing granted.

1103.18 Each apprenticeship program shall require advance approval by the Director of any award of advanced standing or credit greater than one-fourth (1/4) of the prescribed term.

1103.19 Each apprenticeship program shall require the use of qualified training personnel approved by the Apprenticeship Council.

1103.20 Each apprenticeship program shall provide recognition of successful completion of apprenticeship as evidenced by the appropriate certificate issued by the Apprenticeship Council.

1103.21 Each apprenticeship program shall identify the registration agency as the Apprenticeship Council.

1103.22 Each apprenticeship program shall require the sponsor to obtain the approval of the Apprenticeship Council for any modification or amendment to a registered program.

1103.23 Each apprenticeship program shall require not less than two (2) weeks written notice of any proposed adverse action including detailed specifications of the cause with written notice indicating the opportunity for corrective action during the two week period, unless such a requirement is in conflict with a collective bargaining agreement and a lesser requirement is approved by the Council.

1103.24 Upon the request of the sponsor of any multistate apprenticeship program in any industry other than building and construction, the Apprenticeship Council shall register such a program, if the sponsor demonstrates that the program is registered by any recognized State Apprenticeship Agency or Council or by the U.S. Department of Labor Bureau of Apprenticeship and Training.

1103.25 Each apprenticeship sponsor shall maintain a street address in the District of Columbia for the purpose of having records of apprentices and shall make such records available for review.

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6901-03(September 14, 1990).

7 DCMR § 1104 DEREGISTRATION OF APPRENTICESHIP PROGRAMS

1104.1 At the sponsor's request, the Apprenticeship Council may de- register an apprenticeship program by giving written notice to the sponsor, indicating that the program is voluntarily deregistered and giving the effective date of such action.

1104.2 Where an apprenticeship program is not being operated in accordance with the registered program or with the requirements of these rules, the Director shall send to the sponsor a preliminary notice of involuntary deregistration, by registered or certified mail, return receipt requested, stating the deficiency and the corrective action required, and stating that the program will be deregistered for cause unless corrective action is taken within thirty (30) days from the date of the notice.

1104.3 The Director may upon written request extend the period for corrective action for up to thirty (30) additional days.

1104.4 The Director shall assist the sponsor in correcting the deficiency.

1104.5 The Director shall send a final notice of involuntary deregistration to the sponsor by registered or certified mail, return receipt requested, where corrective actions have not been timely taken, stating that the deficiency and the remedial action required were called to the sponsor's attention, and stating that the program will be deregistered, unless the sponsor requests a hearing within fifteen (15) working days from the date of the notice.

1104.6 If the sponsor requests a hearing, the Chairperson shall convene the Apprenticeship Council, which shall hold a hearing and make a determination on the basis of the preponderance of evidence in the hearing record.

1104.7 At any such hearing, the Apprenticeship Council shall offer the sponsor the opportunity to appear with counsel, present documentary evidence and witnesses, and confront any other documentary evidence or witnesses.

1104.8 The Apprenticeship Council shall record any such hearing and make a copy or transcript of the record available at cost to the sponsor on request.

1104.9 Every order of voluntary or involuntary deregistration issued by the Apprenticeship Council shall provide that the sponsor shall, within fifteen (15) working days of the effective date of the order, notify all registered apprentices of the deregistration of the program, the effective date, and that such action automatically terminates the apprentice's individual registration.

1104.10 The Apprenticeship Council shall promptly notify all District and Federal authorities of the deregistration of any apprenticeship program and the effective date.

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6003-05(September 14, 1990).

7 DCMR § 1105 REINSTATEMENT OF APPRENTICESHIP PROGRAMS

1105.1 Each sponsor whose apprenticeship program has been deregistered pursuant to this Chapter may be reinstated by applying to the Apprenticeship Council and demonstrating that the apprenticeship program is operating in accordance with this Chapter.

1105.2 Before denying an application for reinstatement, the Apprenticeship Council shall afford a sponsor the opportunity for a hearing in accordance with the provisions of section 1104 of this Chapter.

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6005(September 14, 1990).

7 DCMR § 1106 REGISTRATION OF INDIVIDUAL APPRENTICESHIP AGREEMENTS REQUIRED

1106.1 No apprentice shall be employed under a registered apprenticeship program unless an individual apprenticeship agreement for that apprentice has been registered with the Director.

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6005(September 14, 1990).

7 DCMR § 1107 STANDARDS FOR REGISTERING INDIVIDUAL APPRENTICESHIP AGREEMENTS

1107.1 The Director shall register individual apprenticeship agreements which meet the requirements of this section.

1107.2 Each Apprenticeship Agreement shall contain the names, addresses, and signatures of the contracting parties, the apprentice, the program sponsor or the employer, and the signature of a parent or guardian if the apprentice is a minor.

1107.3 Each Apprenticeship Agreement shall state the date of birth of the apprentice.

1107.4 Each Apprenticeship Agreement shall provide that the sponsor shall notify the Director in writing within ten (10) days of any modification, cancellation, suspension, or termination of the agreement, with cause for same, and of completion of the apprenticeship.

1107.5 Each Apprenticeship Agreement shall state the craft or occupation in which the apprentice is to be trained, and the beginning date and term (duration) of the apprenticeship; a schedule of work processes in the trade or occupation in which the apprentice is to be trained and the approximate time to be spent at each process; the total number of hours to be spent by the apprentice in work on the job; and the total number of hours to be spent in related and supplemental instruction.

1107.6 Each Apprenticeship Agreement shall state the specific period of probation during which the apprenticeship agreement may be terminated by the Director on the request of either party to the agreement.

1107.7 Each Apprenticeship Agreement shall provide that after the probationary period, the agreement may be cancelled by the Director at the request of the apprentice or may be cancelled, or terminated only for good cause, with due notice of not less than ten (10) days to the apprentice and a reasonable opportunity for corrective action, and with written notice to the apprentice and to the Apprenticeship Council of the final action taken and of the right of the apprentice to appeal the decision to the Apprenticeship Council.

1107.8 Each Apprenticeship Agreement shall incorporate by reference the standards for the participating apprenticeship program approved by the Apprenticeship Council as they exist on the date of the agreement and as they may be amended during the period of the agreement.

1107.9 Each Apprenticeship Agreement shall provide that the apprentice shall be accorded equal opportunity in all phases of apprenticeship employment and training without discrimination because of race, color, religion, national origin, or sex, and notice of a right to appeal under provisions of the District of Columbia State Plan for Equal Opportunity in Apprenticeship Training, adopted pursuant to 29 CFR Part 30 (1988).

1107.10 Each Apprenticeship Agreement shall state that if a sponsor is unable to fulfill his obligation, the agreement may, with consent of the apprentice and the joint committee if one exists, or of the Director if there is no joint committee, be transferred to another sponsor under a registered program and with full credit to the apprentice for satisfactory time and training earned.

1107.11 Each Apprenticeship Agreement shall provide that all controversies or differences concerning the apprenticeship agreement which cannot be adjusted by conference between the apprentice and the sponsor or under the terms of the apprenticeship standards shall be submitted to the Director, and shall provide the Director's address.

1107.12 Each Apprenticeship Agreement shall contain a statement of the graduated scale of wages to be paid the apprentice and whether or not the required school time shall be compensated.

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6005-6006(September 14, 1990).

7 DCMR § 1108 COMPLAINTS UNDER INDIVIDUAL APPRENTICESHIP AGREEMENTS

1108.1 Any controversy or difference arising under an Apprenticeship Agreement which cannot be resolved by the sponsor, or which is not covered by a collective bargaining agreement, may be submitted by an apprentice or the apprentice's authorized representative to the Director for review.

1108.2 All matters covered by a collective bargaining agreement shall be submitted and processed in accordance with the procedures therein provided.

1108.3 A complaint shall be in writing, shall be signed by the complainant, shall be submitted by the apprentice or the apprentice's authorized representative within sixty (60) days of receipt of sponsor's decision, shall set forth the specific problem, including all relevant facts, and shall include copies of all pertinent documents and correspondence.

1108.4 The Director shall make every effort to informally resolve the complaint.

1108.5 The Director shall report all unresolved complaints with recommendation for resolution to the Council within sixty (60) days.

1108.6 If necessary to resolve disputed questions of material fact, the Apprenticeship Council shall hold a hearing in accordance with the provisions of section 1104 of this Chapter. Otherwise, the Council shall make a decision based on the Director's recommendation within ten (10) days.

1108.7 The Council shall notify all parties of the decision which shall be a final administrative action.

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6007(September 14, 1990).

7 DCMR § 1109 DEFINITIONS

1109.1 The definitions contained within the act (D.C. Code § 36-401 et seq. (1988)) shall apply to this Chapter. In addition, the following terms shall have the meaning ascribed:

Apprenticeable Occupation - a skilled occupation which possesses all of the following characteristics:

(a) The occupation is customarily learned in a practical way through both training and work experience obtained on-the-job

(b) The occupation is clearly identified and commonly recognized throughout an industry.

(c) The occupation involves manual, mechanical, or technical skills and knowledge which require a minimum of two thousand (2,000) hours per year of on-the-job work experience not including the time spent in related instruction.

(d) The occupation requires instruction to supplement on-the-job training.

Apprentice - a person at least 16 years of age who has entered into an apprenticeship agreement with an employer, an association of employers, or an organization of employees, which provides for reasonably continuous employment for the person and for participation in an approved apprenticeship program.

Apprenticeship Agreement - a written agreement between an apprentice and either the apprentice's employer, or an apprenticeship committee acting as agent for employers, which agreement contains the terms and conditions of the employment and training of the apprentice and must be registered with the Director.

Apprenticeship Council - the District of Columbia State Apprenticeship Council.

Apprenticeship Program - a program registered with the Apprenticeship Council, evidenced by a Certificate of Registration or other appropriate documents as meeting the apprenticeship standards of the Apprenticeship Council.

Cancellation - the termination of an apprenticeship agreement at the request of either the sponsor or the apprentice.

Certification - the written approval by the District of Columbia Apprenticeship Council of a set of apprenticeship standards or of an individual for employment as an apprentice in an apprenticeship program.

D.C. Apprenticeship Act - D.C. Apprenticeship Act of May 21, 1946 (D.C. Code § 36-401 et seq. (1988)).

Deregistration of Programs - the termination of the registration or approval status of an apprenticeship program upon written request of the sponsor or upon cause by the Apprenticeship Council instituting formal deregistration proceedings in accordance with the provisions of this Chapter.

Director - the Director of the District of Columbia Department of Employment Services or any person designated by the Director to supervise the administration of the provisions of the act.

District of Columbia State Plan for Equal Opportunity in Apprenticeship Training - a plan outlining policies and procedures for promoting equality of opportunity in the recruiting and selection of apprentices and in all conditions of employment and training during the term of apprenticeship, adopted in accordance with 29 CFR Part 30 (1988).

Registration Agency - the District of Columbia Apprenticeship Council.

Related Instruction - an organized and systematic form of instruction designed to provide the apprentice with knowledge of the theoretical and technical subjects related to the apprentice's trade. The sponsor shall be responsible for the administration and supervision of related and supplemental instruction for apprentices and coordination of the instruction with job experience; the selection and training of teachers and coordinators for such instruction shall be approved by the Apprenticeship Council.

Sponsor - any person or organization operating an apprenticeship program, irrespective of whether such person or organization is an employer.

Workforce - all employees paid by the employer.

History

SOURCE: Notice of Final Rulemaking published at 37 DCR 6007-09(September 14, 1990).

7-14 EMPLOYEE DEFERRED COMPENSATION PLAN

7 DCMR § 1400 EMPLOYEE AGREEMENT TO DEFER COMPENSATION

1400.1 Any employee of the District of Columbia government (except an employee of an agency not under the personnel authority of the Mayor or an independent agency as defined in the Comprehensive Merit Personnel Act of 1978, D.C. Law 2-139, §1-601 et seq., D.C. Code, 1981 ed.) shall be eligible to participate in the employee deferred compensation program (the "Plan").

1400.2 The Deputy Mayor for Financial Management may enter into an agreement with any agency not under the personnel authority of the Mayor or any independent agency for the purpose of extending to employees of such agency eligibility to participate in the Plan.

1400.3 Any eligible employee may elect to become a participant in the Plan by entering into a Joinder Agreement with the District. The Joinder Agreement shall incorporate the Plan Document by reference and set forth the following:

(a) The amount of compensation to be deferred;

(b) The investment election requested by the participant;

(d) The beneficiary designated by the participant.

1400.4 The "Plan Document" incorporated into the Joinder Agreement between the Deputy Mayor for Financial Management and a participant shall contain the official information about the Plan and shall include the following terms, conditions, and provisions:

(a) The purpose of the Plan;

(b) The definitions;

(d) The participation in the Plan;

(e) The limitations on deferrals;

(f) The investments and account values;

(g) The benefits;

(h) The Nonassignability;

(i) The amendment or termination of Plan;

(j) The applicable law; and

(k) The miscellaneous provisions.

1400.5 The Deputy Mayor for Financial Management shall select the investment elections available to participants, which shall include, but not be limited to, group fixed or variable annuity contracts. The Plan administrator(s) shall invest funds held by the Plan administrator(s) pursuant to Joinder Agreements in accordance with the requests made by each participant at the time of enrollment or change in enrollment.

1400.6 At the time of entering into or amending a Joinder Agreement, a participant shall agree to defer a minimum of twenty dollars ($20.00) per biweekly payroll period or forty-three dollars ($43.00) per monthly payroll period or such greater amount as may be required under the investment election selected in the Joinder Agreement.

1400.7 The maximum that may be deferred under the Plan for the taxable year of the participant shall not exceed the amounts permitted by §457(b) of the Internal Revenue Code of 1954.

7 DCMR § 1401 DEPOSIT AND INVESTMENT OF DEFERRED COMPENSATION

1401.1 All amounts of compensation deferred under the Plan, all property and rights purchased with such amounts, and all income attributable to such amounts, property, or rights, shall remain (until made available to the participant or other beneficiary) solely the property and rights of the District of Columbia (without being restricted to the provision of benefits under the Plan) subject only to the claims of the District of Columbia's general creditors.

1401.2- The Deputy Mayor for Financial Management shall maintain a custodial account(s) for deposit of participant deferrals prior to the transmittal of such deferrals to the investment carriers and shall provide timely notice of such deposits to the Plan administrator(s).

1401.3 The plan administrator(s) shall instruct the bank maintaining the account(s) to transmit participants' deferrals and all necessary information to the appropriate investment carrier within a reasonable time after receipt of appropriate deferral and investment data from the Deputy Mayor for Financial Management.

1401.4 The plan administrator(s) shall forward necessary investment instructions to the investment carriers in order that all deferrals shall be invested in a timely and proper manner.

1401.5 Neither the Deputy Mayor for Financial Management nor any plan administrator shall deposit any funds pursuant to the Deferred Compensation Act of 1984 in any bank which has not made the certifications regarding loans to and investments in the Republic of South Africa and Namibia required by §2 of D.C. Law 5-50, §47-342, D.C. Code, 1981 ed.

1401.6 No plan administrator shall invest any finds which are in its possession pursuant to the Deferred Compensation Act of 1984 in the stocks, securities and other obligations of any company which is listed as doing business in or with the Republic of South Africa or Namibia in the Mayor's Order issued pursuant to §5 of D.C. Law 5-50, §47-139, D.C. Code, 1981 ed.

7-15 DISTRICT OF COLUMBIA RETIREMENT BOARD

7 DCMR § 1500 ESTABLISHMENT AND ORGANIZATION OF THE BOARD

1500.1 The District of Columbia Retirement Board (the Board) was established as an independent agency of the government of the District of Columbia pursuant to § 1-121(a) of the District of Columbia Retirement Reform Act of 1979, as amended (93 Stat. 866, Public Law 96-122; D.C. Official Code § 1-711(a)).

1500.2 The Board shall have exclusive authority to manage and control the District of Columbia Police Officers and Fire Fighters’ Retirement Fund and the District of Columbia Teachers’ Retirement Fund (collectively, the Funds) established by the District of Columbia Retirement Reform Act (D.C. Official Code § 1-711(a)), and to administer the retirement benefits under the Police Officers, Fire Fighters, and Teachers Retirement Benefit Replacement Plan Act of 1998, as amended (D.C. Law 12-152; D.C. Official Code §§ 1-901.01 et seq.).

History

SOURCE: Final Rulemaking published at 32 DCR 5111 (September 6, 1985); as amended by Final Rulemaking published at 49 DCR 10792 (November 29, 2002); as amended by Final Rulemaking published at 63 DCR 6146 (April 22, 2016). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 1500

7 DCMR § 1501 BOARD MEMBERS

1501.1 The Board shall consist of twelve (12) members, whose terms of office, qualifications, and compensation are mandated by statute (D.C. Official Code § 1-711(b), (c)). The members are fiduciaries to the Funds.

1501.2 The Board shall conduct elections for members who are elected by the active and retired officers of the District of Columbia Metropolitan Police Department and the District of Columbia Fire and Emergency Medical Services Department and by the active and retired teachers of the District of Columbia Public Schools. (D.C. Official Code § 1-711(b)(2)).

1501.3 In case of notification of a vacancy on the Board of an elected member, action shall be initiated to fill the vacancy no more than thirty (30) business days after the Board’s receipt of the written vacancy notification.

1501.4 Individual Board members sued in their capacity as Board members shall be represented by independent counsel, if appropriate, at the Board's expense.

1501.5 The Chief Financial Officer of the District of Columbia, or his or her designee, shall be a non-voting ex officio member (D.C. Official Code § 1-711(b)(11)).

1501.6 The Board shall elect one (1) member to be Chairperson who shall serve for a term of one (1) year unless removed by the Board (D.C. Official Code § 1-711(b)(10)). The Board may elect other officer positions at its discretion.

History

SOURCE: Final Rulemaking published at 32 DCR 5111 (September 6, 1985); as amended by Final Rulemaking published at 49 DCR 10792 (November 29, 2002); as amended by Final Rulemaking published at 63 DCR 6146 (April 22, 2016). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 1501

7 DCMR § 1502 STAFF

1502.1 Assignments to, removal from, and the remuneration of the staff of the Board shall be determined by the Board’s appointed Executive Director, consistent with applicable provisions of the Retirement Reform Act and the Comprehensive Merit Personnel Act. (D.C. Official Code §§ 1-711(g)(2), (k); §§ 1-601.01 et seq.).

History

SOURCE: Final Rulemaking published at 32 DCR 5111 (September 6, 1985); as amended by Final Rulemaking published at 49 DCR 10792 (November 29, 2002); as amended by Final Rulemaking published at 63 DCR 6146 (April 22, 2016). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 1502

7 DCMR § 1503 COMMITTEES

1503.1 The Board shall establish standing or special committees at its discretion.

History

SOURCE: Final Rulemaking published at 32 DCR 5111 (September 6, 1985); as amended by Final Rulemaking published at 49 DCR 10792 (November 29, 2002); as amended by Final Rulemaking published at 63 DCR 6146 (April 22, 2016). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 1503

7 DCMR § 1504 REGULAR MEETINGS

1504.1 The Board shall conduct statutorily mandated quarterly meetings each calendar year to consider, conduct and transact official Board business (regular meeting). The transaction of official Board business requires a majority of current voting members. The Board holds regularly scheduled meetings the third Thursday of each month, except August, beginning at 1 p.m. unless otherwise scheduled by the Board.

1504.2 The Board may schedule special or emergency meetings at its discretion.

1504.3 All meetings of the Board shall be held in the office of the Board unless otherwise designated by the Board.

History

SOURCE: Final Rulemaking published at 32 DCR 5111 (September 6, 1985); as amended by Final Rulemaking published at 49 DCR 10792 (November 29, 2002); as amended by Final Rulemaking published at 63 DCR 6146 (April 22, 2016). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 1504

7 DCMR § 1505 NOTICE OF MEETINGS

1505.1 Public notice shall be given in advance of a Board meeting or closed session in accordance with the District of Columbia Open Meetings Act (D.C. Law 18-350; D.C. Official Code § 2-576) (OMA).

History

SOURCE: Final Rulemaking published at 32 DCR 5111 (September 6, 1985); as amended by Final Rulemaking published at 49 DCR 10792 (November 29, 2002); as amended by Final Rulemaking published at 63 DCR 6146 (April 22, 2016). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 1505

7 DCMR § 1506 OPEN MEETINGS

1506.1 All meetings of the Board, whether regular, special, or emergency, at which official action is taken shall be open to the public as required by the Retirement Reform and Replacement Plan Acts (D.C. Official Code §§ 1-736(c), 1-909.05(e)) and OMA. No Board rule, regulation, resolution, or other official Board action shall be effective unless taken in an Open Meeting.

1506.2 Members of the public wishing to attend an Open Meeting should contact the Board’s office at least one (1) business day prior to the scheduled meeting to confirm the meeting is still scheduled.

History

SOURCE: Final Rulemaking published at 32 DCR 5111 (September 6, 1985); as amended by Final Rulemaking published at 49 DCR 10792 (November 29, 2002); as amended by Final Rulemaking published at 63 DCR 6146 (April 22, 2016). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 1506

7 DCMR § 1507 EXECUTIVE SESSION

1507.1 Any Board meeting, or portion of a meeting, may be closed to the public as permitted by the Retirement Reform and Replacement Plan Acts and the OMA upon a majority vote of the Board.

1507.2 The Board may close a meeting, or any portion of a meeting, for the following reasons:

A law or court order requires that a particular matter or proceeding not be public (D.C. Official Code § 2-575(b)(1)):

Deliberations, tentative or final decisions on investments or other financial matter that would jeopardize the Board’s ability to implement an investment decision or to achieve investment objectives (D.C. Official Code §§ 1-909.05(e) and (f));

Personnel matters (D.C. Official Code §§ 1-736(c) and 1-909.05(e); see also D.C. Official Code §§ 2-575(b)(9) and (10) below); and

Individual Plan participant benefit information (D.C. Official Code §§ 1-736(b) and 1-909.05(d));

To discuss, establish, or instruct the Board’s staff or negotiating agents concerning the position to be taken in negotiating the price and other material terms of a contract, including an employment contract, if an open meeting would adversely affect the Board’s bargaining position or negotiating strategy (D.C. Official Code § 2-575(b)(2));

To consult with an attorney to obtain legal advice and preserve the attorney-client privilege, or to approve settlement agreements (mere participation of the Board’s general counsel at a Board meeting does not warrant closure) (D.C. Official Code § 2-575(b)(4));

To discuss disciplinary matters (D.C. Official Code § 2-575(b)(9));

To discuss the appointment, employment, assignment, promotion, performance evaluation, compensation, discipline, demotion, removal, or resignation of Board members or staff (D.C. Official Code § 2-575(b)(10));

To discuss trade secrets and commercial or financial information obtained from outside the government to the extent disclosure would result in substantial harm to the outside party’s competitive position (D.C. Official Code § 2-575(b)(11));

To train and develop members of the Board and staff (D.C. Official Code § 2-575(b)(12));

To discuss investigations of alleged criminal or civil misconduct or violations of law or regulations if disclosure would harm the investigation (D.C. Official Code § 2-575(b)(14)).

1507.3 All materials and records of a closed meeting or executive session shall not be subject to disclosure under the OMA.

History

SOURCE: Final Rulemaking published at 32 DCR 5111 (September 6, 1985); as amended by Final Rulemaking published at 49 DCR 10792 (November 29, 2002); as amended by Final Rulemaking published at 63 DCR 6146 (April 22, 2016). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 1507

7 DCMR § 1508 RECORD OF MEETINGS

1508.1 All Board and committee meetings shall be recorded by electronic means if possible. The Board shall maintain written minutes of each meeting.

1508.2 Unapproved draft minutes of the regular Board meetings shall be made available to the public via the Board’s website at dcrb.dc.gov no later than three (3) business days after the meeting. Approved final minutes of the Board meetings and related materials shall be made available within seven (7) business days after approval.

1508.3 Records of closed meetings or executive sessions shall not be disclosed to the public.

History

SOURCE: Final Rulemaking published at 32 DCR 5111 (September 6, 1985); as amended by Final Rulemaking published at 39 DCR 7153 (September 18, 1992), incorporating by reference the text of Proposed Rulemaking published at 39 DCR 5140 (July 10, 1992); as amended by Final Rulemaking published at 49 DCR 10792 (November 29, 2002); as amended by Final Rulemaking published at 63 DCR 6146 (April 22, 2016). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 1508

7 DCMR § 1509 FILING AND PUBLICATION OF ADOPTED MEASURE

1509.1 Rules and regulations adopted by the Board that affect legal rights, duties, or privileges of specific parties other than Board members and its staff shall be filed in the District of Columbia Office of Documents, and non-emergency rules and regulations shall not become effective until after they are published in the District of Columbia Register, unless otherwise provide by law.

History

SOURCE: Final Rulemaking published at 32 DCR 5111 (September 6, 1985); as amended by Final Rulemaking published at 49 DCR 10792 (November 29, 2002); as amended by Final Rulemaking published at 63 DCR 6146 (April 22, 2016). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 1509

7 DCMR § 1510 [RESERVED]

History

SOURCE: Final Rulemaking published at 32 DCR 5111 (September 6, 1985); as amended by Final Rulemaking published at 49 DCR 10792 (November 29, 2002); as amended by Final Rulemaking published at 63 DCR 6146 (April 22, 2016); as amended by Final Rulemaking published at 65 DCR 2951 (March 23, 2018); as corrected by Errata Notice published at 65 DCR 7562 (July 20, 2018). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 1510

7 DCMR § 1511 ELECTION OF TRUSTEES

1511.1 In accordance with the Reform Act, the Board of Trustees is responsible for and shall conduct elections to allow qualified voters to elect:

One (1) active member representative and one (1) retired member representative from FEMS;

One (1) active member representative and one (1) retired member representative from MPD;

One (1) active member representative and one (1) retired member representative from DCPS.

1511.2 The Board is authorized to act as the election official or to enter into an agreement with an election official to delegate certain functions and responsibilities vested in the Board by the Reform Act. The election official shall adhere to these Rules without partiality toward any candidate.

1511.3 The election official shall be the primary point of contact for all matters pertaining to a Board election during an election cycle. To avoid the appearance of a conflict of interest or partiality, the Board and Board staff shall refrain from communicating with qualified voters, including prospective or eligible candidates, on matters related to a Board election during an election cycle and shall direct any inquiries or concerns to the attention of the election official immediately.

1511.4 The election official shall prepare a schedule for conducting the election of a trustee or trustees during each election cycle. The election schedule shall include:

The date on which Statement of Candidacy forms shall be made available to qualified voters by the election official;

The date on which completed Statement of Candidacy forms must be submitted to the election official by qualified voters;

The date on which the election official will distribute ballots to qualified voters;

The last date on which the completed ballots must be received by the election official from qualified voters; and

The date on which the election results are to be presented to the Board for certification.

1511.5 Timing.

The election schedule shall:

Allow for no fewer than twenty (20) days for qualified voters to complete and submit a Statement of Candidacy form;

Provide for notification to nominated qualified voters of their eligibility or ineligibility to stand for election no later than ten (10) days after the due date for submission of Statement of Candidacy forms has passed and the forms have been validated;

Allow qualified voters no less than thirty (30) days to complete and submit election ballots; and

Allow eligible candidates no fewer than seven (7) days to request a recount of the election ballots after the publication of the certified election results in accordance with Section 1523 of these Rules.

1511.6 Method of Delivery.

Election materials, which include any related schedules and notices, shall be provided in a manner that is contemplated to reach the greatest number of qualified voters, including, but not limited to, mail, electronic mail, and publication on the Board’s website or other Board communication portal, provided that the method of distribution allows qualified voters a reasonable time to comply with the dates included in the election schedule for an election cycle.

The method or methods used to distribute election materials shall clearly and prominently state:

That the communication is made on behalf of the Board;

The category of qualified voter to which the communication is addressed; and

That the communication contains election materials.

1511.7 Any substantive amendment to election materials, which impacts any date included in the election schedule for an election cycle, must be made available to qualified voters as soon as administratively possible in the same manner provided for in Section 1511.6 of these Rules.

1511.8 The election official shall provide election materials to qualified voters. The Board shall make available to the election official a list of qualified voters. The list shall be comprised of qualified voters included in the payroll or pension roll paid within thirty (30) days, but no more than sixty (60) days, prior to the distribution of election notices.

1511.9 Election materials may also be made available by the election official upon request from a qualified voter.

History

SOURCE: Final Rulemaking published at 32 DCR 5111 (September 6, 1985); as amended by Final Rulemaking published at 49 DCR 10792 (November 29, 2002); as amended by Final Rulemaking published at 58 DCR 10347 (December 9, 2011); as amended by Final Rulemaking published at 60 DCR 12635 (September 6, 2013); as amended by Final Rulemaking published at 63 DCR 6146 (April 22, 2016); as amended by Final Rulemaking published at 65 DCR 2951 (March 23, 2018). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 1511

7 DCMR § 1512 ELECTION NOTICE

1512.1 During any election cycle, the election official must notify all qualified voters of the impending election of a trustee or trustees within the timeframe provided in the election schedule.

1512.2 The election notice shall include:

A copy of the election schedule;

A Statement of Candidacy form (or location where such a form may be accessed), which includes:

The category of qualified voter slated for trustee election;

An explanation of the qualifications, duties, responsibilities, and compensation of Board trustees;

A blank section for input of a prospective candidate’s name (written how he or she would like his or her name to be listed on the ballot), address, and contact information. By providing an email address, the prospective candidate consents to receiving official communication by email to the email address provided;

Instructions for the submission and completion of the Qualifications Statement;

An oath, signed and dated by the prospective candidate, attesting that the candidate meets the qualifications for holding the office sought and, if elected, he or she understands and agrees to comply with the duties and responsibilities of Board trustees;

A declaration, signed and dated by the prospective candidate, affirming that all of the information included in and with the Statement of Candidacy form, is true and correct to the best knowledge and belief of the prospective candidate; and

Instructions for filling out and submitting the Statement of Candidacy form, including the date, time, location, and method(s) of submission.

A reference to where qualified voters may access these Rules in their entirety; and

Any other information the election official considers necessary for qualified voters to fully understand the purpose and procedures of the election.

1512.3 The election notices shall be distributed to qualified voters in a manner consistent with Section 1511.6 of these Rules.

History

SOURCE: Final Rulemaking published at 32 DCR 5111 (September 6, 1985); as amended by Final Rulemaking published at 49 DCR 10792 (November 29, 2002); as amended by Final Rulemaking published at 63 DCR 6146 (April 22, 2016); as amended by Final Rulemaking published at 65 DCR 2951 (March 23, 2018). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 1512

7 DCMR § 1513 ELIGIBILITY OF CANDIDATES

1513.1 A prospective candidate must be nominated by a qualified voter in the category in which the prospective candidate is seeking election to be eligible for election. A qualified voter in the category for which the trustee election is being held may nominate himself or herself for election.

1513.2 To qualify as an eligible candidate for election to the Board and have his or her name printed on a ballot, a prospective candidate must:

be a qualified voter in the category in which the prospective candidate is seeking election;

qualify to serve as a fiduciary to the District of Columbia Police Officers and Fire Fighters’ and the Teachers’ Retirement Funds (the “Funds”) pursuant to D.C. Code §1-744(a);

file with the election official a valid Statement of Candidacy form in accordance with Section 1514 of these Rules; and

not be an “elected official” or be a candidate for the office of an elected official in the District of Columbia, as defined in D.C. Code §1001.02(13).

History

SOURCE: Final Rulemaking published at 32 DCR 5111 (September 6, 1985); as amended by Final Rulemaking published at 63 DCR 6146 (April 22, 2016); as amended by Final Rulemaking published at 65 DCR 2951 (March 23, 2018). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 1513

7 DCMR § 1514 VALIDATION OF STATEMENTS OF CANDIDACY

1514.1 A Statement of Candidacy shall be considered valid if it satisfies all of the following conditions:

the Statement of Candidacy is received by the election official on or before the date and time designated by the election official;

the Statement of Candidacy is on a form provided or authorized by the Board and all sections have been completed in legible font or print;

the Statement of Candidacy is filed by a person who is a qualified voter in the category for which the trustee election is being held;

the Statement of Candidacy is accompanied by a valid Qualifications Statement; and

the Statement of Candidacy contains a signed oath and declaration.

1514.2 A Qualifications Statement shall be considered valid if it satisfies all of the following conditions:

The Qualifications Statement shall be submitted with the Statement of Candidacy form pursuant to Section 1512.2(b)(4) of these Rules; either typed or printed on the Statement of Candidacy form or on a separate blank sheet of paper.

The Qualifications Statement shall identify the eligible candidate and the qualified voter category for which the candidate is seeking election. The statement may also state the candidate’s qualifications and experience, and outline his or her plans and goals if elected.

A Qualifications Statement shall not include an endorsement of any kind.

The Qualifications Statement shall not exceed two hundred and fifty (250) words in length. For purposes of this section, the following rules shall apply to the counting of words in a Qualifications Statement:

Punctuation is not counted;

Each word shall be counted as one (1) word, except as specified in this subsection;

All geographical names shall be considered as one (1) word; for example, “District of Columbia” shall be counted as one (1) word;

Each abbreviation of a word, phrase, or expression shall be counted as one (1) word;

Hyphenated words that appear in any generally available dictionary shall be considered as one (1) word. Each part of all other hyphenated words shall be counted as a separate word;

Dates consisting of a combination of words and digits shall be counted as two (2) words; for example, “December 31, 2017” shall be counted as two (2) words. Dates consisting of only a combination of digits shall be counted as one (1) word; for example, “12/31/2017” shall be counted as one (1) word; and

Any number consisting of a digit or digits shall be considered one (1) word. For example, any number which is spelled, such as “one,” shall be considered as a separate word or words. “One” shall be counted as one (1) word whereas “one hundred” shall be counted as two (2) words. The number one hundred “100” expressed in digits shall be counted as one (1) word.

1514.3 The election official shall exclude from print on the ballot or other election materials any portion of a Qualifications Statement that exceeds the maximum word limitation, is interpreted to be an endorsement, or that includes a statement that is false or misleading. The election official may, but is not required to, allow a candidate the opportunity to correct a false or misleading statement included within a Qualifications Statement.

1514.4 The election official may, but is not required to, provide acknowledgement of receipt of a prospective candidate’s Statement of Candidacy.

1514.5 Upon receipt of Statement of Candidacy forms, the election official shall determine whether the statements are valid. The election official shall document how the eligibility or ineligibility of each candidate was determined and provide a report, including each candidate’s Statement of Candidacy form, to the Executive Director no later than three (3) days after the date Statements of Candidacy are due to the election official.

1514.6 The determination by the election official of the validity of Statements of Candidacy, including Qualifications Statements, shall be final and only subject to further administrative review at the discretion of the Executive Director. A determination of eligibility or ineligibility shall be based solely on information contained in the Statements of Candidacy and upon information contained in other public records and documents available to the election official. The Executive Director may reverse a determination of eligibility at any point prior to the certification of election results based upon evidence that was not known to the election official at the time of the initial determination of eligibility or upon evidence of a change in circumstances.

1514.7 The election official shall provide notification to a prospective candidate of his or her ineligibility to stand for election no later than ten (10) days after the due date for the submission of Statement of Candidacy forms has passed and the statements have been validated.

A prospective candidate who is ineligible for election because his or her Statement of Candidacy is rejected for reasons other than those outlined in Sections 1513.2 and 1514.1(a) of these Rules, may submit one (1) new or amended Statement of Candidacy, which must be received by the election official no later than five (5) days after the date his or her notice of deficiency was mailed.

1514.8 Once all eligible candidates have been identified, a notification of eligibility, including a copy of the eligible candidate’s Qualifications Statement, shall be provided to each eligible candidate no fewer than seven (7) days prior to the scheduled date of the drawing of lots to determine ballot position. The notification of eligibility shall include:

The time, date, and location for drawing lots; and

Notification of the eligible candidate’s sole opportunity to proofread and correct any transcription errors, such as spelling and grammatical errors, which may be included in the eligible candidate’s Qualifications Statement, with instructions on how to make any such corrections.

1514.9 A candidate may withdraw his or her candidacy only by written notice to the election official. A candidate is presumed to have withdrawn from the election if he or she fails to submit a new or amended Statement of Candidacy, upon request, pursuant to Section 1514.7(a) of these Rules. A withdrawal shall be irrevocable only for the election cycle in which it occurs. The election official shall inform the Executive Director of any withdrawals. Where a withdrawal impacts the accuracy of information included on the ballots, after ballots have been printed or made available to qualified voters, the election official shall provide notice to all qualified voters within the impacted qualified voter category as soon as administratively possible in accordance with Section 1511.6 of these Rules.

1514.10 If the election official determines that there are no prospective candidates eligible to stand for election, the election official shall:

Terminate the election for which no candidate is eligible to be placed on the ballot;

Promptly prepare a new election schedule in substantial conformity with Section 1511.4 of these Rules;

Proceed, if applicable, with any other election of trustees with more than one eligible candidate; and

Conduct an election for the impacted qualified voter category in accordance with the new election schedule.

A new election schedule required under this section may result in a delay in the start date of an elected trustee’s term.

1514.11 Uncontested Election – One Eligible Candidate in a Category

If an election official certifies that only one (1) eligible candidate exists in a qualified voter category, the election official shall:

Declare an uncontested election and discontinue the election process for the qualified voter category; and

Distribute a notice informing impacted qualified voters that they will not receive an election ballot due to an uncontested election and that the results of the uncontested election shall be certified with the election results of the other qualified voter categories included in the election cycle, in accordance with Section 1522 of these Rules.

If an election cycle does not include another qualified voter category for election, the Board shall proceed with certifying the results of the uncontested election in accordance with Section 1522 of these Rules.

History

SOURCE: Final Rulemaking published at 32 DCR 5111 (September 6, 1985); as amended by Final Rulemaking published at 49 DCR 10792 (November 29, 2002); as amended by Final Rulemaking published at 63 DCR 6146 (April 22, 2016); as amended by Final Rulemaking published at 65 DCR 2951 (March 23, 2018). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 1514

7 DCMR § 1515 CAMPAIGNING

1515.1 A candidate must behave in an ethical and professional manner when engaged in any activities related to his or her candidacy.

1515.2 A candidate may not campaign or otherwise advance his or her candidacy for election in any way prior to receiving notice from the election official that he or she is eligible for election.

1515.3 No staff, officer, or trustee of the Board shall campaign on behalf of, or endorse, any candidate in preference to any other candidate. Nor shall any staff, officer, or trustee of the Board use their official authority or influence to interfere with or affect the result of any election.

1515.4 A candidate may not engage in any unfair campaign practice, including, but not limited to: libeling or slandering another candidate; maliciously disrupting another candidate’s campaign; making verbally or in writing, actual or potentially defamatory or discriminatory remarks or comments; or otherwise violate any provisions of Section 1515 of these Rules.

1515.5 A candidate may not, in connection with his or her candidacy, make or repeat any statement that is untruthful, deceptive, or misleading, or that omits material information that renders a statement untruthful or misleading.

1515.6 A candidate may not imply that the way a qualified voter votes will result in any reward or retaliation of any funding, benefit or opportunity under the Retirement Plans.

1515.7 A candidate may not use any Board or District government resources for campaign purposes, including any such resources that are exclusively available to the candidate in his or her capacity as a trustee, officer, appointee or representative of the Board.

1515.8 Each candidate is responsible for activity that another undertakes on his or her behalf, as if the candidate is undertaking the activity himself or herself, unless the candidate sincerely and affirmatively discourages such activity publicly.

1515.9 A candidate may organize and/or attend an event for the purpose of allowing qualified voters to “meet & greet” the candidate in accordance with Section 1515 of these Rules.

1515.10 A candidate may create a website or use other forms of social media to promote his or her candidacy in accordance with this Section. Upon its creation or use for campaign purposes, the candidate must notify the election official and provide the election official with a link to the website or social media page.

History

SOURCE: Final Rulemaking published at 32 DCR 5111 (September 6, 1985); as amended by Final Rulemaking published at 63 DCR 6146 (April 22, 2016); as amended by Final Rulemaking published at 65 DCR 2951 (March 23, 2018). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 1515

7 DCMR § 1516 DRAWING OF LOTS FOR BALLOT ORDER

1516.1 In each election cycle, for each qualified voter category, the election official shall determine, by drawing lots, the order of eligible candidate names on the ballots.

1516.2 Drawing lots shall be conducted by the election official in the following manner:

The name of each eligible candidate shall be typed or written on separate slips of paper and placed in a container in a manner such that the names on the slips of paper shall be hidden from the view of the individual drawing.

The election official shall draw from the container one slip of paper at a time until all names have been drawn.

The eligible candidate whose name is pulled first from the container shall have his or her name appear first on the ballot. The eligible candidate whose name is pulled second shall have his or her name placed second on the ballot. This order shall continue until all eligible candidate ballot positions have been determined.

In the event of the withdrawal or disqualification of an eligible candidate prior to the printing of the ballots, the position of each eligible candidate that appears beneath the name of the former candidate shall be raised to the next higher position. The election official shall make reasonable efforts to remove or strike from the ballots the name of an eligible candidate who has withdrawn or been disqualified after the ballots have been printed.

1516.3 Upon approval by the Executive Director, where appropriate and available, the election official may utilize an electronic method which closely resembles the in-person lottery outlined in this section, provided that the election official attests, in writing, that the method used is confidential, secure, reliable and results in a randomized order of eligible candidates on the ballots.

1516.4 An eligible candidate, or his or her designated authorized representative, may view the drawing of lots. An eligible candidate must notify the election official of their intent to view the drawing of lots, in writing, no later than twenty-four (24) hours prior to the scheduled date of the drawing of lots.

History

SOURCE: Final Rulemaking published at 32 DCR 5111 (September 6, 1985); as amended by Final Rulemaking published at 63 DCR 6146 (April 22, 2016); as amended by Final Rulemaking published at 65 DCR 2951 (March 23, 2018). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 1516

7 DCMR § 1517 BALLOT CONTENT AND FORM

1517.1 The election official shall provide official ballots to qualified voters for the purpose of selecting an eligible candidate preference in an election. The Board shall make available to the election official a list of qualified voters. The list shall be comprised of qualified voters included in the payroll or pension roll paid within thirty (30) days, but no more than sixty (60) days, prior to the distribution official ballots.

1517.2 Ballots shall be distributed or made available to each qualified voter no fewer than thirty (30) days before the date balloting shall be completed.

1517.3 Official ballots shall include the following information:

Instructions for completing and submitting ballots drafted specifically for any form or method of balloting being used;

The category of qualified voter from which the person is eligible to elect a representative; and

The name and Qualifications Statement of each eligible candidate. Qualifications Statements need not be printed on, but must be included with, the ballots. Names of eligible candidates shall appear on the ballot:

in the same form as each eligible candidate’s name appears on his or her Statement of Candidacy form. No titles, ranks, prefixes, or degrees associated with a name shall appear on the ballot; and

in the order determined by the drawing of lots conducted in accordance with Section 1516 of these Rules.

1517.4 A qualified voter may contact the election official to request the issuance of a replacement ballot. The election official shall maintain a record identifying the voter to ensure that the issuance of a replacement ballot does not result in unauthorized or duplicate balloting. When a qualified voter requests a replacement ballot within fewer than five (5) days before the date balloting is scheduled to be completed, the qualified voter shall only have the option of submitting an electronic or telephone ballot.

1517.5 An individual who did not receive a ballot due to his/her name not being included on the list of qualified voters at the time such list was provided to the election official, may contact the election official to request the issuance of a provisional ballot. The election official shall maintain a record identifying the voter to ensure that the issuance of a provisional ballot does not result in unauthorized or duplicate balloting. When an individual requests a provisional ballot within fewer than five (5) days before the date balloting is scheduled to be completed, the individual shall only have the option of submitting an electronic or telephone ballot.

The Executive Director shall have an individual verified as a qualified voter in the applicable qualified voter category prior to the completion of ballot counting. The election official shall not count as valid any provisional ballot submitted by an individual who has not been verified to be a qualified voter in the applicable qualified voter category.

1517.6 The election official shall not issue more than three (3) ballots, one (1) original and two (2) replacements, to any qualified voter during an election cycle. At the time the election official issues a replacement ballot, the election official shall inform the qualified voter of the qualified voter’s limited remaining replacement ballots.

1517.7 Completed ballots shall be received by the election official on or before the date and time designated on the ballot.

1517.8 The Executive Director shall authorize the election official to use a balloting system that consists of paper ballots, telephonic ballots, electronic ballots, or any combination thereof, provided that the election official shall conduct the balloting in a manner that is consistent with the principles and objectives enumerated in these Rules. The election official shall take every reasonable precaution to safeguard the authenticity and secrecy of the balloting system and process, as well as individual ballots.

1517.9 The election official shall distribute or make available an official ballot for each qualified voter category that shall be separate and distinct from the ballot for any other qualified voter category in an election cycle. Each ballot shall contain a unique control number and be readily identifiable from the ballot for any other qualified voter category. The election official shall maintain a record identifying the unique control number for each ballot.

1517.10 A ballot shall have a selection method immediately next to the name of each eligible candidate included on the ballot where a qualified voter must indicate his or her choice with a single mark.

1517.11 If applicable, paper ballots shall be returned to the election official in pre-addressed, postage paid return envelopes, preprinted with the unique control number included on the ballot.

History

SOURCE: Final Rulemaking published at 32 DCR 5111 (September 6, 1985); as amended by Final Rulemaking published at 49 DCR 10792 (November 29, 2002); as amended by Final Rulemaking published at 63 DCR 6146 (April 22, 2016); as amended by Final Rulemaking published at 65 DCR 2951 (March 23, 2018). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 1517

7 DCMR § 1518 VALIDITY OF BALLOTS AND VOTES

1518.1 Only official ballots shall be validated and counted. Improper ballots or votes shall be deemed invalid and not counted. Improper ballots or votes shall include, but are not limited to:

Any ballot which is received by the election official after the date and time determined by the election official for return of ballots, except for those ballots postmarked prior to the deadline but delayed in the mail and received prior to the date in which ballot counting begins;

Any ballot which is not an original, replacement, or provisional ballot issued by the election official to a qualified voter;

Any ballot cast in which the qualified voter fails to mark a choice;

Any ballot which is signed, initialed, or otherwise marked in a manner which serves to reveal the identity of the qualified voter;

Any ballot on which the qualified voter has filled in the voting positions for more than one eligible candidate name included on the ballot (extraneous marks or other matter on a ballot which do not lead to confusion as to the intention of the qualified voter, may be disregarded and the ballot considered valid);

Any ballot on which a qualified voter has written in the name of a person other than an eligible candidate whose name is pre-printed on the ballot; and

Any paper ballot which is not returned within a pre-addressed, postage paid return envelope with a unique control number corresponding with the unique control number included on the ballot (except for any ballot submitted by an authorized electronic means).

1518.2 No qualified voter shall cast more than one ballot, in any form, in an election or vote in a category other than the category in which he or she is a qualified voter. Duplicate or unauthorized ballots or votes shall be deemed improper and not counted.

1518.3 Nothing contained in Section 1518.1 of these Rules shall be construed as invalidating any ballot solely because of a voter’s failure to follow the instructions for filling out an official ballot provided pursuant to Section 1517.3(a) of these Rules. If a voter draws an arrow pointing to an eligible candidate’s name, circles an eligible candidate’s name or the voting box next to an eligible candidate’s name, places a check, asterisk, or other mark in such a manner that clearly indicates his or her intended choice, the ballot shall be considered valid and shall be counted as a vote for such eligible candidate.

1518.4 The election official shall make determinations of the validity of ballots or votes. The determination of the election official in charge as to the validity of any ballot or vote shall be final and only subject to further administrative review at the discretion of the Executive Director.

1518.5 Any ballot counter or authorized watcher who is uncertain whether a ballot or vote is valid shall refer the ballot to the election official in charge for a determination.

1518.6 No ballot counter shall mark on any ballot. The election official in charge may only mark a ballot to denote that the ballot has been determined to be invalid. The election official in charge shall initial the ballot below his or her marking. A ballot determined to be invalid shall remain in the custody of the election official in charge and stored in a secure location, separate from ballots deemed valid.

History

SOURCE: Final Rulemaking published at 32 DCR 5111 (September 6, 1985); as amended by Final Rulemaking published at 49 DCR 10792 (November 29, 2002); as amended by Final Rulemaking published at 63 DCR 6146 (April 22, 2016); as amended by Final Rulemaking published at 65 DCR 2951 (March 23, 2018). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 1518

7 DCMR § 1519 BALLOTING SYSTEM STANDARDS AND TESTING

1519.1 The election official shall allow the Executive Director the opportunity to review and approve proofs of final election materials, including official ballots, prior to their printing or distribution to qualified voters.

1519.2 The election official shall use a balloting system that a qualified voter can quickly and easily use to cast a ballot for the eligible candidate of the qualified voter’s choice. The balloting system shall be capable of:

Creating an accurate record of every ballot and vote cast;

Generating a final report of the election, as well as interim reports, as necessary;

Identifying errors, including system errors, which impact qualified voters’ ability to cast ballots or which impact the overall validity of the election;

Allowing secured voting in absolutely secrecy; and

Providing a confirmation of the vote cast by a qualified voter, except in the case of paper balloting.

1519.3 The election official shall allow the Executive Director to conduct testing of any telephonic or electronic balloting system before the use of such system for an election.

1519.4 The testing shall ensure that the balloting system:

Contains correct ballot information, including the names and Qualifications Statements of all eligible candidates;

Records votes accurately, consistently and securely; and

Is free of any evidence of malfunction.

1519.5 The balloting system configuration tested and approved during the testing period shall be the same configuration used during the balloting period.

1519.6 The election official shall immediately correct any errors or deficiencies identified in or with the balloting system during the testing or balloting period.

History

SOURCE: Final Rulemaking published at 32 DCR 5111 (September 6, 1985); as amended by Final Rulemaking published at 49 DCR 10792 (November 29, 2002); as amended by Final Rulemaking published at 63 DCR 6146 (April 22, 2016); as amended by Final Rulemaking published at 65 DCR 2951 (March 23, 2018). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 1519

7 DCMR § 1520 BALLOT COUNTING

1520.1 The election official shall designate an election official in charge who shall be responsible for the direct supervision and oversight of the ballot counting process. The election official shall also designate ballot counters authorized to count and tally ballots. No person who is a qualified voter may be a ballot counter for the category in which he or she is eligible to vote.

1520.2 The election official shall strive to count the ballots and complete its official voting record for the Board within three (3) days after the date that balloting is completed, but no later than seven (7) days after such date.

1520.3 The election official shall maintain returned ballots by secure means and shall use appropriate safeguards to ensure that the security of each ballot is preserved.

1520.4 When paper ballots are counted by hand, the election official in charge shall have full authority to maintain order in the designated ballot counting location.

1520.5 The only persons permitted to be present in a designated ballot counting location while ballots are being counted shall be the election official in charge, ballot counters, designated representatives of the Board, police officers requested by the Board and authorized watchers.

1520.6 The election official shall count the number of valid ballots cast for each eligible candidate in each qualified voter category by every form or method of balloting used in an election.

1520.7 The eligible candidate receiving the highest number of votes in each qualified voter category included in an election shall be declared the winner for that category.

1520.8 Following the tally of all ballots, the election official shall provide the Board with an official voting record for each category of qualified voter. The record shall identify for each qualified voter category:

The method or methods of balloting used;

The number of ballots cast and counted for each eligible candidate;

The total number of ballots issued;

The total number of replacement and provisional ballots issued;

The total number of ballots issued, but not cast;

The total number of ballots cast and counted;

The total number of ballots cast in each method of balloting, if more than one method is used;

The total number of blank ballots returned;

The total number of ballots returned and invalidated or voided;

Any claims of discrepancy or error in the counting of the ballots made during the balloting process; and

The results of the election.

1520.9 The election official in charge shall attest that the ballots and balloting procedures used in the election conform with the requirements set forth in Sections 1517, 1518, 1519, and 1520 of these Rules.

1520.10 The election official shall securely maintain and provide ballots and other election materials to DCRB at a place and time, and in a manner, determined by DCRB for recordkeeping and storage purposes. Election materials developed during, or in support of, an election cycle shall be the property of DCRB.

1520.11 The Board may declare the results of any election in any qualified voter category void and conduct a new election for that category, where the Board determines the winner to be ineligible for service on the Board due to:

fraud, bribery, intimidation, or interference with voting in that category;

tampering with ballots in that category;

violation of the campaigning rules included in Section 1515 of these Rules; or

any other mistake or defect serious enough to vitiate the election in that category as a fair expression of the will of the voters voting therein.

A new election conducted under this Section may result in a delay in the start date of an elected trustee’s term.

History

SOURCE: Final Rulemaking published at 32 DCR 5111 (September 6, 1985); as amended by Final Rulemaking published at 49 DCR 10792 (November 29, 2002); as amended by Final Rulemaking published at 63 DCR 6146 (April 22, 2016); as amended by Final Rulemaking published at 65 DCR 2951 (March 23, 2018). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 1520

7 DCMR § 1521 AUTHORIZED WATCHERS

1521.1 When paper ballots are counted by hand, an eligible candidate shall be notified of his or her right to be present to observe the counting of ballots in person as an authorized watcher, or to designate another to act as an authorized watcher to attend the ballot counting on his or her behalf.

Eligible candidates shall be notified of the time, date, and location of the counting of ballots no fewer than five (5) days before the date of ballot counting.

An eligible candidate must notify the election official, in writing, of their intent to be, or designate, an authorized watcher no later than twenty-four (24) hours prior to the scheduled date of the ballot counting.

1521.2 An authorized watcher shall be required to show a valid form of photo identification to enter the ballot counting location.

1521.3 Each authorized watcher shall be issued a badge with space for the watcher’s name and, if a designee of an eligible candidate, the name of the eligible candidate represented by the authorized watcher.

1521.4 Badges shall be worn in plain view by the authorized watcher at all times, when he or she is inside the ballot counting location while ballot counting is being conducted.

1521.5 An authorized watcher shall comply with any measures put in place by the election official in charge to maintain order in the ballot counting place and shall conform to the provisions of Section 1521 of these Rules.

1521.6 No authorized watcher shall, at any time during the ballot counting process, do any of the following:

Touch any official record or ballot;

Obstruct or interfere with the progress of the counting; or

(c) Talk to any ballot counter while the count is under way, except to request that a ballot be referred to the election official in charge for a determination as to its validity.

1521.7 If an authorized watcher has any questions, or claims any discrepancy or error in the counting of the vote, the authorized watcher shall direct the question or complaint to the election official in charge.

1521.8 Any authorized watcher who, in the judgment of the election official in charge, has failed to comply with any of the requirements contained in Section 1521 of these Rules, failed to obey any reasonable order of the election official in charge, or acted in a disorderly manner, shall be warned to cease and desist such conduct. If the authorized watcher fails to cease and desist such conduct, the election official in charge may order such authorized watcher to leave the ballot counting location. In such event, the authorized watcher’s credentials shall be deemed cancelled, and he or she shall leave the ballot counting location immediately. The election official in charge may request a member of the Metropolitan Police Department to evict the authorized watcher or otherwise enforce his or her lawful orders.

History

SOURCE: Final Rulemaking published at 32 DCR 5111 (September 6, 1985); as amended by Final Rulemaking published at 49 DCR 10792 (November 29, 2002); as amended by Final Rulemaking published at 63 DCR 6146 (April 22, 2016); as amended by Final Rulemaking published at 65 DCR 2951 (March 23, 2018). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 1521

7 DCMR § 1522 CERTIFICATION OF ELECTION RESULTS

1522.1 The Board shall certify the results of each election and publish the results in the District of Columbia Register and on the Board’s website.

1522.2 The election results shall be deemed final and not subject to further administrative review thirty (30) days after publication in the District of Columbia Register of the certified election results, or any amendment to the certified election results required after a petition for recount, which resulted in a change to an election winner.

1522.3 Following certification of the results of the election, the Board shall retain and store in a secure and locked storage location, all election materials used during the election cycle where they shall remain for at least thirty (30) days after the certified election results have been published in the District of Columbia Register.

History

SOURCE: Final Rulemaking published at 32 DCR 5111 (September 6, 1985); as amended by Final Rulemaking published at 49 DCR 10792 (November 29, 2002); as amended by Final Rulemaking published at 63 DCR 6146 (April 22, 2016); as amended by Final Rulemaking published at 65 DCR 2951 (March 23, 2018). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 1522

7 DCMR § 1523 RECOUNTS AND RESOLVING TIE VOTES

1523.1 An eligible candidate in any election may, within seven (7) days after the Board certifies the election results and publishes those results in the District of Columbia Register, petition the Board, in writing, for a recount of the ballots cast in that election. Such petition shall explicitly state the justification for a ballot recount.

1523.2 Upon receipt of a recount petition, the Board shall direct the election official to conduct a recount, at no cost to any eligible candidate, if the certified election results show a margin of victory for an eligible candidate that is less than one percent (1%) of the total votes cast or fifty (50) votes, whichever is less, for the qualified voter category.

1523.3 Upon receipt of a recount petition that does not meet the criteria set forth in Section 1523.2, the Board shall direct the election official to prepare an estimate of the time and cost to perform the recount, which shall be provided to the petitioner in writing.

1523.4 If the petitioner chooses to proceed with a recount, the petitioner shall deposit with the Board the estimated cost of the recount within seven (7) days of receipt of the estimate of the time and cost of the recount.

1523.5 Deposits shall be paid by certified check or money order made payable to the “District of Columbia Retirement Board.” No cash deposit will be accepted.

1523.6 At the conclusion of any recount, a report of the recount results shall be presented to the Board and posted on the Board’s website.

1523.7 If a recount, for which a deposit was made to the Board to cover estimated costs changes the results of the election, the entire amount deposited by the petitioner shall be refunded.

1523.8 If the result of the election is not changed, the petitioner is liable for the actual cost of the recount, minus the deposit already made. If the actual cost of the recount is less than the deposit made, the difference shall be refunded to the petitioner.

1523.9 There shall only be one (1) recount per election in a qualified voter category. The results of a recount are final and not subject to further administrative review.

1523.10 The Board shall not publish an amended certification of election results in the District of Columbia Register, unless the outcome of an election has changed as a result of a recount.

1523.11 In the event of a tie vote for a winner of an election, the election official shall conduct an automatic recount, at no cost to any eligible candidate. If the recount confirms the tie vote, the election official shall determine, by drawing lots, the resolution of the tie vote and winner of the election.

1523.12 After a recount confirms the tie vote, a notification of the drawing of lots for the resolution of a tie vote, shall be provided to each eligible candidate no fewer than three (3) days prior to the scheduled date of the drawing of lots. The notification shall include the time, date, and location of the drawing of lots.

1523.13 An eligible candidate, or his or her designated authorized representative, may view the drawing of lots for the resolution of a tie vote. An eligible candidate must notify the election official of his or her intent to view the drawing of lots, in writing, no later than twenty-four (24) hours prior to the scheduled date of the drawing of lots.

1523.14 Drawing of lots for the resolution of a tie vote shall be conducted by the election official in the following manner:

The name of each of the tied eligible candidates shall be typed or written on separate slips of paper and placed in a container in a manner such that the names on the slips of paper shall be hidden from the view of the individual drawing.

The election official shall draw from the container one slip of paper.

The eligible candidate whose name is pulled first from the container shall be deemed the winner of the election.

History

SOURCE: Final Rulemaking published at 32 DCR 5111 (September 6, 1985); as amended by Final Rulemaking published at 49 DCR 10792 (November 29, 2002); as amended by Final Rulemaking published at 63 DCR 6146 (April 22, 2016); as amended by Final Rulemaking published at 65 DCR 2951 (March 23, 2018). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 1523

7 DCMR § 1524 SPECIAL ELECTION FOR VACANCY OF TRUSTEE POSITION DURING TERM

1524.1 In the event of death, resignation, or removal of a Board trustee before completion of his or her term, where the remainder of the term is greater than six (6) months, the Board shall authorize the election official to conduct a special election to elect a successor trustee to serve for the remainder of the trustee’s term. The election shall be conducted in substantial conformity with the procedures set forth in these Rules.

History

SOURCE: Final Rulemaking published at 32 DCR 5111 (September 6, 1985); as amended by Final Rulemaking published at 63 DCR 6146 (April 22, 2016); as amended by Final Rulemaking published at 65 DCR 2951 (March 23, 2018). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 1524

7 DCMR § 1525 DECORUM OF MEMBERS

1525.1 No Board member shall engage in private discourse or commit any other act tending to distract the attention of the Board from the business before it.

1525.2 Board members shall confine their remarks to the questions under discussion or debate, and shall avoid personal remarks.

7 DCMR § 1526 DECORUM OF MEMBERS OF THE PUBLIC

1526.1 The Chairman shall maintain order in the meeting room, and if in the Chairman's opinion the removal of any member of the public is necessary for the maintenance of order, the Chairman may, after warning, order the Sergeant-At-Arms to remove any disorderly person.

History

SOURCE: Notice of Final Rulemaking published at 49 DCR 10807 (November 29, 2002).

7 DCMR § 1527 OPEN MEETINGS

1527.1 All meetings of the Board at which official action of any kind is taken shall be open to the public as required by relevant "sunshine" laws of the District of Columbia. D.C. Code §2-531 (2001). No rule, regulation, resolution, or other official action shall be effective unless enacted or taken at an open meeting.

History

SOURCE: Notice of Final Rulemaking published at 49 DCR 10807 (November 29, 2002).

7 DCMR § 1528 EXECUTIVE SESSION

1528.1 The Board may, upon the affirmative vote of two-thirds of the members present and voting at a public meeting, convene an executive session to the extent permitted by §1528.3 and §166 (c) of the District of Columbia Retirement Reform Act of 1979, D.C. Code §1-736 (2001) and §§145(e) and (f) of the Police Officers, Fire Fighters, and Teachers Retirement Benefit Replacement Plan Act of 1998 D.C. Code §§1-909.05 (e) and (f) (2001). Executive sessions shall not be recorded unless approved by a unanimous vote of the Board.

1528.2 An executive session of the Board shall be closed to the public, and all materials received, and transcripts of discussions held shall not be deemed a "public record" in accordance with D.C. Code §2-532 (2001), and shall be given appropriate safeguarding.

1528.3 Any meeting, or any portion of a meeting, may be held in executive session, consistent with the requirements of D.C. Code §§2-537 and 2-538.1 (2001), if the matters to be discussed at the meeting satisfy any of the following criteria and requirements:

(a) Relate to matters of the Board, or Board staff or internal staff management or procedure;

(b) Tend to injure, disgrace, or expose an individual to public contempt; or

(d) Disclose information relating to trade secrets or financial or commercial information that is required to be kept confidential by an Act of Congress or the District of Columbia, or that has been received by the Board on a confidential basis in order to prevent undue injury to the competitive position of any person; or

(e) Deliberations or tentative or final decisions on investment or other financial matter, the disclosure of which may jeopardize the ability of the Board to implement an investment decision or achieve investment objectives.

History

SOURCE: Notice of Final Rulemaking published at 49 DCR 10807, 10808 (November 29, 2002).

7 DCMR § 1529 RECORDS OF MEETINGS

1529.1 Copies of the written transcript or minutes of public meetings shall be made available upon request to the public at reasonable cost. A written transcript or minutes shall be kept for all meetings at which official action of any kind is taken, and shall be made available to the public during the normal business hours of the Board, except as provided in §1528.

1529.2 All Board meetings, regular, additional, committee, or special meetings shall be recorded on tape.

History

SOURCE: Notice of Final Rulemaking published at 49 DCR 10808 (November 29, 2002).

7 DCMR § 1530 AGENDA

1530.1 The agenda for each Board or respective Committee meeting shall be circulated to all Board members at least five (5) days, including Saturdays, Sundays and holidays prior to the Board or respective Committee meeting, unless subject to §1530.2. This provision may be waived by the Board. The Chairman or the respective Committee Chair shall determine when and whether the appropriate situation requires a waiver of this rule.

1530.2 Any matter which any Board member or committee wishes the Board to consider for action at the meeting at which the matter is introduced or otherwise first brought to the attention of the Board shall be placed on the agenda for that meeting by filing with the Executive Director at least five (5) days before the meeting a brief description of the proposed action together with the appropriate supporting documentation. This requirement may be waived at the discretion of a majority of the Board.

History

SOURCE: Notice of Final Rulemaking published at 49 DCR 10808 (November 29, 2002).

7 DCMR § 1531 CONSENT AGENDA

1531.1 The Chairman may prepare, at his or her discretion, a Consent Agenda for each meeting that shall include matters which the Chairman believes will be approved by unanimous vote.

1531.2 Any Board member may strike any matter from the Consent Agenda at a meeting. This action shall require that the matter be considered as provided in §1514.3 The matters remaining on the Consent Agenda shall be considered by the Board at the meeting as provided in §1514.3(b).

1531.3 Approval of the Consent Agenda during the meeting shall include the unanimous approval of all matters included on the Consent Agenda.

History

SOURCE: Notice of Final Rulemaking published at 49 DCR 10808, 10809 (November 29, 2002).

7 DCMR § 1532 LENGTH OF MEETINGS

1532.1 Every Board meeting, except meetings with Investment Managers, shall be adjourned by the Chairman without motion four (4) hours after the meeting shall have been called to order; Provided, however, that upon motion, duly seconded, and approved by a majority of Board members present, a Board meeting may continue for a period longer than four (4) hours.

7 DCMR § 1533 FORM OF PROPOSED RULES

1533.3 Every proposed committee action or resolution shall be introduced in typed form and shall be signed by the Board member introducing the measure, and shall be in the form required for final adoption. A majority of the Board may waive this requirement.

History

SOURCE: Notice of Final Rulemaking published at 49 DCR 10809 (November 29, 2002).

7 DCMR § 1534 METHODS OF INTRODUCTION

1534.1 Proposed rules, regulations, and resolutions may be introduced by a Board member.

1534.2 Proposed rules, regulations, and resolutions may be introduced by any of the following methods:

(a) Reading the short title of the proposed rule, regulation, or resolution during the period of a meeting of the Board designated for introductions; or

(b) Filing the signed original of the proposed rule, regulation, or resolution in the office of the Executive Director during normal business hours.

1534.3 The Executive Director shall distribute to each Board member a copy of each measure introduced.

7 DCMR § 1535 READING OF INTRODUCTIONS IN MEETINGS

1535.1 During each meeting of the Board, during the period designated for introductions, the Executive Director shall read to the Board a list of the short titles of proposed rules, regulations, and resolutions that have been introduced since the preceding meeting.

1535.2 Proposed rules, regulations, and resolutions filed with and read by the Executive Director, as well as proposed rules, regulations, and resolutions read by Board members for introduction, shall not be debated or amended at this reading.

1535.3 An amendment to a pending proposed rule, regulation, or resolution shall be introduced in writing or, if moved orally by a Board member in a meeting of the Board or in a meeting of a committee to which the proposed rule, regulation, or resolution has been assigned, shall be reduced to writing and read by the Executive Director.

7 DCMR § 1536 NOTICE

1536.1 Pursuant to the District of Columbia Administrative Procedure Act at D.C. Code §2-501 et seq. (2001), the Board shall, at least thirty (30) days before the adoption of any rule or regulation that affects legal rights, duties, or privileges of specific parties other than members of the Board and other than an emergency measure, submit for public notice the intended action in the District of Columbia Register in order to afford interested persons an opportunity to submit data and views either orally or in writing as may be specified in the notice; Provided, that less than thirty (30) days notice may be given upon good cause found and published with the notice.

History

SOURCE: Notice of Final Rulemaking published at 49 DCR 10809 (November 29, 2002).

7 DCMR § 1537 RECONSIDERATION

1537.1 Any Board member recorded as having voted with the prevailing side on a question may move to reconsider the question at any time, except that in the case of a rule or regulation, reconsideration shall occur before the rule or regulation has become effective.

1537.2 Adoption of rules of organization and procedure and amendments thereto shall not be subject to reconsideration under this section. No motion to reconsider may be made with respect to a matter which has been the subject of a previous motion to reconsider, which motion was defeated.

1537.3 A motion to reconsider shall require the approval of a majority of the Board members present and voting.

7 DCMR § 1538 CITIZEN PETITIONS

1538.1 Any interested person petitioning the Board requesting the promulgation, amendment, or repeal of any rule, regulation, or resolution shall submit the petition, in a form prescribed by the Board, to the office of the Executive Director, who shall place it on the agenda for the next Board meeting and report this action to the person petitioning the Board.

7 DCMR § 1539 FILING AND PUBLICATION OF ADOPTED MEASURE

1539.1 Pursuant to the District of Columbia Administrative Procedure Act, D.C. Code §2-501 et seq. (2001), rules and regulations adopted by the Board that affect legal rights, duties, or privileges of specific parties shall be filed in the District of Columbia Office of Documents, and non-emergency rules and regulations shall not become effective, unless otherwise provided by law, until after they are published in the District of Columbia Register.

7 DCMR § 1540 RECORDS

1540.1 The Executive Director shall maintain accurate and up-to-date records of all official Board actions, including but not limited to proposed rules, regulations, and resolutions; amendments to rules, regulations, and resolutions; committee reports on rules, regulations, and resolutions, and amendments thereto; and rules, regulations, and resolutions adopted by the Board.

7 DCMR § 1541 HEARING

1541.1 The Chairman may call hearings to consider any proposed rule or regulation prior to the passage of the proposal rule or regulation.

1541.2 No speaker shall address a Board, meeting except through the Chairman who shall conduct the hearing.

1541.3 Each speaker shall confine his or her remarks to the question under discussion or debate, and shall avoid personal remarks.

1541.4 The Chairman conducting the hearing shall, with the assistance of the Sergeant-At-Arms, maintain order in the meeting room and if in the Chairman's opinion the removal of any member of the public is necessary for the maintenance of order, the Chairman may, after warning, order the Sergeant-At-Arms to remove any disorderly person.

History

SOURCE: Notice of Final Rulemaking published at 49 DCR 10810 (November 29, 2002).

7 DCMR § 1542 GENERAL NOTICE PROVISIONS

1542.1 Where not otherwise required by these rules or under the laws of the District of Columbia, notice of intended actions, hearings, and meetings may be given in any of the following ways:

1542.1 (a) Posting, in prominent places in District Buildings (buildings occupied by the Government of the District of Columbia) or other public buildings or public posting places;

(b) Publication in a newspaper or newspapers of general circulation;

(d) Mailing notices to an established mailing list of organizations and individuals as established and maintained by the Executive Director.

(e) Providing notices through other media;

(f) In any other manner the Board considers appropriate; or

(g) Any combination of the above.

History

SOURCE: Notice of Final Rulemaking published at 49 DCR 10810 (November 29, 2002).

7 DCMR § 1543 TIME

1543.1 Whenever appropriate, written notice of each Board meeting or hearing shall be provided not less than fifteen (15) days prior to the date of the meeting or hearing.

7 DCMR § 1544 GENERAL RULES OF CONSTRUCTION

1544.1 Words importing gender apply as appropriate to the other gender as well.

1544.2 Any edited contracts, agreement, rules\ and regulations, and legislation reflecting changes made thereto, except that documents submitted to the Office of Documents shall be in the form required by that Office.

History

SOURCE: Notice of Final Rulemaking published at 49 DCR 10811 (November 29, 2002).

7 DCMR § 1545 MATTERS NOT ADDRESSED BY THESE RULES

1545.1 Any matter not addressed in these rules shall be governed by Robert's Rules of Order, or, if not addressed in Robert's Rules of Order, by the decision of the Parliamentarian subject to the right of appeal by any Board member pursuant to §1519.

History

SOURCE: Notice of Final Rulemaking published at 49 DCR 10811 (November 29, 2002).

7 DCMR § 1546 SUSPENSION

1546.1 These rules or any part of these rules may be suspended during consideration of a specified matter upon motion to suspend these rules, duly seconded, and approved by two-thirds of the Board members present and voting; provided, however, that the following rules shall not be suspended:

(a) Requirements of notice, except as otherwise provided by the provisions of this Chapter, and quorum;

(b) Rules setting forth requirements of the District of Columbia Retirement Reform Act of 1979, Replacement Plan Act, or other applicable law; and

(b)[c] Rules, suspension of which would contravene a requirement of the District of Columbia Retirement Reform Act, Replacement Plan Act, or other applicable law.

History

SOURCE: Notice of Final Rulemaking published at 49 DCR 10811 (November 29, 2002).

7 DCMR § 1547 AMENDMENTS

1547.1 These rules shall be effective until superseded by rules adopted by the Board; provided, that any rule or rules may be amended by a vote of the majority of the Board; and provided further, that the amendment shall be proposed in writing, signed, circulated to all Board Members, and pursuant to the District of Columbia Administrative Procedure Act, D.C. Code §2-501 et seq., (2001) shall be published in the District of Columbia Register at least thirty (30) days prior to its consideration.

History

SOURCE: Notice of Final Rulemaking published at 49 DCR 10811 (November 29, 2002).

7 DCMR § 1548 CONFLICT OF INTEREST

1548.1 No former trustee and former staff shall knowingly act, for a period of two (2) years following the last day of a trustee's term or in the case of the Executive Director and General Counsel two years after their employment termination date, as agent or attorney for, or otherwise represent any other person or entity in any formal or informal appearance before the Board, or make any oral or written communication on behalf of any other person or entity with the intent to influence the Board in connection with any particular Board matter involving a specific party in which matter the former trustee or former staff member participated personally and substantially as a trustee or staff member.

1548.2 No former trustee and former staff shall, within two years after the termination of their service to the Board, knowingly act as agent or attorney for, or otherwise represent any other person or entity in any formal or informal appearance before the Board or make any oral or written communication on behalf of the Board or make with the intent to influence the Board in connection with any particular Board matter involving a specific party, if such matter was actually pending before the Board or under the staff member's official responsibility within a period of one year prior to the termination of the trustee's term or staff member's termination of responsibility

1548.3 No former trustee, Executive Director, or the General Counsel of the Board, for a period of two years following the last day of a trustee's term or in the case of the Executive Director and General Counsel two years after their employment termination date, shall knowingly act as agent or attorney for, or otherwise represent anyone in any formal or informal appearance before, or make any written or oral communication on behalf of anyone with the intent to influence the Board or any of its trustees, or employees in connection with any particular Board matter, whether or not involving a specific party, which is pending before the Board in which it has a direct and substantial interest.

1548.4 No former trustee, Executive Director, or the General Counsel of the Board, for a period of two years following the last day of a trustee's term or in the case of the Executive Director and General Counsel, one year after their employment termination date, shall knowingly represent or aid counsel, advise, consult, or assist in representing any other person by personal presence at any formal or informal appearance before the Board in connection with any particular Board matter involving a specific party in which matter the trustee, Executive Director or General Counsel had any degree of personal involvement.

1548.5 On receipt of information regarding a possible violation of this section and after a determination by the Board that such information appears substantiated, the Board may refer the matter to outside counsel for an independent determination of the violation. If Counsel finds that a violation has in fact occurred, the Board may:

(a) prohibit the individual, and the firm thereof, from appearing before the Board again; and/or

(b) take other actions consistent within the Board's delegated authorities and the laws of the District of Columbia and relevant Federal laws; and

History

SOURCE: Notice of Final Rulemaking published at 49 DCR 10811 10812 (November 29, 2002).

7 DCMR § 1599 DEFINITIONS

1599.1

“Board” or “Board of Trustees” means the District of Columbia Retirement Board established by Section 121(a) of the Act (D.C. Official Code § 1-711(b)(1)(A)).

“Chairman” means the chairman or chairperson, or his or her designee, of the District of Columbia Retirement Board (“DCRB”).

“Day” means a calendar day unless expressly stated otherwise. Any day on which a submission is due or other action occurs must be a day on which the District of Columbia Government is open for regularly scheduled business.

“Election cycle” means the timeframe during which an election of a trustee or trustees is conducted. Except in the event of a special election, or where extenuating circumstances result in a delay, an election cycle shall begin on August 1st of any year in which a qualified voter position is eligible for election to the Board.

“Election official” means the person or entity appointed by the Board to undertake the activities outlined in these Rules. The election official must be independent, experienced and qualified to conduct elections and may be any one, or combination, of the following:

An officer or employee of the Board;

An officer, employee, or agency of District of Columbia Government; or

An individual, partnership, firm, or corporation.

A qualified voter of any category may not be an election official. An election official will be considered qualified and experienced if the election official has successfully performed independent electoral services of, at least, a similar like, kind and volume as the services described in these Rules.

“Eligible candidate” means a qualified voter who has submitted valid Statements of Candidacy and Qualification and meets all of the criteria to be eligible for election to the Board as defined under these Rules.

“Executive Director” means the Executive Director, or his or her designee, of the District of Columbia Retirement Board.

“Qualified voter” means an active or retired member of the Retirement Plans as reflected in the records of the applicable personnel office, payroll office, or DCRB, as the benefits administrator of the Retirement Plans, at the start of an election cycle.

A qualified voter must be:

An “active firefighter” who is a sworn member or officer of the District of Columbia Fire and Emergency Medical Services Department (“FEMS”);

A “retired firefighter” who has retired from FEMS under the provisions of the District of Columbia Police Officers and Firefighters’ Retirement Plan (“Police Officers & Firefighters’ Plan”);

An “active police officer” who is a sworn member or officer of the District of Columbia Metropolitan Police Department (“MPD”);

A “retired police officer” who has retired from MPD under the provisions of the Police Officers & Firefighters’ Plan;

An “active teacher” who is an employee of District of Columbia Public Schools (“DCPS”) in a salary class position ET 1-15 or an employee of a District of Columbia public charter school who is an active member of the District of Columbia Teachers’ Retirement Plan (“Teachers’ Plan”); or

A “retired teacher” who has retired from DCPS or a District of Columbia public charter school under the provisions of the Teachers’ Plan.

“Reform Act” means the District of Columbia Retirement Reform Act, Pub. Law 96-122, Nov. 17, 1979, as amended (codified in D.C. Official Code §§ 1-701 et seq.).

“Replacement Plan Act” means the Police Officers, Fire Fighters, and Teachers Retirement Benefit Replacement Plan Act of 1998 (D.C. Official Code §§ 1-901.01 et seq.).

“Retirement Plans” means the following:

District of Columbia Police Officers and Firefighters’ Retirement Plan (“Police Officers & Firefighters’ Plan”), which includes the benefits established under the Replacement Plan Act that applies to service accrued after June 30, 1997 (D.C. Official Code §§ 5-701 et seq.) and the benefits in place under Title XI of the Balanced Budget Act of 1997, Pub. Law 105-33, Aug. 5, 1997 (codified in D.C. Official Code §§ 1-801.01 et seq.), that apply to service accrued on or before June 30, 1997 (former D.C. Official Code §§ 4-601 et seq.).

District of Columbia Teachers’ Retirement Plan (“Teachers’ Plan”), which includes the benefits established under the Replacement Plan Act that applies to service accrued after June 30, 1997 (D.C. Official Code §§ 38-2021.01 et seq.) and the benefits in place under Title XI of the Balanced Budget Act of 1997, Pub. Law 105-33, Aug. 5, 1997 (codified in D.C. Official Code §§ 1-801.01 et seq.) that apply to service accrued on or before June 30, 1997 (former D.C. Official Code §§ 31-1221 et seq.).

History

SOURCE: Final Rulemaking published at 32 DCR 5111 (September 6, 1985); as amended by Final Rulemaking published at 49 DCR 10792 (November 29, 2002); as amended by Final Rulemaking published at 63 DCR 6146 (April 22, 2016); as corrected by Errata Notice published at 65 DCR 7562 (July 20, 2018). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 1599

7-17 DISTRICT OF COLUMBIA RETIREMENT BOARD BENEFITS RULES

7 DCMR § 1700 PURPOSE AND GOVERNANCE

1700.1 In accordance with Section 121(a) of the District of Columbia Retirement Reform Act, as amended, Public Law 96-122 (codified at D.C. Official Code § 1-711(a) (2011 Repl.)), the District of Columbia Retirement Board (DCRB) has exclusive authority and discretion to manage and control the District of Columbia Police Officers and Fire Fighters’ Retirement Fund (Police and Fire Retirement Fund) and the District of Columbia Teachers’ Retirement Fund (Teachers’ Retirement Fund) and to implement and administer the retirement program for the District of Columbia police officers, firefighters and teachers. DCRB is also authorized to issue rules for the management and administration of the retirement program.

History

SOURCE: Final Rulemaking published at 60 DCR 1790 (February 15, 2013).

7 DCMR § 1701 ANNUAL INCOME REVIEW

1701.1 Annual Income Review for Teacher Disability Annuitants. Any teacher disability annuitant who retired under D.C. Official Code § 38-2021.04(a) and who is under the eligibility requirements for voluntary retirement as defined in D.C. Official Code § 38-2021.03 must file annually with DCRB by May 15th a notarized statement of employment and earnings and any additional information as requested by DCRB to verify employment income beginning for the first calendar year after retirement up to and including the last calendar year in which the annuitant is under the eligibility requirements for voluntary retirement as of December 31st.

1701.2 Annual Income Review for Police Officer and Firefighter Disability Annuitants Under Age 50. Any police officer or firefighter annuitant who was hired on or after February 15, 1980, retired under D.C. Official Code § 5-709 or § 5-710, and who is under age fifty (50), must file annually with DCRB by May 15th a notarized statement of employment and earnings and any additional information as requested by DCRB to verify employment income beginning for the first calendar year after retirement up to and including the last calendar year in which the annuitant is under age fifty (50) as of December 31st.

1701.3 Notarized Annual Earnings Statement. DCRB will notify annuitants in March of each calendar year if they are required to file an annual income report, what they must file, when they must file, and the forfeiture of annuity payments for failure to file. Information required to be filed may include, but is not limited to, tax returns, Forms W-2 and 1099, proof of non-filing of a tax return or extension of time to file a tax return, Form 4506-T Request for Transcript of Tax Return, or Form 1040 Schedule C or C-EZ.

1701.4 Due Process Rights. DCRB will determine continued entitlement to the disability annuity on the basis of the annual income review. Prior to any annuity termination, reduction or offset, DCRB will inform the annuitant of its decision in writing and the annuitant’s due process rights in accordance with D.C. Official Code § 1-751 (2011 Repl.).

1701.5 Restoration to Earning Capacity for Teacher Disability Annuitants and Annuity Termination.

(a) If a teacher disability annuitant who is subject to the annual income review in § 1701.1 has earned income from wages or self-employment or both during that calendar year equal to at least 80 percent of the current pay rate for the position occupied immediately before retirement, the annuitant’s earning capacity is restored. DCRB will terminate the disability annuity on January 1 of the following calendar year in which earning capacity was restored. The annuitant must return any overpayments to the Teachers’ Retirement Fund. DCRB may recoup overpayments by offsetting any reinstated annuity or other annuity entitlement.

(b) A terminated disability annuity will be reinstated at the same rate in effect when it was terminated on January 1 of any year following a calendar year during which an annuitant’s earning capacity falls below the 80 percent earnings limit, or sooner as DCRB determines administratively practicable, if the annuitant has not reached voluntary retirement age and has not recovered from his/her disability and has not been reappointed to a position that is equal or similar to the one occupied at retirement.

(c) An annuitant who has not reached voluntary retirement age may file a request for reinstatement of a terminated disability annuity, as instructed by DCRB, any time after one full year elapses during which his or her earning capacity falls below the 80 percent earnings limit.

(d) An annuitant whose disability annuity has been terminated and not restored prior to reaching voluntary retirement age may request a deferred retirement annuity or a refund of any remaining employee contributions. A deferred retirement annuity election or refund of employee contributions bars any restoration of a terminated disability annuity.

1701.6 Restoration to Earning Capacity for Police Officer and Firefighter Disability Annuitants Under Age 50 and Annuity Termination.

(a) If, in any calendar year after the annuitant’s year of retirement, a police officer or firefighter disability annuitant who is subject to the annual income review in § 1701.2, has earned income from wages or self-employment or both equal to at least 80 percent of the current compensation rate for the position occupied immediately before retirement, the annuitant's earning capacity is restored. DCRB will stop the disability annuity payment forty-five (45) days from the date of the written determination that earning capacity has been restored. The annuitant must return any overpayments to the Police and Fire Retirement Fund. DCRB may recoup overpayments by offsetting any reinstated annuity or other annuity entitlement.

(b) A terminated disability annuity will be reinstated on January 1 of any year following a calendar year during which an annuitant’s earning capacity falls below the 80 percent earnings limit if the annuitant is under age 50 and has not recovered from his/her disability and has not been reemployed in the department from which he/she retired at the same or equivalent grade or rank held at retirement.

(c) An annuitant who is under age 50 may also file a request for reinstatement of a terminated disability annuity, as instructed by DCRB, any time after one full year elapses during which his or her earning capacity falls below the 80 percent earnings limit.

(d) [REPEALED].

1701.7 Annuity Reduction for Police Officer and Firefighter Disability Annuitants Under Age 50.

(a) If DCRB determines that a police officer or firefighter disability annuitant who is subject to the annual income review in § 1701.2 has income in any calendar year after the annuitant’s year of retirement from wages or self-employment or both during that calendar year in excess of the difference between 70 percent of the earnings limit and the disability annuity, the annuitant’s disability annuity will be reduced by $.50 for each $1 of income received in excess of the difference during that calendar year.

(b) If income from wages or self-employment or both during that calendar year is in excess of the difference between 100 percent of the earnings limit and the disability annuity, the disability annuity will be further reduced by $.20 for each $1 of income received in excess of the difference during that calendar year.

(c) Reductions will begin after the end of the calendar year under review as soon as administratively practicable as determined by DCRB and will be prorated equally over twelve (12) consecutive months. The annuitant must return any overpayments to the Police and Fire Retirement Fund. DCRB may recoup overpayments by offsetting the reduced or reinstated annuity or other annuity entitlement.

(d) For purposes of this § 1701.7, the earnings limit is the greater of:

(A) the current salary of the position occupied immediately before retirement, or

(B) the current entry salary for active members divided by .70.

(e) A reduced annuity will be reinstated in whole or in part, as determined by DCRB, as soon as administratively practicable if the annuitant’s income from wages or self-employment or both is less than the earnings limit for any full calendar year and the annuitant is under age 50. A reduced annuity that is not reinstated in whole or in part prior to the annuitant reaching age 50 will continue to be paid at its reduced rate.

(f) An annuitant who is under age 50 may file a request for reinstatement of a reduced annuity, as instructed by DCRB, any time after one full year elapses during which his or her earned income falls below the earnings limit in § 1701.7(d).

(g) Any annuity reduction under this § 1701.7 may be waived by DCRB, if it determines, in its discretion, a waiver is reasonably practicable and the annuitant is without fault. Principles of equity and good conscience will be considered. An annuitant may request a waiver as instructed by DCRB.

1701.8 Current Rate of Pay for the Position Occupied Immediately Before Retirement.

(a) A disability annuitant’s earned income for a calendar year is compared to the gross annual rate of basic pay in effect on December 31st of that year for the position occupied immediately before retirement. The earned income for disability annuitants is based on the rate for the grade and step which reflects the total amount of basic pay (both the grade and step and any additional basic pay such as longevity and technical pay) in effect on the date of retirement.

(b) Income. The total amount of income from all sources is used to determine earning capacity (see definition of earned income in § 32(c)(2) of the Internal Revenue Code). This includes income received as gross wages from employers, net earnings from self-employment, and deferred income that is earned in a calendar year. In determining an annuitant's income for a calendar year, the following apply:

Income is from two sources: wages and self-employment. All income that is subject to Federal employment taxes (i.e., Social Security or Medicare taxes) or self-employment taxes is earned income.

Only income earned from personal work efforts or services is considered in determining earning capacity. All forms of non-work-related unearned income are excluded (e.g., pensions, inheritances, investment interest/dividends not related to self-employment).

For determining annual income from wages or self-employment or both, income is earned in the calendar year the annuitant actually renders the personal work effort or service and either actually or constructively receives the remuneration.

Income includes any District of Columbia salary offset amount.

Income earned by a spouse is not included.

Wages. This term means the gross amount of all remuneration for services performed by an employee for his or her employer before any deductions or withholdings.

(d) Self-Employment Income.

(1) This term means remuneration that is received as an independent contractor, either as

a sole proprietor;

a professional in one's own practice; or

a member of a partnership or corporation and regardless of whether the business entity is operated for profit.

(2) “Net earnings” from self-employment means gross revenue of the business from all sources before any other deductions or withholdings, minus

allowable business expenses;

any job-connected disability expenses; and

any return from investment allowance.

History

SOURCE: Final Rulemaking published at 60 DCR 1790 (February 15, 2013); as amended by Final Rulemaking published at 63 DCR 3743 (March 11, 2016). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 1701

7-18 DISTRICT OF COLUMBIA RETIREMENT BOARD CLASSIFICATION AND COMPENSATION PROGRAM REGULATIONS

7 DCMR § 1800 ESTABLISHMENT OF CLASSIFICATION AND COMPENSATION POLICY

1800.1 Authority to establish a new classification and compensation system for staff appointed by the District of Columbia Retirement Board ("Retirement Board") is set forth in Title IX, section 902(d) of the Service Improvement and Fiscal Year 2000 Budget Support Act of 1999, D.C. Law 13-38 (the "Retirement Board Amendment Act of 1999"), and the District of Columbia Retirement Reform Act, as amended (the "Reform Act"), effective November 17, 1979 (Pub. L. 96-122, 93 Stat. 866). D.C. Code § 1-711(e)

1800.2 Authority to convert Retirement Board staff attorneys who meet the qualifications for entry into the Legal Service and the Senior Executive Attorney Service, to implement a separate competitive salary structure, and to establish a performance management system for attorneys in the Legal Service and the Senior Executive Attorney Service employed by the Retirement Board is set forth in the Legal Service Establishment Act ("Legal Service Act") of 1999, (D.C. Code § 1-609.51 et. seq.).

1800.3 The Retirement Board's principal mission, as derived from the findings and purpose section of the Reform Act (D.C. Code' 1-701), is to manage the assets of the D.C. Police Officers' and Fire Fighters' Retirement Fund, and the D.C. Teachers' Retirement Fund, (collectively the "Funds") on an actuarially sound basis in order to provide proper financing for the benefits to which the District's retired police officers, fire fighters and teachers are entitled.

1800.4 Pursuant to authority cited in sections 1800.1 and 1800.2 above, the Retirement Board hereby establishes policy and program regulations for a classification and compensation system for staff appointed by the Retirement Board, a separate competitive salary structure, and a performance management system for attorneys eligible for entry in the Legal Service and Senior Executive Attorney Service employed by the Retirement Board, as required by the Legal Service Act.

1800.5 The Retirement Board reserves the right to amend any part of this classification and compensation policy and program regulation based upon, without limitation, changes in fiscal condition, changes in operating requirements, and changes in applicable law.

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9894, 9895 (December 15, 2000).

7 DCMR § 1801 CLASSIFICATION POLICY

1801.1 Market pricing and job ranking are the methods implemented by the Retirement Board for establishing job classification, which involves gathering market data for comparable jobs in relevant markets and assigning jobs to a classification structure based on their market value.

1801.2 Jobs for which there is no market data available will be assigned to the classification structure based on an overall evaluation of the worth of the job, compared to other jobs assigned to the classification structure based on market data.

1801.3 Specially trained and experienced professionals who: (i) are skilled at analyzing market data, (ii) understand relevant job requirements, (iii) are capable of defending decisions made about job classification with appropriate documentary evidence, and (iv) have no direct or indirect financial interest that conflicts with the fair, impartial, and objective performance of duties involving job classification shall be retained to assist the Retirement Board in the job classification and reclassification process.

1801.4 To be responsive to changing job requirements and the needs of a highly specialized staff, the Retirement Board shall eliminate obsolete job titles and update position descriptions as needed.

1801.5 The position description format shall be designed to eliminate any former bias against qualified individuals with or without physical challenges by disclosing essential functions and working conditions.

1801.6 The position description format shall include the following components:

(a) General summary of nature and purpose of job;

(b) Primary duties and responsibilities (not intended to be exhaustive);

(d) Reporting relationships and internal/external contacts; and

(e) Working (physical) environment.

1801.7 The Retirement Board may use an automated system developed for the District government to assist individual staff in supervisory positions when generating and updating position descriptions.

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9895, 9896 (December 15, 2000).

7 DCMR § 1802 COMPENSATION POLICY

1802.1 The Retirement Board shall maintain a compensation policy designed to attract, motivate, and retain talented employees with highly specialized skills in order to successfully execute its statutory obligations, while concomitantly assuring to the fullest extent possible, fair treatment of applicants and employees, and compliance with Federal fair employment laws which prohibit employment practices that discriminate on the basis of age, race, color, gender, national origin, religion, and disability.

1802.2 The Retirement Board shall implement a multi-grade salary structure with a minimum, midpoint, and maximum ("min-mid-max") salary range, and variable progression through each respective grade based on performance.

1802.3 The minimum of the salary range shall be the rate paid to an employee who is assigned to a position for which he/she possesses entry-level qualifications and who is expected to be able to perform basic duties and responsibilities after normal training.

1802.4 The midpoint shall be the middle point of the salary range which shall be appropriate for an experienced and fully qualified employee whose performance fulfills all requirements of the position.

1802.5 The maximum of the salary range shall be the highest salary level for an employee: (i) whose performance consistently exceeds most position requirements, (ii) with critical skills, or (iii) with long satisfactory service.

1802.6 The min-mid-max salary structure will reflect salary range spreads (the distance between the minimum and the maximum of the salary range) which may vary with grade level.

1802.7 A midpoint-to-midpoint differential (the percentage distance between the midpoint of one grade and the midpoint of the adjacent grade) of 10 to 15 percent shall be maintained to the extent practicable, to allow an appropriate progression from one grade to another.

1802.8 The following objectives shall be used as the basis to guide compensation decisions:

(a) To attract, motivate, and retain employees who possess the knowledge, skill, and ability which contributes to achievement of the Retirement Board's mission and compliance with its fiduciary obligations;

(b) To ensure a program which treats all employees in a fair and equitable manner in relation to both the external market as well as the internal hierarchy; and

(c) To reward employees for contributions and performance which contributes to achievement of the Retirement Board's overall mission and objectives.

1802.9 For purposes of compliance with separate competitive salary requirements under the Legal Service Act:

(a) Compensation for Senior Executive Attorneys shall be competitive with that provided by the Federal government Senior Executive Service Salary Table for attorneys in the Washington metropolitan area having comparable duties, responsibilities, qualifications and experience; and

(b) Compensation for other Legal Service Attorneys shall be competitive with that provided by the Federal government General Schedule for attorneys in the Washington metropolitan area having comparable duties, responsibilities, qualifications, and experience.

1802.10 Total compensation shall be established and maintained (consistent with laws of the District of Columbia) at levels sufficient to enable the Retirement Board to compete effectively for talented employees in all identified relevant markets.

1802.11 Salary structures may be adjusted on an annual basis to ensure ongoing competitiveness of salary ranges.

1802.12 In addition to salary adjustments based on competitiveness, individual base salaries may be adjusted based on merit increases.

1802.13 Rates of pay within and, to the maximum extent practical, across various occupations and categories shall be equal for substantially equal work. Differences in pay among individual employees will reflect differences in the nature and character of work performed and the skill, competency, experience, performance and results associated with each individual employee.

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9896, 9898 (December 15, 2000).

7 DCMR § 1803 SALARY ADMINISTRATION

1803.1 The Retirement Board shall determine, by majority vote, the job responsibilities (position description) and the level of compensation for the Executive Director.

1803.2 The Retirement Board shall delegate such authority deemed appropriate to the Executive Director to make compensation decisions for all other staff. Compensation decisions for staff shall be made consistent with applicable laws of the District of Columbia (including the Legal Service Act) and, classification and compensation program regulations and policy approved by the Retirement Board.

1803.3 The Executive Director shall develop and administer a job evaluation program which shall include regular review and reevaluation of position descriptions. Position descriptions shall be made available to Retirement Board members, staff, and to others upon request.

1803.4 The Executive Director shall undertake at a minimum, a bi-annual review of compensation surveys of employees in relevant markets and/or organizations having similar jobs in order to recommend adjustments in the salary structure to ensure ongoing competitiveness of salary ranges.

1803.5 The bi-annual review of compensation surveys shall be conducted by specially trained and experienced professionals who have: (i) experience in market data analysis, (ii) a good working knowledge of the jobs involved, (iii) an obligation to justify all compensation decisions with documentary evidence and (iv) no direct or indirect financial interest that conflicts with the fair, impartial, and objective performance of duties required.

1803.6 If analysis from the bi-annual review of compensation surveys provides evidence of a change in the salaries paid in relevant markets for similar work, salary ranges for Retirement Board employees shall be adjusted accordingly. Such changes shall be implemented consistent with the compensation objectives set forth at section 1802.8.

1803.7 The Executive Director shall recommend for Retirement Board approval any adjustment to the salary structure.

1803.8 The Executive Director shall manage a continuing review of staff compensation to ensure that each staff position is evaluated and assigned to a competitive and equitable salary range that equitably reflects each position's responsibilities and performance requirements.

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9898, 9899 (December 15, 2000).

7 DCMR § 1804 MERIT, INCENTIVE AND OVERTIME PAY

1804.1 Merit increases (increases in base salary) shall be tied to performance ratings.

1804.2 General equity standards and the following principles shall guide merit increases:

(a) Motivating and rewarding excellence and tangible results;

(b) Wherever possible, rewards shall be linked to measurable individual, departmental, or organizational objectives; and

(c) To the extent practicable, the performance management program implemented by the Retirement Board shall serve as the primary system for measuring performance and providing feedback to employees;

1804.3 Annual salary adjustments shall be governed by a merit budget which shall be determined annually. The merit budget shall be based on competitive practices in the marketplace, the Retirement Board's current competitive position, and the availability of funds appropriated for such purpose.

1804.4 Incentive pay (monetary payments) shall be used to reward employees for strong performance and goal attainment.

1804.5 Individual or work group incentive compensation adjustments may be authorized for outstanding performance, or as recognition for suggestions, work process improvements, or operational savings.

1804.6 The incentive compensation program shall reward top performers for achievement of goals rather than development of competencies and shall consist of monetary payments and non-monetary awards, but shall not result in temporary or permanent adjustments in the employee's base salary.

1804.7 Overtime shall be governed by the Fair Labor Standards Act ("FLSA") of 1938 (29 U.S.C. § 201, et seq.) which requires that all employees covered by minimum wage and overtime pay provisions ("non-exempt" employees) be paid at a rate of one-and-one-half times the employees regular rate of pay for each hour worked in excess of 40 hours in a workweek.

1804.8 Compensatory time off in lieu of monetary overtime compensation may be authorized upon request by non-exempt employees. Compensatory time for non-exempt employees shall be granted at a rate of one-and-one-half hours for each hour worked for which overtime compensation is required under FLSA (29 U.S.C. § 207).

1804.9 Compensatory time for FLSA exempt employees may be authorized at a rate not to exceed one times the hours accrued for compensation purposes in excess of 40 hours per week at the sole discretion of the Retirement Board.

1804.10 Exempt and non-exempt employees shall receive compensation for compensatory time earned but not taken either; (i) within one year (12 months) from the time such compensatory time is earned or, (ii) at the time of separation from the service of the Board, whichever occurs first.

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9899, 9900 (December 15, 2000).

7 DCMR § 1805 BENEFITS

1805.1 In addition to cash compensation, the Retirement Board may provide a benefits package (to the extent allowed by District of Columbia law) which is competitive in the labor market and provides employees with security against unexpected events and lifestyle protection.

1805.2 In lieu of benefits that the Retirement Board does not offer, the Retirement Board may provide cash compensation, where possible, to be competitive with relevant markets offering more robust benefit packages.

1805.3 In addition to the District of Columbia Government retirement plans that employees of the Retirement Board participate in or may participate in, the Retirement Board may provide a supplemental 401(a) defined contribution retirement plan for eligible employees described as follows:

(a) The Retirement Board may, at its discretion, make nonelective contributions to the plan on behalf of an eligible employee either as a percentage of the employee’s compensation or as a flat dollar amount which percentage or amount need not be uniform among all participating eligible employees;

(b) Employees may make voluntary after-tax contributions to the plan;

(c) The contributions shall be subject to the limitation on contributions as set forth in Section 415 of the Internal Revenue Code (“Code”), as amended, and all applicable rules and regulations issued thereunder;

(d) Those employees eligible to participate in the plan and the date such employees are be eligible to participate in the plan shall be determined by the Retirement Board and such provisions for eligibility shall be set forth in the plan document;

(e) Participating employees shall vest in contributions in accordance with a schedule set forth in the plan document;

(f) The plan document shall contain the official summary description of the plan and shall include the terms, conditions and provisions of the plan;

(g) The plan shall be a governmental plan as defined in Section 414(d) of the Code and shall be tax qualified under Section 401(a) of the Code.

1805.4 The Retirement Board may fund and provide a short-term disability benefit plan and a long-term disability benefit plan (the “plans”) for all of the Retirement Board’s eligible employees. These plans are in addition to the short-term and long-term disability insurance programs of the District of Columbia Government in which Board employees may voluntarily participate. The terms of the plans are as follows:

(a) The plans shall cover all eligible employees as determined by the Board and set forth in the respective plan document;

(b) The Board shall pay all premiums on behalf of eligible employees;

(c) The plans’ documents shall contain the official summary description of the respective plans and shall include the terms, conditions and provisions of the plans.

1805.5 The Retirement Board may provide a nonqualified deferred compensation plan under Section 457(f) and 409A of the Internal Revenue Code (Code) for key management employees, described as follows:

(a) The Retirement Board shall determine those employees eligible to participate in the plan.

(b) The plan document shall include the terms, conditions, and provisions of the plan, including the terms of any substantial risk of forfeiture for purposes of Section 457(f) of the Code.

(c) The plan shall be a nonqualified deferred compensation plan as defined in Section 457(f) of the Code and shall comply with Section 409A of the Code.

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9900 (December 15, 2000); as amended by Final Rulemaking published at 57 DCR 130 (January 1, 2010); as amended by Final Rulemaking published at 59 DCR 10874 (September 14, 2012); as amended by Final Rulemaking published at 59 DCR 013364 (November 23, 2012).

7 DCMR § 1806 PERFORMANCE MANAGEMENT PROGRAM FOR STAFF/ATTORNEYS

1806.1 Staff appointed by the Retirement Board, except for attorneys, shall be subject to the performance management program implemented by the District government.

1806.2 Retirement Board staff attorneys who meet the qualifications for entry into the Legal Service and the Senior Executive Attorney Service (collectively "Retirement Board attorneys") pursuant to the Legal Service Act (D.C. Code § 1-609.57), shall be subject to the performance management system described in sections 1806.3 through 1806.8.

1806.3 The following 5-point performance rating scale shall be used as a tool for evaluating Retirement Board attorneys:

(a) 5 - Significantly Exceeds Expectations. Performance consistently and significantly exceeds expectations. Exceptional accomplishments obvious to the supervisor;

(b) 4 -Exceeds Expectations. Performance frequently exceeds expectations in some areas and meets expectations in all others;

(d) 2 - Meets Some Expectations. Performance meets most expectations but requires further development in one or more areas; and

(e) 1 - Does Not Meet Expectations. Performance consistently does not meet expectations. Formal action should be taken to ensure improved performance.

1806.4 To the extent practicable, individual performance plans shall be prepared by the respective supervisor for each attorney to develop skills and shall be based on updated job descriptions to set expectations consistent with job duties, responsibilities and Retirement Board goals.

1806.5 Performance shall be observed by the supervisor with constructive feedback year-round with a mid-year supervisory evaluation.

1806.6 A formal end-of-year performance rating shall form the basis for merit increases, with written comments from supervisor required to support ratings.

1806.7 Performance improvement plans shall be prepared by the supervisor for attorneys with deficient ratings.

1806.8 The Executive Director shall review all individual performance plans, performance appraisals, and performance improvement plans.

1806.9 Performance appraisal for the Executive Director shall be conducted by the Operations Committee (the "Committee"), which shall provide a mid-year evaluation, and a formal end-of-year performance rating. The end-of-year performance rating shall form the basis for a merit increase and/or incentive pay. Written comments from the Committee shall be required to support performance ratings for the Executive Director. Recommendations by the Committee must be approved by a majority vote (of the members present and voting) before becoming an official action of the Retirement Board.

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9901-02 (December 15, 2000).

7 DCMR § 1807 SCOPE AND APPLICABILITY OF THE RULE

1807.1 This chapter shall provide the rules of the classification and compensation system for staff including Retirement Board attorneys.

1807.2 The Retirement Board has approved the application of this rule effective as of October 8, 2000.

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1808 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1809 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1810 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1811 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1812 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1813 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1814 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1815 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1816 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1817 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1818 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1819 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1820 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1821 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1822 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1823 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1824 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1825 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1826 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1827 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1828 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1829 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1830 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1831 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1832 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1833 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1834 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1835 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1836 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1837 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1838 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1839 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1840 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1841 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1842 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1843 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1844 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1845 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1846 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1847 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1848 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1849 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1850 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1851 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1852 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1853 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1854 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1855 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1856 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1857 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1858 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1859 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1860 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1861 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1862 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1863 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1864 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1865 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1866 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1867 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1868 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1869 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1870 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1871 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1872 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1873 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1874 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1875 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1876 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1877 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1878 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1879 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1880 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1881 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1882 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1883 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1884 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1885 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1886 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1887 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1888 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1889 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1890 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1891 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1892 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1893 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1894 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1895 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1896 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1897 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1898 Reserved

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902 (December 15, 2000).

7 DCMR § 1899 DEFINITIONS

1899.1 Terms and phrases used in this chapter shall have the meaning set forth in the Reform Act, the Legal Service Act, and as set forth below unless the text or context of the particular section, subsection, or paragraph provides otherwise.

Classification - shall mean the system by which job value is determined and a job hierarchy is developed.

Employee or staff - shall mean staff appointed by the Retirement Board pursuant to the Reform Act (D.C. Code § 1-711(g)(2)).

Executive Director - shall mean the chief operations officer appointed by the Retirement Board.

Midpoint-to-midpoint differential - shall mean the percentage distance between the midpoint of one grade and the midpoint of the adjacent grades.

Operations Committee - shall mean a standing committee of the Retirement Board described at 7 DCMR, Chapter 15.

Range spread - shall mean the distance from the minimum to the maximum of the salary range calculated as a percentage of the minimum.

Relevant markets - shall mean jobs or job families within comparable labor markets and geographic locations for purposes of comparison.

Retirement Funds - shall mean assets which comprise the "Retirement Fund for police officers and fire fighters" (D.C. Code § 1-782.1) and assets which comprise the "Retirement fund for teachers" (D.C. Code § 1-782.2).

Total compensation - shall mean the total value of base pay, incentive or bonus pay, and benefits.

History

SOURCE: Notice of Final Rulemaking published at 47 DCR 9902-03 (December 15, 2000).

7-19 DISTRICT OF COLUMBIA RETIREMENT BOARD INVESTMENT RULES

7 DCMR § 1900 PURPOSE AND GOVERNANCE

1900.1 In accordance with Section 121(a) of the District of Columbia Retirement Reform Act, as amended, Public Law 96-122 (codified at D.C. Official Code § 1-711(a) (2011 Repl.)), the District of Columbia Retirement Board (Board) has exclusive authority and discretion to manage and control the District of Columbia Police Officers and Fire Fighters’ Retirement Fund and the District of Columbia Teachers’ Retirement Fund (Funds) and to issue rules for the management and control of the Funds.

History

SOURCE: Final Rulemaking published at 59 DCR 013918 (November 30, 2012).

7 DCMR § 1901 PLAN ASSETS

1901.1 Individuals who exercise any discretionary authority or discretionary control regarding the management or disposition of plan assets or who provide investment advice for a fee (direct or indirect) with respect to plan assets may be deemed to be fiduciaries under § 102(20)(A) of the Reform Act (D.C. Official Code § 1-702(20)(A) (2011 Repl.)) unless an exception applies.

1901.2 This rule describes what constitutes plan assets with respect to the Funds' investment in another entity for purposes of the fiduciary duties imposed by the Reform Act. This rule is intended to be modeled after the U.S. Department of Labor’s (DOL) plan assets regulation, as amended (29 C.F.R. § 2510.3-101).

Generally, when the Funds invest in another entity, the Funds’ assets include its investment, but do not, solely by reason of such investment, include any of the underlying assets of the entity. However, in the case of the Funds' investment in an equity interest of an entity that is neither a publicly-offered security nor a security issued by an investment company registered under the Investment Company Act of 1940, its assets include both the equity interest and an undivided interest in each of the underlying assets of the entity, unless it is established that:

the entity is an operating company, or

equity participation in the entity by benefit plan investors and by the Funds is not significant.

Therefore, any person who exercises authority or control respecting the management or disposition of such underlying assets, and any person who provides investment advice with respect to such assets for a fee (direct or indirect), is a fiduciary of the Funds.

1901.3 Equity Interests and Publicly-Offered Securities.

(a) An “equity interest” means any interest in an entity other than an instrument that is treated as indebtedness under applicable law and which has no substantial equity features. A profits interest in a partnership, an undivided ownership interest in property and a beneficial interest in a trust are equity interests.

(b) A “publicly-offered security” is a security that is:

freely transferable,

(2) widely held (more than 100 holders unrelated to management and to each other), and

(3) registered under the Securities Exchange Act of 1934 (or scheduled to be registered subsequent to an initial public offering).

1901.4 Operating Company.

An “operating company” is an entity that is primarily engaged in the production or sale of a product or service other than the investment of capital, plus hybrid entities known as a “venture capital operating company” or a “real estate operating company.”

1901.5 Insignificant Equity Participation.

(a) Equity participation in an entity by benefit plan investors or by the Funds is “significant” on any date if, immediately after the most recent acquisition of any equity interest in the entity, 25 percent or more of the value of any class of equity interests in the entity is held by benefit plan investors or by the Funds. For this purpose, the value of any equity interests held by a person (other than a benefit plan investor) who has discretionary authority or control with respect to the assets of the entity or any person who provides investment advice for a fee (direct or indirect) with respect to such assets, or any affiliate of such a person, shall be disregarded.

(b) A “benefit plan investor” is any of the following:

any employee benefit plan (as defined in § 3(3) of ERISA)), that is subject to the provisions of Title I of ERISA;

any plan described in and covered by § 4975(e)(1) of the Internal Revenue Code; or

any entity whose underlying assets include plan assets by reason of, and to the extent of, benefit plan investors’ investment in the entity.

(c) An “affiliate” of a person includes any person, directly or indirectly, through one or more intermediaries, controlling, controlled by, or under common control with the person. For this purpose, “control”, with respect to a person other than an individual, means the power to exercise a controlling influence over the management or policies of such person.

1901.6 Joint Ownership.

For purposes of this rule, where the Funds jointly own property with others, or where the value of the Funds' equity interest in an entity relates solely to identified property of the entity, such property shall be treated as the sole property of a separate entity.

1901.7 Specific Rules Relating to Funds’ Investments.

Notwithstanding any other provision of this rule:

(a) Except where the entity is an investment company registered under the Investment Company Act of 1940, when the Funds acquire or hold an interest in any of the following entities its assets include its investment and an undivided interest in each of the underlying assets of the entity:

a group trust which is exempt from taxation under § 501(a) of the Internal Revenue Code pursuant to the principles of Rev. Rul. 81-100, 1981-1 C.B. 326;

a common or collective trust fund of a bank;

a separate account of an insurance company, other than a separate account that is maintained solely in connection with fixed contractual obligations of the insurance company under which the amounts payable, or credited, to the Funds and to any participant or beneficiary of the Funds (including an annuitant) are not affected in any manner by the investment performance of the separate account.

(b) When the Funds own all of the outstanding equity interests (other than director's qualifying shares) in an entity, its assets include those equity interests and all of the underlying assets of the entity.

1901.8 Governmental Mortgage Pools.

(a) Where the Funds acquire a guaranteed governmental mortgage pool certificate, the Funds’ assets include the certificate and all of its rights with respect to such certificate under applicable law, but do not, solely by reason of the Funds' holding of such certificate, include any of the mortgages underlying such certificate.

(b) A “guaranteed governmental mortgage pool certificate” is a certificate backed by, or evidencing an interest in, specified mortgages or participation interests therein and with respect to which interest and principal payable pursuant to the certificate is guaranteed by the United States or an agency or instrumentality thereof. This term includes a mortgage pool certificate with respect to which interest and principal payable pursuant to the certificate is guaranteed by:

the Government National Mortgage Association;

the Federal Home Loan Mortgage Corporation; or

the Federal National Mortgage Association.

History

SOURCE: Final Rulemaking published at 59 DCR 013918 (November 30, 2012).

7-20 OCCUPATIONAL SAFETY AND HEALTH PROGRAM

7 DCMR § 2000 APPLICABILITY

2000.1 These rules shall apply to all agencies.

7 DCMR § 2001 RESPONSIBILITY

2001.1 The head of each agency shall be responsible for complying with the Act and this Chapter.

2001.2 The Department of Employment Services shall be responsible for the administration of the District government's Occupational Safety and Health Program.

7 DCMR § 2002 ACCIDENT REPORTING AND RECORD KEEPING

2002.1 The Office of Occupational Safety and Health (hereinafter referred to as "Office") shall investigate and take prompt action in all accidents involving fatalities, serious injuries or expensive property damage, estimated at one thousand dollars ($1,000) or over.

2002.2 Each agency shall record all accidents and injuries which occur on the job.

2002.3 Each agency shall record and report all accidents involving fatalities, serious injuries or expensive property damage, estimated at one thousand dollars ($1,000) or over. All accidents shall be verbally reported to the Office immediately.

2002.4 A written report on a form prescribed by the Office shall be submitted within three (3) business days of each occurrence.

2002.5 Each agency shall submit the following safety progress reports to the office not later than the fifth (5th) day of each month:

(a) Summary of injuries report;

(b) Employee Safety Performance reports; and

2002.6 Each agency shall submit an annual report to the Office on prescribed forms not later than January 15th, of each year.

7 DCMR § 2003 SAFETY STANDARDS AND INSPECTION REQUIREMENTS

2003.1 Each agency shall be subject to safety standards and inspection requirements prescribed by the Office in compliance with the following standards and codes:

(a) D.C. Fire Code; Provided, that nothing in this subsection shall be construed as affecting the responsibility of the Fire Chief to enforce the D.C. Fire Code;

(b) D.C. Building Code (D.C. Law 2-18); D.C. Electrical Code (D.C. Law 2-19); and the D.C.

Plumbing Code (DCMR Title 13);

(d) General Industry Safety and Health Regulations, promulgated under §§6 and 8(g) of the Occupational Safety and Health Act of 1970 (84 Stat. 1590).

7 DCMR § 2004 SAFETY TRAINING

2004.1 The agency shall comply with safety training requirements as prescribed by the Department of Employment Services.

7 DCMR § 2005 FIRE SAFETY

2005.1 Each agency shall comply with the following fire safety program requirements:

(a) Development of fire evacuation plans for all city owned and leased facilites;

(b) Appointment and training of appropriate staff for fire evacuation programs;

(d) Conducting annual fire safety training; and

(e) Conducing bimonthly fire safety inspections.

7 DCMR § 2006 MOTOR VEHICLE SAFETY

2006.1 Each agency shall be responsible for the maintenance of a motor vehicle safety program which will include the following:

(a) Driver identification cards;

(b) Physical examinations;

(d) A preventive maintenance program to ensure that vehicles are in safe condition.

7 DCMR § 2007 SAFETY AWARDS REQUIREMENTS

2007.1 Each agency head shall ensure that employees who qualify for special recognition with regard to the matters covered in this chapter are either granted, or recommended for appropriate incentive awards.

2007.2 Each agency or office within an agency that qualifies for special recognition with regard to the safety program shall be appropriately recognized.

7 DCMR § 2008 COMPLIANCE

2008.1 The Department of Employment Services shall have the authority to do the following:

(a) To ensure compliance with the law, and these rules; and

(b) To initiate necessary corrective action through appropriate audits and inspections.

7 DCMR § 2009 PROTECTION OF EMPLOYEE RIGHTS

2009.1 Employees have a right, to the maximum extent possible, to a safe and healthful working environment.

2009.2 Any employee in exercising this right may, without fear of reprisal, report an unsafe or unhealthful working condition or practice which may lead to a subsequent investigation.

7 DCMR § 2099 DEFINITIONS

2099.1 When used in this Chapter, the following terms shall have the meaning ascribed:

Act - Title 20, D.C. Government Comprehensive Merit Personnel Act of 1978 (D.C. Law 2-139).

Agency - any District of Columbia Government agency and instrumentality thereof.

Office - the Office of Occupational Safety and Health, D.C. Department of Employment Services.

7-25 RULES OF PRACTICE AND PROCEDURE FOR THE POLICE AND FIREFIGHTERS RETIREMENT AND RELIEF BOARD

7 DCMR § 2500 RULES AND PROCEDURE; PURPOSE

2500.1 The purpose of this chapter is to establish rules and procedures for the efficient and uniform administration of retirement, disability, and annuity eligibility determinations pursuant to the Policemen and Firemen’s Retirement and Disability Act, approved September 1, 1916 (39 Stat. 718: D.C. Code § 5-701 et seq.) for eligible members and retired members of the District of Columbia Metropolitan Police Department, the District of Columbia Fire and Emergency Medical Services Department, the United States Park Police, the United States Secret Service Uniformed Division and the United States Secret Service.

History

SOURCE: Final Rulemaking published at 69 DCR 009515 (July 29, 2022). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 2500

7 DCMR § 2501 THE BOARD

2501.1 As provided by law, the Police and Firefighters’ Retirement and Relief Board shall be composed of the following members:

(a) One Board member and one or more alternate Board members appointed by the Mayor from each of the:

D.C. Department of Human Resources;

Office of the Attorney General;

Department of Health, all of whom shall be physicians;

Metropolitan Police Department; and

Fire and Emergency Medical Services Department.

In addition, the Board shall include the following Board members and their designated alternates, who are appointed by the Mayor for two (2) year appointments:

One Board member, and one or more alternates, each of whom shall be a physician who is not an officer or employee of the District of Columbia; and

One Board member, and one or more alternates, of any background who is not an officer or employee of the District of Columbia.

2501.2 In addition to the Board members and alternates to the Board designated by the Mayor, in all cases of retirement, disability, or other relief involving a member of the United States Secret Service Uniformed Division or the United States Secret Service, a Board member and alternate of the United States Secret Service Uniformed Division or the United States Secret Service, as designated by the Director of the United States Secret Service, as appropriate, shall sit as a member of the Board.

2501.3 The Board member appointed by the Mayor from the D.C. Department of Human Resources shall serve as the Chair of the Board, and the alternate Board member appointed by the Mayor from the D.C. Department of Human Resources shall serve as the Alternate Chair of the Board.

2501.4 In the absence of the Chair and Alternate Chair(s), the Board member or alternate appointed from the Office of the Attorney General shall serve as an Acting Chair.

2501.5 For any matter requiring the vote of the full Board, a quorum shall consist of any five (5) Board members or designated alternates, provided that one (1) of the five (5) present shall be the Chair, Alternate Chair, or Acting Chair.

2501.6 The Board shall hold hearings and Executive Session meetings on Thursdays or on any other day as scheduled by the Board.

2501.7 The Chair or the Board may --in their discretion, for good cause shown, and in the interest of justice or to prevent hardship -- waive any of the provisions of these rules in any proceeding.

History

SOURCE: Final Rulemaking published at 69 DCR 009515 (July 29, 2022). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 2501

7 DCMR § 2502 APPLICABILITY

2502.1 Unless otherwise provided, the rules set forth in this chapter are applicable to all survivor benefits eligibility, retirement, and disability proceedings before the Board.

2502.2 Nothing in these rules shall preclude the Board from issuing any orders the Board deems necessary to carry out its duties efficiently. However, in the case of a conflict between these rules and a Board order, these rules shall control.

2502.3 If no procedure is specifically prescribed by an order of the Board or these rules, the District of Columbia Superior Court Rules of Civil Procedure shall control, to the extent practicable.

History

SOURCE: Final Rulemaking published at 69 DCR 009515 (July 29, 2022). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 2502

7 DCMR § 2503 JURISDICTION

2503.1 The Board has jurisdiction to consider any of the following:

The retirement and related cases of members and retired members of the Metropolitan Police and Fire and Emergency Medical Services Departments, the United States Park Police, and those eligible members of the United States Secret Service;

Applications for the relief of survivors of members or retired members of these organizations; and

Applications for lump sum payment benefits provided in cases of performance-of-duty death.

2503.2 The Chair may decide routine applications for optional retirement benefits, survivor benefits, and procedural matters on the Board’s behalf without a vote of the full Board. However, benefits decisions relating to members and survivors of the United States Secret Service shall be made with the concurrence of a Board member or alternate Board member designated by the Director of the United States Secret Service.

History

SOURCE: Final Rulemaking published at 69 DCR 009515 (July 29, 2022). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 2503

7 DCMR § 2504 SERVICE OF PAPERS, METHODS, PROOF

2504.1 All written communications by parties pertaining to a particular case before the Board shall be filed with the Police and Firefighters’ Retirement and Relief Board through the D.C. Department of Human Resources at the agency’s address specified at https://dchr.dc.gov.

2504.2 Unless otherwise provided by statute or regulation, any written communication may be filed with the Board in-person, by mail, by email, by commercial carrier, or by any other additional means authorized by order of the Board.

In-person filing of a written communication with the Board is perfected by delivering the written communication during regular business hours to a D.C. Department of Human Resources employee in the Customer Service Center at the agency’s address as specified at https://dchr.dc.gov, who is authorized to accept service for the Board;

Mail or commercial courier filing of a written communication with the Board is perfected when the written communication is received by a D.C. Department of Human Resources at the agency’s address specified at http://dchr.dc.gov;

Filing by email:

The filing of a written communication by email is perfected when the written communication is received by the Board’s designated email account in accordance with this subsection;

Emails received during normal business hours shall be deemed received on the date and at the time actually received. Otherwise, emails shall be deemed received at 9 a.m. on the following business day;

All emails must identify the party making the transmission, list the mailing address, telephone number, email address of such party, and reference the docket number to which the written communication relates; and

The Board may require a party to file a written original of any document submitted by email. The subsequent submission of an original shall not affect the effective filing date.

2504.3 All written communications filed with the Board pertaining to a particular case shall be sent to the attention of the Chair.

2504.4 Any written communications with the Board concerning a particular case shall reference the assigned docket number. Copies of any written communications filed with the Board shall be furnished to all other parties or their representatives of record, and the filing shall demonstrate compliance with this requirement.

2504.5 Except as provided in § 2504.6, all written communications from the Board shall be by email.

When the addressee is a District government employee, service shall be made by email to the employee’s officially assigned government email address.

When the addressee is a non-District government employee, service shall be made by emailing the individual or their representative at the email address supplied to the Board. A non-District government employee shall notify the Board of any change in their email address in writing.

2504.6 When the addressee is a non-District government employee who does not have an email account or whose service by the supplied email address is unsuccessful, service shall be made by first-class mail.

2504.7 The Board may serve any written communication by first-class mail at the request of any party.

2504.8 The Board may substitute any commercial carrier for first-class mail and may, in its discretion, supplement any email communications with printed copies by first-class mail or commercial carrier.

History

SOURCE: Final Rulemaking published at 69 DCR 009515 (July 29, 2022). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 2504

7 DCMR § 2505 EVIDENTIARY HEARINGS; NOTICE

2505.1 Members referred for disability retirement benefits and former members seeking modification of disability retirement benefits shall be afforded an evidentiary hearing before the Board, unless this right is affirmatively waived in writing. The Board may decide all other matters based on the evidence in the case record without an evidentiary hearing.

2505.2 In the absence of a specific request by a member, former member, or applicant for a public hearing, evidentiary hearings and other proceedings before the Board shall not be open to the public.

2505.3 Applications or recommendations for retirement, continued eligibility, or relief may be considered at the earliest possible time following their date of submission to the Board.

2505.4 Persons whose cases are scheduled to be heard by the Board shall be notified of the date, time, and location at least fourteen (14) calendar days in advance of the hearing, except that thirty (30) calendar days' advance notice shall be given in the case of a hearing on the retiree's continued eligibility for disability annuity payments. Any person whose case is to be heard by the Board may waive the advance notice requirement, in writing, if they so desire.

2505.5 A hearing scheduled to be conducted by the Board shall not be delayed by a motion for a continuance unless the motion is made at least seven (7) calendar days before the date on which the hearing is scheduled to be held, excluding Saturdays, Sundays or legal holidays, and, in the opinion of the Chair, or their designee, the motion sets forth good and sufficient cause for the continuance.

2505.6 Whenever the Board takes testimony during a hearing, the witness shall provide their testimony under oath or affirmation administered by the Chair, Alternate Chair or Acting Chair.

History

SOURCE: Final Rulemaking published at 69 DCR 009515 (July 29, 2022). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 2505

7 DCMR § 2506 [REPEALED]

History

SOURCE: Final Rulemaking published at 69 DCR 009515 (July 29, 2022). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 2506

7 DCMR § 2507 [REPEALED]

History

SOURCE: Final Rulemaking published at 69 DCR 009515 (July 29, 2022). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 2507

7 DCMR § 2508 REPRESENTATION

2508.1 A member, former member, or applicant appearing before the Board at a hearing shall have the right to be represented by an attorney or a non-legal representative of their own choosing and at their own expense.

2508.2 If it appears to the Board that the issues or facts in the matter before it are so involved or intricate that, in the interest of justice, conservation of time, or facilitating the preparation of an adequate record, a member, former member, or applicant should be represented by an attorney, the Board may urge the member, former member, or applicant to procure the services of any attorney; and, if agreeable with the member, former member, or applicant, the Board shall allow them a reasonable period of time in which to do so.

2508.3 The Board shall, in any case in which a member, former member, or applicant represents themselves, or is represented by a non-legal representative, take such action as may reasonably be necessary to ensure that all information material to the case be developed to the fullest extent possible, commensurate with the Board's function of sitting as an impartial body.

2508.4 During any evidentiary hearing, the Board may be represented by an attorney, or by a non-legal representative who is an employee of the D.C. Department of Human Resources.

2508.5 Members, former members, applicants, expert witnesses, and other persons giving testimony before the Board shall have questions directed to them first by the Board’s representative (if any), members of the Board, then followed by the member, former member, applicants, or their counsel or representatives, or as may otherwise be determined.

History

SOURCE: Final Rulemaking published at 69 DCR 009515 (July 29, 2022). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 2508

7 DCMR § 2509 [REPEALED]

History

SOURCE: Final Rulemaking published at 69 DCR 009515 (July 29, 2022). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 2509

7 DCMR § 2510 SUBPOENAS

2510.1 The Board, on its own initiative or upon written request of an applicant, retiree, or his or her designated representative, may issue subpoenas to compel witnesses to appear and testify or to produce records, papers, books or other documents with regard to matters within the jurisdiction of the Board.

2510.2 Any applicant, retiree, or his or her designated representative requesting issuance of a subpoena shall be responsible for the service thereof.

2510.3 All requests shall be in writing and shall specify with particularity the testimony desired, the records, papers, books, or other documents, and the facts expected to be proven thereby.

2510.4 The Board may determine the relevancy or materiality of any proposed testimony, records, papers, books, or other documents prior to the issuance of a subpoenas.

2510.5 Subpoenas shall be issued in the name of the Board.

2510.6 Witnesses, other than those employed by the District of Columbia Government, shall be entitled to the same fees as are paid witnesses for attendance before the Superior Court of the District of Columbia, although not required to be tendered in advance.

2510.7 Subpoenas shall be enforceable in the manner-prescribed in §4-603, D.C. Code, 1981 ed., to the same extent as subpoenas of the Superior Court of the District of Columbia.

2510.8 Subpoenas shall be signed by the Chairperson for the Board.

7 DCMR § 2511 EVIDENCE

2511.1 Evidence shall be taken in conformity with §§1-1509(b) and 4-533, D.C. Code, 1981 ed.

2511.2 All medical information shall be received by the Board at least fifteen (15) days prior to the date of the hearing to allow for an evaluation by the Board of Police and Fire Surgeons. All other information, documents, data, and relevant material shall be received by the Board at least ten (10) days prior to the date of the hearing.

7 DCMR § 2512 TRANSCRIPT OF HEARING

2512.1 Hearings shall be recorded under the supervision of the Board.

7 DCMR § 2513 MAINTENANCE OF DECORUM AND GOOD ORDER

2513.1 Decorum and good order shall be maintained at all times during hearings, and the Chairperson may, in the enforcement thereof, exclude or have removed from the hearing room any person violating any reasonable order of the Chairperson.

2513.2 Attorneys and other representatives may, for contumacious conduct, after having been afforded an opportunity to be heard thereon, be barred from further participation in a proceeding.

7 DCMR § 2514 CONSIDERATION OF CASES BY THE BOARD, EXCEPT FOR D.C. POLICE OFFICERS AND FIREFIGHTERS HIRED AFTER FEBRUARY 15, 1980

2514.1 This section shall apply to consideration of cases by the Board, .except for D.C. Police Officers.

2514.2 In considering the cases presented to the Board, the Board shall do the following:

(a) Make a determination regarding eligibility for disability retirement in cases involving injury or disease;

(b) When disability is found to exist, determine whether or not the disability is duty-related;

(d) Decide all matters pertaining to survivor's relief and lump sum performance-of-duty benefits;

(e) Determine, on the basis of periodic medical evaluation, the continuing eligibility of an annuitant;

(f) Determine, on the basis of annual income, the continuing eligibility of an annuitant;

(g) Determine total disability, and the percentage thereof;

(h) Determine the effective date of disability retirement; and

(i) Make any other findings as deemed necessary to carry out its function.

7 DCMR § 2515 DISABILITY ANNUITY DETERMINATIONS

2515.1 This section shall apply to matters involving members of the D.C. Metropolitan Police Department and the D.C. Fire and Emergency Medical Services Department, who were hired after February 15, 1980.

2515.2 Any disability annuity shall be determined by a formula: A minus B divided by A, equals C, and C multiplied by D equals E, given the following:

(a) “A” shall equal the current salary for the position held by the member;

(b) “B” shall equal the current earning capacity for the position the disabled member has the capacity to occupy;

The Board shall be guided in determining the current earning capacity of a member by a Labor Market Survey prepared by a qualified rehabilitation specialist.

The Board may, at its discretion, rely on any other industry-standard to determine a member’s earning capacity in lieu of relying on a Labor Market Survey, provided that the Board states its reasons for doing so.

(d) “D” shall equal seventy percent (70%) of the member’s basic salary; and

(e) “E” shall equal the amount of the annuity;

(1) The amount of the annuity shall not be less than forty percent (40%) of the basic salary at the time of retirement if the member has been found to have been injured or acquired an illness in the performance of duty.

(2) The amount of the annuity shall not be less than thirty percent (30%) if the member has been found to have been disabled by an injury or illness which was not incurred in the performance of duty.

(f) The final dollar amount of an annuity for members under this section shall be determined by the District of Columbia Retirement Board.

2515.3 The Labor Market Survey shall take the member’s injury or disease into account through Physical Demand Codes prepared by the Board of Surgeons, or Temperament Codes prepared by the Behavioral Health Services section of the Board of Surgeons. The Labor Market Survey shall also take into account the following factors:

The member’s education;

The member’s employment history;

The member’s transferrable skills;

The member’s ability to engage in full-time or part-time employment; and

Any other traits or qualities which may impact the member’s post-retirement employability.

2515.4 The positions listed within the Labor Market Survey shall exist in the open labor market in the Washington metropolitan statistical area for employment to be deemed available.

2515.5 The Board shall examine each position in the Labor Market Survey and decide as to whether the member can occupy the position listed based on the factors listed in § 2515.4.

Determinations as to whether a member has the physical or mental capacity to occupy a position shall be based on medical or psychological evidence in the record; and

Determinations as to whether a member has the educational background, employment history, transferrable skills or other qualities needed to occupy a full-time or part-time position shall be based on evidence in the record.

2515.6 There shall be an assumption that all positions listed in the Labor Market Survey will comply with the Americans with Disabilities Act, and similar legislation, and will provide reasonable accommodations to an individual with the member’s physical or mental condition.

2515.7 Once the percentage of disability has been determined by the Board’s final decision, and the member has exhausted all available appeals, the percentage of disability shall not be changed except in the following circumstances:

There is medical evidence that the member, under the age of fifty (50), has recovered from the injury for which they were retired; or

The member, under the age of fifty (50), provides medical evidence that they have suffered a worsening of condition of the injury or illness incurred in the performance of duty for which they were retired pursuant to D.C. Official Code § 5-710.

2515.8 A member, under the age of fifty (50), who was retired for injuries or illnesses not incurred in the performance of duty pursuant to D.C. Official Code § 5-709, shall not be entitled to an increased annuity on the basis of a worsening condition.

History

SOURCE: Final Rulemaking published at 69 DCR 009515 (July 29, 2022). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 2515

7 DCMR § 2516 APPEARANCE BY PERSONS APPLYING FOR RETIREMENT

2516.1 Each person appearing before the Board for retirement consideration shall be given full opportunity to present the testimony under oath or affirmation, and to produce the witnesses to give testimony under oath or affirmation, as he or she may desire, subject to the limitations contained in §2510 of this chapter.

2516.2 Appearances before the Retirement Board shall be made in person unless the Board of Surgeons presents medical testimony or evidence, to the satisfaction of the Board, that the person is unable to appear because of the extreme severity of his or her physical or mental condition.

2516.3 The Board may, in the circumstances cited in §2516.2, either consider the case in the member's absence, on the basis of the medical findings presented by the Board of Surgeons, and any other pertinent information submitted by the member or contained in his or her records, or visit and examine the member at the place that is reasonably convenient to visit or cause to have him or her examined by an approved medical expert nearby.

2516.4 Applications for optional retirement shall be considered by the Board on the basis of the following:

(a) The applicant's length of service;

(b) The medical report(s) presented by the Board of Surgeons concerning the physical and mental condition of the applicant; and

2516.5 Applicants for optional retirement shall not be required to make a personal appearance before the Board but may be so required at the Board's discretion. However, those who express a desire to appear before the Board, personally, may do so.

7 DCMR § 2517 APPEARANCE BY OTHER APPLICANTS FOR RELIEF

2517.1 In lieu of personally appearing before the Board, individuals applying for relief for themselves and/or on behalf of surviving children shall furnish to the Board satisfactory evidence of their identity, marriage, birth, and legal responsibility for the children, and student status of the children, when appropriate, at the time of the death of a member.

2517.2 With respect to the application for the lump sum payment benefit, provided in cases of performance-of-duty death, evidence of dependency, including the cost of care and portion paid by deceased member, shall also be furnished.

2517.3 The Board shall consider applications for relief from the documented evidence furnished but may, in its discretion, require any individual(s) making the application to personally appear before it.

2517.4 In considering applications for the lump sum payment benefit, the Board shall also consider the investigative report of the circumstances regarding the death involved. An appropriate official of the department or agency concerned shall personally present the report to the Board. The official shall be someone other than the member or alternate member serving the Board at the time the application is being considered.

2517.5 Any applicant for relief, who expresses a desire to do so, may personally appear before the Board.

7 DCMR § 2518 EXAMINATION OF RECORDS

2518.1 Any applicant for retirement, or retiree ordered before the Board for review of continued disability annuity payments, or his or her representative, shall be permitted to see and examine his or her service and sick records, investigative reports, the transcript of the record of previous hearings, if any, or any other documents pertinent to his or her case.

2518.2 If the applicant for retirement has knowledge of any other paper or document contained in the file kept by his or her department or agency, and desires its production before the Retirement Board at the time of hearing, he or she shall give written notice, at least seven (7) full days before the date of the hearing, excluding Saturdays, Sundays or legal Holidays, expressing the desire and designation of the particular paper or document to the head of the department or agency.

2518.3 The department or agency shall be required to produce the requested paper(s) or document(s) and make it available at the time of the hearing.

2518.4 The Board shall, subject to the restrictions governing disclosure of information, receive or reject the paper(s) or document(s) as evidence.

2518.5 The examination of these records by the applicant or his or her attorney or representative shall be permitted during the regular office hours of any regular work day.

2518.6 If the applicant does not appear personally to make the examination, his or her attorney or representative shall present a written authorization from the applicant requesting permission to make the examination in his or her place.

7 DCMR § 2519 ANNUAL MEDICAL EXAMINATION OF RETIRED ANNUITANT

2519.1 Each annuitant retired for disability shall appear before the Board of Surgeons, or before a medical specialist approved by the Board of Surgeons, at least once every year until he or she shall have reached the age of fifty (50) years, for a medical examination of the disability for which he or she was retired, to determine his or her current physical and/or mental condition, unless excused from the examination by order of the Board.

2519.2 The Board shall receive all medical and psychiatric reports through and from the Board of Surgeons and, upon review of the reports and recommendations made by the Board of Surgeons, determine the current status of the annuitant's disability and make a decision as to the disposition of the case.

2519.3 The Board may, in its discretion and in order to assist it in making a fair and just determination, require any disabled annuitant to report to the Board of Surgeons or to an outside medical consultant for an examination of the disability for which he or she was retired. Expenses incurred by an annuitant reporting to an outside consultant at the direction of the Board shall not-be borne by the annuitant.

2519.4 In making the necessary determination with regard to the continuation of retirement eligibility of an annuitant the Board shall consider the written opinion and recommendation submitted to it by the Board of Surgeons concerning the annuitant's current physical and mental condition together with any other pertinent reports or records.

2519.5 An annuitant may not be required to appear before the Board in person but may be so required at the Board's discretion.

2519.6 If the Board finds there is sufficient evidence that the annuitant has recovered from the disability for which he or she retired, then the annuitant may be required to appear before the Board for a hearing. The expenses incurred by the appearance shall be borne by the annuitant.

7 DCMR § 2520 NOTARIZED INCOME STATEMENT

2520.1 Each retired annuitant under the age of fifty (50) shall file annually with the Board a notarized statement of employment and income on forms provided, or in format suggested by the Board, and shall execute a release, on a form provided by the Board for that purpose, authorizing the Board to obtain the annuitant's federal income tax returns or information contained therein from the Internal Revenue Service.

2520.2 Information received shall be kept confidential and shall only be used to determine the retiree's continued eligibility for disability annuity payments and shall not be redisseminated unless the retiree's prior written permission is received.

2520.3 All information received pertaining to an annuitant's employment and income shall be considered in determining earning capacity.

2520.4 Any annuitant who is retired under §4-615 or §4-616, D.C. Code (1981), and who prior to his or her retirement was an officer or member of the D.C. Metropolitan Protective Service, or the Secret Service Division, shall upon request by the Board, submit to the Board a notarized statement containing such information as may be required with respect to the gross income received from wages or self-employment, or both, as follows:

(a) The annuitant shall submit the required information on the form provided, or in format suggested, as appropriate; and

(b) The annuitant shall have thirty (30) days from the date of receipt of the request to return the completed notarized information to the Board.

2520.5 After examining and evaluating information or statement submitted by any retired annuitant, the Board may require the annuitant to submit further notarized statement(s) containing additional information with respect to the income received from wages or self-employment, or both, as the Board deems appropriate.

2520.6 In the event a retired annuitant fails to submit the statement required or willfully furnishes materially false information, or when the statements raise a question of the annuitant's continued eligibility for disability annuity payments, the Board shall schedule a hearing on the matter.

7 DCMR § 2521 CESSATION OF ANNUITY

2521.1 Uniform enforcement for noncompliance with §2520 shall be applicable to all retirees, with respect to submission of notarized income statements. Any annuitant who is retired on disability under §4-615 or §4-616, D.C. Code 1981 ed., who willfully furnishes materially false information with respect to his or her income in any statement required to be submitted to the Board under §2520 shall forfeit all rights to continued disability annuity.

2521.2 For any annuitant who refuses or otherwise willfully fails to timely submit a statement required by §2520, payment of the annuity to the annuitant shall cease and the annuitant shall not be eligible to receive the annuity or any part thereof for the period beginning on the date after the final day for timely filing of the statement and ending on the date on which the Board receives the statement.

2521.3 For any annuitant who is retired on disability under §4-615 or §4-616, D.C. Code 1981 ed., who refuses or otherwise fails to undergo the medical examination required by §2520, payment of annuity shall cease and the annuitant shall not be eligible to receive annuity or any part thereof for any period commencing on the day following the day on which the annuitant was required to undergo examination, and ending on the date on which the annuitant undergoes examination.

7 DCMR § 2522 RETIREMENT BOARD ACTION

2522.1 The effective date for all actions regarding retirement and relief shall be determined by the Board pursuant to the provisions of P.L. 96-122 and the consideration of the evidence of record. When a decision is reached as to the disposition of a matter, the Board members present shall indicate their decision by signing the report of action.

2522.2 Each vote shall be final unless there is a reconsideration of the case in executive session; Provided, that no decision shall be final until a written order giving effect to the Board's decision is signed by the Chairperson.

2522.3 The Board shall reinstate an annuitant's annuity, lost for exceeding the eighty percent (80%) income limitation, effective January 1 of the year following the calendar year in which the annuity was lost, if the annuitant has submitted to the Board a notarized statement containing such information which demonstrates that the annuitant's income from wages and/or self-employment is less than eighty percent (80%) of the current rate of compensation of the position last occupied at the time of retirement.

2522.4 If an annuitant refuses or fails to timely submit the necessary income information or supporting financial data pursuant to §2522.3, the annuity shall not be reestablished until such date as the Board has received all necessary information.

History

SOURCE: Notice of Rulemaking published at 33 DCR 6793 (October 31, 1986).

7 DCMR § 2523 FINDINGS OF FACT AND CONCLUSIONS OF LAW

2523.1 A written decision with accompanying findings of fact and conclusions of law shall be prepared by the D.C. Office of Personnel, subject to review by the Corporation Counsel.

2523.2 A copy of the decision along with the final order shall be served upon the member, office, or retired annuitant.

2523.3 The formal order giving effect to the Board's decision shall be prepared for the signature of the Chairperson.

2523.4 Copies of the order shall be distributed to the employing department or agency, the applicant or annuitant, the accounting officer, and other involved offices.

2523.5 The original of all orders issued by the Retirement Board shall be retained by the Director of Personnel as the official record of the Board's action.

7 DCMR § 2524 INTERIM ORDER

2524.1 Upon proper written application of an officer or member, other, than an officer or member not eligible for retirement, where it can be shown that delay in entering a retirement order will adversely affect the member, the Board may issue an interim order effecting a retirement.

2524.2 An interim order shall not become final, for purposes of a petition for reconsideration or an appeal, until the written decision is issued by the Board and served upon the member.

7 DCMR § 2525 MOTION TO AMEND AN ORDER OR DECISION

2525.1 A member, former member, or applicant may ask the Board to amend any of its orders or decisions by filing a motion within ten (10) work days after the issuance of the order or decision. The motion must be in writing and clearly articulate the reasons relief is sought, the grounds relied upon for requesting the relief, and the specific amendments sought.

2525.2 The Board, upon motion or upon its own initiative, may alter or amend a final order or decision when there is:

(a) An intervening change of controlling law;

(b) Newly available evidence that, with reasonable diligence, could not have been available at the time of the hearing;

(d) A need to prevent manifest injustice.

2525.3 Neither the filing nor the granting of a motion for an amendment shall operate as a stay unless specifically ordered by the Board.

2525.4 A stay shall be granted only under unusual or exceptional circumstances and when the member, former member, or applicant will likely prevail on the motion.

2525.5 The Board may permit or require oral arguments for any motion to alter or amend an order or decision.

History

SOURCE: Final Rulemaking published at 69 DCR 009515 (July 29, 2022). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 2525

7 DCMR § 2526 [REPEALED]

History

SOURCE: Final Rulemaking published at 69 DCR 009515 (July 29, 2022). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 2526

7 DCMR § 2527 [REPEALED]

History

SOURCE: Final Rulemaking published at 69 DCR 009515 (July 29, 2022). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 2527

7 DCMR § 2528 EFFECTIVE DATE OF RETIREMENT

2528.1 Any officer or member or the Metropolitan Police force or the Fire Department who completes twenty (20) years of service (or twenty-five (25) years of service and attains the age of fifty if appointed after February 15, 1980), after giving at least sixty (60) days written advance notice to his or her department or agency head, stating his or her intention to retire optionally (Optional Retirement), and stating the date on which he or she will retire, and if all other conditions are met, shall be retired effective on the date requested.

2528.2 Any member of the Metropolitan Police force or the Fire Department having reached the age of sixty (60) years shall, in the discretion of the Mayor, be retired.

2528.3 The effective date of retirement for officers and members who retire on disability shall be determined by the Board and made known upon the issuance of the final retirement Order.

7 DCMR § 2529 FINAL ADMINISTRATIVE REMEDY

2529.1 The final action of the Board in cases coming before it shall constitute the final administrative action within the District of Columbia Government, except in matters and cases of Police and Fire Chiefs, whose cases shall be decide by the Mayor.

2529.2 An appeal from final administrative action, including a decision of the Mayor, may be taken to the District of Columbia Court of Appeals within the time periods as are specified in the rules of the Court.

7 DCMR § 2599 DEFINITIONS

2599.1 When used in this chapter, the following meanings apply:

Applicant – an individual seeking death benefits or survivor benefits.

Board – the Police and Firefighters Retirement and Relief Board.

Board of Surgeons – the PFC Associates, LLC (Police & Fire Clinic), or its successor(s).

Disability - any actual or presumed reduction in or absence of ability to engage in gainful activity which is caused in whole or in part by an impairment, i.e., economic disability.

Impairment - any anatomic or functional abnormality or loss, i.e., physical impairment.

Member – a uniformed employee of the Metropolitan Police Department, the Fire and Emergency Medical Services Department, the United States Park Police, or United States Secret Service Uniform Division or agent of the United States Secret Service who is eligible for or has made contributions to the District of Columbia Police Officers and Firefighters' Retirement Plan.

Parties – the member, former member, or applicant for benefits or relief, and the applicable department (such as the Metropolitan Police Department, the Fire and Emergency Medical Services Department, the United States Park Police, or the United States Secret Service).

Wage-earning capacity -- the ability to engage in gainful activity.

History

SOURCE: Final Rulemaking published at 69 DCR 009515 (July 29, 2022). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 2599

7-31 [RESERVED]

7 DCMR § 3100 APPLICABILITY

3100.1 The provisions of Chapter 31 are applicable to the District of Columbia's (District) Public Sector Workers’ Compensation Program (Program), administered by the Office of Risk Management (ORM). To the extent that there is a conflict between the rules set forth herein and other rules in Chapter 1 of this title, the rules in Chapter 31 shall control with respect to any matter that is within the jurisdiction of the ORM.

3100.2 ORM has oversight and administrative responsibility for the Program, including all Initial Determinations (IDs) and Eligibility Determinations (EDs) rendered by the ORM.

3100.3 All employees, contractors, sub-contractors, and agents, acting for or on behalf of the District to implement the Program pursuant to the Act, including third party administrators, shall comply with these rules.

3100.4 Nothing in these rules, or any instructions or attachments related thereto, shall be interpreted as:

(a) Creating an entitlement or property interest in any employee, contractor, sub-contractor, or agent to whom these rules are applicable;

(b) Making any person or entity a third-party beneficiary to any contract with the District or with any of its contractors or sub-contractors;

(d) Limiting the District's ability to amend, modify, or rescind these rules, consistent with any applicable law, including the Act and the District of Columbia Administrative Procedure Act, approved October 21, 1968, 82 Stat. 1203, D.C. Official Code § 2-551 et seq. (2001), binding case law, government contract provisions and modifications, and applicable judgments or settlements.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 52 DCR 5481(June 10, 2005) [Expired]; and Notice of Emergency and Proposed Rulemaking published at 52 DCR 5771(June 17, 2005) [Expired]; and Notice of Emergency and Proposed Rulemaking published at 52 DCR 8964(October 7, 2005) [Expired]; and Notice of Emergency and Proposed Rulemaking published at 53 DCR 940(February 10, 2006) [Expired];Final Rulemaking published at 53 DCR 4290 (May 26, 2006); as amended by Notice of Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Notice of Final Rulemaking published at 57 DCR 12224, 12236 (December 24, 2010).

7 DCMR § 3101 RESERVED

7 DCMR § 3102 RESERVED

7 DCMR § 3103 RESERVED

7 DCMR § 3104 RESERVED

7 DCMR § 3105 RESERVED

7 DCMR § 3106 RESERVED

7 DCMR § 3107 RESERVED

7 DCMR § 3108 RESERVED

7 DCMR § 3109 RESERVED

7 DCMR § 3110 RESERVED

7 DCMR § 3111 RESERVED

7 DCMR § 3112 RESERVED

7 DCMR § 3113 RESERVED

7 DCMR § 3114 RESERVED

7 DCMR § 3115 RESERVED

7 DCMR § 3116 RESERVED

7 DCMR § 3117 RESERVED

7 DCMR § 3118 RESERVED

7 DCMR § 3119 RESERVED

7 DCMR § 3120 RESERVED

7 DCMR § 3121 RESERVED

7 DCMR § 3122 RESERVED

7 DCMR § 3123 RESERVED

7 DCMR § 3124 RESERVED

7 DCMR § 3125 RESERVED

7 DCMR § 3126 RESERVED

7 DCMR § 3127 RESERVED

7 DCMR § 3128 RESERVED

7 DCMR § 3129 RESERVED

7 DCMR § 3130 RESERVED

7 DCMR § 3131 PROCEDURES FOR NEW CLAIMS

3131.1 The District government is responsible for receiving first reports of injuries, administering claims and making compensability and continued eligibility determinations.

3131.2 Claims properly and timely reported by employees that meet the requirements of the Act shall be covered by the Program.

3131.3 The Program shall make IDs concerning new claims for compensation benefits, including decisions to accept or deny new claims.

3131.4 The employer shall report the claim to ORM, by telephone within twenty-four (24) hours of the incident, injury or death. No later than three (3) days after the initial report, the employer shall report the claim, in writing, within three (3) days using Form 1, the Employer and Employee First Report of Injury or Occupational Disease, and Form 2, Supervisor's Report.

3131.5 Form 1 shall contain the following information:

(a) The name and address of the employer;

(b) The name and address of the employee;

(d) The name and telephone number of the employee's supervisor;

(e) The employee's occupation at the time of the injury or death;

(f) The employee's wage/base salary information;

(g) The length of employee's employment;

(h) The location of the accident; and

(i) A description of the events which resulted in the death, injury or disease; type of injury; and the body parts affected.

3131.6 Form 2 shall contain the following information:

(a) Whether the supervisor witnessed the accident;

(b) Whether the employee reported the accident or injury, and to whom;

(d) The nature of the injuries the employee complained of;

(e) Whether the employee has been placed on Continuation of Pay (COP);

(f) Whether the employee was in the performance of duty at the time of injury or death;

(g) A description of the events which resulted in the death, injury or disease; and

(h) An attached copy of the employee's position description and all incident reports.

3131.7 The Employer shall complete and submit supplemental reports to the ORM as requested. Said reports shall contain:

(a) Statements from witnesses confirming or refuting the employee's allegations concerning the accident or injury;

(b) Statements, where requested, to give additional details of the accident or incident;

(c) Statements regarding whether the employee had a similar disability prior to the alleged injury, and, if so, full details of the prior disability or incident and associated medical reports; and

(d) Statements of other injuries or accidents of a similar character and the full details.

3131.8 The Employer shall complete Form CA-3, Report of Return to Duty.

3131.9 The Employee or his/her representative shall complete Form CA-7, Claim for Compensation, Part A, Employee Statement. The notice shall:

(a) Be in writing;

(b) State the name and address of the employee;

(d) State the cause and nature of the injury, or in the case of death, the employment factors believed to be the cause;

(e) State the employee's official job title, grade/step, and number of hours scheduled to work per day;

(f) State the employee's health benefit plan and code;

(g) State whether the employee has optional life insurance;

(h) State whether a claim has been made against a third party as a result of the injury, illness or death;

(i) State the names, relationship, and birth dates of employee's dependents, and/or the amount of support paid for dependents not living with the employee;

(j) Be signed by, and contain the address of, the individual giving the notice;

(k) In the case of the death of an employee, the individual filing the Form CA-7 shall provide documentation establishing the relationship to the deceased. Documentation may include a certified copy of a

1 birth certificate,

2 marriage license, or

3 other documentation satisfactory to ORM.

(l) Have attached, proof of dependency, for example, birth certificates and court orders; and

(m) Have attached a copy of the employee's last pay stub.

3131.10 The employee shall complete a Medical Authorization and Release of Confidential Information Form as provided by ORM.

3131.11 The employee shall have his physician complete and return to the ORM, a Form 3, Physician's Report of Employee's Injury and Disability.

3131.12 The employee shall submit proper medical documentation as requested by the ORM to support the employee's ongoing injury and absence from work. These documents shall include, but are not be limited to the following:

(a) Statements and medical documentation regarding any similar injury that occurred prior to the alleged injury;

(b) Statements and medical documentation regarding any other injury or accident of a similar character; and

3131.13 ID benefits may be based, in whole or in part, upon the following factors:

(a) The employee's lack of a compensable injury;

(b) The employee's abandonment of the claim;

(c) The employee's failure to cooperate with treatment or rehabilitation recommendations, or with Program requirements for providing information; or

(d) Any other grounds, such as fraud, that reasonably demonstrate that the employee is not entitled to benefits under the Act.

3131.14 A new claim shall be denied or controverted when an employee fails to cooperate, by following the procedures set forth in this chapter.

3131.15 Within thirty (30) days after the Program receives a new claim for compensation benefits compensable under the Act, the Program shall issue an ID providing notice to the employee furnishing or authorizing payment for services, appliances, supplies, reasonable transportation, and expenses incidental thereto. Within thirty (30) days after the Program receives a new claim for compensation benefits that is not compensable under the Act, the Program shall issue an ID providing notice to the employee denying or controverting such claim.

3131.16 The ID is effective unless the employee succeeds on a request for hearing as provided in Chapter 1.

3131.17 Medical reports used in connection with an ID shall meet the requirements of subsection 3160.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 52 DCR 5481(June 10, 2005) [Expired]; and Notice of Emergency and Proposed Rulemaking published at 52 DCR 5771(June 17, 2005) [Expired]; and Notice of Emergency and Proposed Rulemaking published at 52 DCR 8964(October 7, 2005) [Expired]; and Notice of Emergency and Proposed Rulemaking published at 53 DCR 940(February 10, 2006) [Expired];Final Rulemaking published at 53 DCR 4290 (May 26, 2006); as amended by Notice of Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Notice of Final Rulemaking published at 57 DCR 12224, 12236 (December 24, 2010).

7 DCMR § 3132 PROCEDURES FOR EXISTING CLAIMS

3132.1 The Program shall review EDs for compensation benefits, including decisions to terminate, suspend, or modify benefits.

3132.2 The Program shall adjust a claim using information from the treating physician who provides medical treatment to the employee for an injury or disability and from any Additional Medical Examination (AME) report. An AME shall consist of a case file review, and/or an in-person assessment or examination, by a qualified health professional other than the treating physician.

3132.3 An AME report shall be conclusive and responsive to the requests from the Program as part of a complete professional evaluation. Prior to any determination of coverage based upon the recommendation(s) of an AME, the injured employee's treating physician shall have thirty (30) days from receipt of a copy of the AME to submit written comments to the Program regarding the AME finding(s).

3132.4 Upon a request from the Program, the employee and the treating physician shall provide copies of all the employee's medical records regardless of the source of the record(s) or the medical condition(s) addressed in the records. The Program shall take appropriate steps to ensure that the medical records provided to it are maintained in a confidential manner.

3132.5 An employee who is receiving benefits under the Program shall not be the subject of an ED unless and until there is sufficient evidence to support the issuance of an ED pursuant to the Act and this section.

3132.6 An ED may be based, in whole or in part, upon the following factors:

(a) The death of the employee;

(b) The clear evidence that employee has returned to work;

(d) The employee's failure to participate in vocational rehabilitation or to cooperate with the Program's request for a physical examination;

(e) The cessation or lessening of a compensable injury;

(f) The condition is no longer causally related to the employment;

(g) The condition has changed from a total disability to a partial disability;

(h) The employee has returned to work on a full-time or part-time basis notwithstanding individuals directed to undergo vocational rehabilitation under section 2304 of the Act;

(i) The Program determines based upon strong compelling evidence that the ID was in error; and

(j) Any other ground demonstrating that the Act requires the employee's benefits to be modified, such as abandonment of the claim, retirement of the employee, or clear evidence that the employee has knowingly and willfully received benefits to which he or she was not entitled under the Act.

3132.7 With the exception of the factors set forth in subsection 3132.6 (a)--(d), compensation benefits subject to an ED shall not be modified until the period for requesting reconsideration set forth in section 3134 has elapsed with no Request for Reconsideration being received by the ORM, or until a timely Request for Reconsideration has been decided by the ORM, whichever is earlier.

3132.8 A claim shall be deemed abandoned or subject to modification for non-cooperation when the employee fails to return required forms for an existing claim, the Program has made at least two (2) attempts to contact the employee and request such forms, and at least fourteen (14) calendar days prior to the issuance of the notice, the Program sends the employee a warning letter explaining why the Program believes the employee is not cooperating or has abandoned the claim, what the employee must do in order to comply, and describing the consequences of failing to cooperate or abandonment.

3132.9 In making its determinations regarding whether a claim should be the subject of an ED, the Program shall consider all relevant evidence in the claim file, including all relevant medical evidence.

3132.10 The ED is effective unless the employee succeeds on a request for reconsideration under section 3134 or the Program revises the ED.

3132.11 Medical reports used in connection with an ED shall meet the requirements of section 3160.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 52 DCR 5481(June 10, 2005) [Expired]; and Notice of Emergency and Proposed Rulemaking published at 52 DCR 5771(June 17, 2005) [Expired]; and Notice of Emergency and Proposed Rulemaking published at 52 DCR 8964(October 7, 2005) [Expired]; and Notice of Emergency and Proposed Rulemaking published at 53 DCR 940(February 10, 2006) [Expired];Final Rulemaking published at 53 DCR 4290 (May 26, 2006); as amended by Final Rulemaking published at 53 DCR 6578 (August 11, 2006); as amended by Notice of Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Notice of Final Rulemaking published at 57 DCR 12224, 12236 (December 24, 2010).

7 DCMR § 3133 PROGRAM NOTICES OF INITIAL DETERMINATIONS AND ELIGIBILITY DETERMINATIONS

3133.1 The Program shall issue a notice regarding each ID and ED pursuant to this section. A notice of an ID or ED shall be issued using a standard form developed by the Program that informs the employee of the right to request reconsideration. Sample notices shall be published in the District's Personnel Manual.

3133.2 A notice shall contain a narrative description of the rationale for the decision, shall cite relevant portions of the supporting documentation or claim file, and shall be accompanied by supportive documentation.

3133.3 A notice shall be sent to the claimant's last known address by first class U.S. mail, postage prepaid. A certificate of service shall be executed by the Program at the time of mailing.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 52 DCR 5481(June 10, 2005) [Expired]; and Notice of Emergency and Proposed Rulemaking published at 52 DCR 5771(June 17, 2005) [Expired]; and Notice of Emergency and Proposed Rulemaking published at 52 DCR 8964(October 7, 2005) [Expired]; and Notice of Emergency and Proposed Rulemaking published at 53 DCR 940(February 10, 2006) [Expired];Final Rulemaking published at 53 DCR 4290 (May 26, 2006).

7 DCMR § 3134 RECONSIDERATIONS OF INITIAL DETERMINATIONS AND ELIGIBILITY DETERMINATIONS

3134.1 An employee who is dissatisfied with an ID or ED may either submit a request for reconsideration to the ORM, or, appeal the ID or ED as provided in the Act, but not both at the same time.

3134.2 An employee shall be entitled to receive continued benefits pending a decision on a request for reconsideration unless:

(a) The employee has died;

(b) The employee has returned to work;

(d) The employee's compensation benefits have been suspended for non-cooperation;

(e) The employee is no longer entitled to augmented compensation pursuant to the Act;

(f) The employee has voluntarily retired and been awarded retirement benefits in lieu of disability compensation benefits;

(g) The employee knowingly and willfully received benefits to which he or she was not entitled under the Act; or

(h) The claim has been abandoned, as defined in subsection 3132.8.

3134.3 If a request for reconsideration is properly and timely submitted pursuant to this section, the ORM may affirm, modify, vacate, or remand the ID or ED for further examination by claims examiners within the Program, in full, or in part.

3134.4 A request for reconsideration shall be written and shall contain medical, vocational, or factual justification.

3134.5 A Request for Reconsideration shall be delivered to the ORM by hand, or by United States Mail, postage prepaid, within thirty (30) days of the date of issuance of the ID or ED that is the subject of the Request for Reconsideration. If a Request for Reconsideration is hand-delivered, the ORM shall provide the claimant with a dated receipt. Requests for Reconsideration shall not be accepted by facsimile or email.

3134.6 If the ORM receives a Request for Reconsideration after the 30th day following the issuance of the ID or ED, it shall deny the Request for Reconsideration as untimely without ruling on the merits.

3134.7 An employee may request a waiver of the filing deadline in subsection 3134.6 on the grounds that good cause existed during the thirty (30) days following the ID or ED decision sufficient to justify the ORM's late receipt of the Request for Reconsideration. The employee shall provide factual justification and supporting documentation required by ORM to support the request for the waiver. In no event shall a request for a waiver of the deadline be considered after one hundred eighty (180) days from the date of issuance of an ID or ED.

3134.8 The ORM shall rule on the merits of a Request for Reconsideration. The standard to prevail on a Request for Reconsideration shall be preponderance of the evidence, based on the Act, best practices, and applicable case law. If the ORM's decision on the Request for Reconsideration is based in whole or in part on medical information, the ORM shall, in making its ruling, adhere to the requirements of subsection 3132.9.

3134.9 If the ORM grants a Request for Reconsideration and the employee has been receiving continued benefits during the pendency of the ORM's decision, such benefits shall continue without interruption. If the employee has not been receiving benefits during the pendency of the ORM's decision, all current and any retroactive benefits due to the employee shall be paid.

3134.10 If the ORM denies a Request for Reconsideration, the ORM shall direct the Program to issue a new ID or ED from which the employee shall have thirty (30) calendar days from the date of the ORM's reconsideration decision to appeal to the Department of Employment Services (DOES).

3134.11 The ORM shall, using a standard form developed by the ORM, provide a brief written explanation of its decision and serve a copy on the employee.

3134.12 The ORM decision shall not be binding upon a DOES Administrative Law Judge.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 52 DCR 5481(June 10, 2005) [Expired]; and Notice of Emergency and Proposed Rulemaking published at 52 DCR 5771(June 17, 2005) [Expired]; and Notice of Emergency and Proposed Rulemaking published at 52 DCR 8964(October 7, 2005) [Expired]; and Notice of Emergency and Proposed Rulemaking published at 53 DCR 940(February 10, 2006) [Expired];Final Rulemaking published at 53 DCR 4290 (May 26, 2006).

7 DCMR § 3135 RESERVED

7 DCMR § 3136 RESERVED

7 DCMR § 3137 RESERVED

7 DCMR § 3138 RESERVED

7 DCMR § 3139 RESERVED

7 DCMR § 3140 RESERVED

7 DCMR § 3141 RESERVED

7 DCMR § 3142 RESERVED

7 DCMR § 3143 RESERVED

7 DCMR § 3144 RESERVED

7 DCMR § 3145 RESERVED

7 DCMR § 3146 RESERVED

7 DCMR § 3147 RESERVED

7 DCMR § 3148 RESERVED

7 DCMR § 3149 RESERVED

7 DCMR § 3150 RESERVED

7 DCMR § 3151 RESERVED

7 DCMR § 3152 RESERVED

7 DCMR § 3153 RESERVED

7 DCMR § 3154 RESERVED

7 DCMR § 3155 RESERVED

7 DCMR § 3156 RESERVED

7 DCMR § 3157 RESERVED

7 DCMR § 3158 RESERVED

7 DCMR § 3159 RESERVED

7 DCMR § 3160 REQUIRED CONTENTS OF MEDICAL REPORTS FROM PHYSICIANS

3160.1 The following information shall be included in a medical report from a physician that is used by the Program in connection with an ID, ED, or other Program decision affecting employee benefits:

(a) Date(s) of examination and treatment;

(b) History given by the employee;

(d) Results of diagnostic tests;

(e) Diagnosis;

(f) Course of treatment;

(g) Description of any other conditions found but not due to the claimed injury;

(h) Treatment given or recommended for the claimed injury;

(i) Physician's opinion, with medical reasons, as to causal relationship between the diagnosed condition(s) and the factors or conditions of the employment;

(j) Extent of disability affecting the employee's ability to work due to the injury;

(k) Prognosis for recovery; and

(l) All other material findings.

3160.2 Medical reports that fail to meet the requirements of this section may be deemed to be invalid and compensation claims based thereon may be denied.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 52 DCR 5481(June 10, 2005) [Expired]; and Notice of Emergency and Proposed Rulemaking published at 52 DCR 5771(June 17, 2005) [Expired]; and Notice of Emergency and Proposed Rulemaking published at 52 DCR 8964(October 7, 2005) [Expired]; and Notice of Emergency and Proposed Rulemaking published at 53 DCR 940(February 10, 2006) [Expired];Final Rulemaking published at 53 DCR 4290 (May 26, 2006).

7 DCMR § 3161 EMPLOYEE AND ATTORNEY ACCESS TO PROGRAM CLAIMS FILES

3161.1 An employee and his or her attorney shall have access to the Program's file pertaining to his or her claim. The Program's files pertaining to Public Sector Workers’ Compensation are District of Columbia property.

3161.2 An employee and his or her attorney may contact the Program to request an appointment to review the Program's file and make one copy of the documents at the employee's expense at reasonable rates set by the Program. The Program shall schedule an appointment to be held at a mutually convenient time within five (5) business days of receiving the employee's request.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 52 DCR 5481(June 10, 2005) [Expired]; and Notice of Emergency and Proposed Rulemaking published at 52 DCR 5771(June 17, 2005) [Expired]; and Notice of Emergency and Proposed Rulemaking published at 52 DCR 8964(October 7, 2005) [Expired]; and Notice of Emergency and Proposed Rulemaking published at 53 DCR 940(February 10, 2006) [Expired];Final Rulemaking published at 53 DCR 4290 (May 26, 2006); as amended by Notice of Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Notice of Final Rulemaking published at 57 DCR 12224, 12238 (December 24, 2010).

7 DCMR § 3162 PAYMENT OF COMPENSATION BENEFITS ON REMAND FROM APPEAL

3162.1 The Program shall pay compensation to the employee pursuant to an order of an ALJ, provided the employee, within fifteen (15) days of the Order, has submitted:

Verification of the injury for the period specified in the Order;

Verification of lost wages for the period specified in the Order, including but not limited to, all wage documentation for the period (i.e., pay stubs, W-2 or 1099 income tax forms, and/or other related income earnings statements).

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 52 DCR 5481(June 10, 2005) [Expired]; and Notice of Emergency and Proposed Rulemaking published at 52 DCR 5771(June 17, 2005) [Expired]; and Notice of Emergency and Proposed Rulemaking published at 52 DCR 8964(October 7, 2005) [Expired]; and Notice of Emergency and Proposed Rulemaking published at 53 DCR 940(February 10, 2006) [Expired];Final Rulemaking published at 53 DCR 4290 (May 26, 2006); as amended by Notice of Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Notice of Final Rulemaking published at 57 DCR 12224, 12239 (December 24, 2010).

7 DCMR § 3163 RESERVED

7 DCMR § 3164 RESERVED

7 DCMR § 3165 RESERVED

7 DCMR § 3166 RESERVED

7 DCMR § 3167 RESERVED

7 DCMR § 3168 RESERVED

7 DCMR § 3169 RESERVED

7 DCMR § 3170 RESERVED

7 DCMR § 3171 RESERVED

7 DCMR § 3172 RESERVED

7 DCMR § 3173 RESERVED

7 DCMR § 3174 RESERVED

7 DCMR § 3175 RESERVED

7 DCMR § 3176 RESERVED

7 DCMR § 3177 RESERVED

7 DCMR § 3178 RESERVED

7 DCMR § 3179 RESERVED

7 DCMR § 3180 RESERVED

7 DCMR § 3181 RESERVED

7 DCMR § 3182 RESERVED

7 DCMR § 3183 RESERVED

7 DCMR § 3184 RESERVED

7 DCMR § 3185 RESERVED

7 DCMR § 3186 RESERVED

7 DCMR § 3187 RESERVED

7 DCMR § 3188 RESERVED

7 DCMR § 3189 RESERVED

7 DCMR § 3190 RESERVED

7 DCMR § 3191 RESERVED

7 DCMR § 3192 RESERVED

7 DCMR § 3193 RESERVED

7 DCMR § 3194 RESERVED

7 DCMR § 3195 RESERVED

7 DCMR § 3196 RESERVED

7 DCMR § 3197 RESERVED

7 DCMR § 3198 COMPUTATION OF TIME

3198.1 Any days required to be counted shall be counted commencing with the day after the date referenced in the rule.

3198.2 If the deadline for any activity falls on a Sunday, holiday, or a day that is normally a business day but on which the District government is otherwise closed, such as for snow or other emergency, the deadline will be continued to the next business day.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 52 DCR 5481(June 10, 2005) [Expired]; and Notice of Emergency and Proposed Rulemaking published at 52 DCR 5771(June 17, 2005) [Expired]; and Notice of Emergency and Proposed Rulemaking published at 52 DCR 8964(October 7, 2005) [Expired]; and Notice of Emergency and Proposed Rulemaking published at 53 DCR 940(February 10, 2006) [Expired];Final Rulemaking published at 53 DCR 4290 (May 26, 2006).

7 DCMR § 3199 DEFINITIONS

3199.1 When used in this chapter, the following terms shall have the following meanings:

Act -- Title XXIII of the District of Columbia Comprehensive Merit Personnel Act of 1978, effective March 3, 1979, D.C. Law 2-139, D.C. Official Code § 1-623.01, et seq. (2001).

Best practices -- practices that reflect well-established methods of adjustment for weighing evidence, consulting industry reference materials, seeking advice from medical consultants, and engaging in the other steps of adjustment commonly known in the Public Sector Workers’ compensation field.

Claim File -- all program documents, materials, and information, written and electronic, pertaining to a claim, excluding that which is privileged or confidential by law or custom within the Public Sector Workers' Compensation industry.

Controversion -- holding a claim in abeyance due to insufficient information to either accept or deny.

Eligibility Determination (ED) -- a decision concerning, or that results in, the termination, suspension or reduction of a claimant's existing Public Sector Workers’ compensation benefits, excluding de minimus modifications and corrections of technical errors that affect five percent (5%) or less of the claimant's monetary benefits.

Good Cause -- "excusable neglect," as defined in the Federal Rules of Civil Procedure, Rule 6(b)(2) and interpretive case law.

Initial Determination (ID) -- a decision regarding initial eligibility for benefits under the Act, including decisions to accept, deny, or controvert new claims, pursuant to this subchapter.

Medical opinion-- a statement from a physician, psychiatrist, psychologist or other acceptable medical source that reflects judgments about the nature and severity of an impairment, including: symptoms, diagnosis and prognosis, physical or mental restrictions, and what the employee is capable of doing despite his or her impairments.

Office of Risk Management (ORM) -- the agency within the Government of the District of Columbia that is responsible for the District of Columbia's Public Sector Workers’ Compensation Program or its designee.

Qualified health professional-- includes a surgeon, podiatrist, dentist, clinical psychologist, optometrist, orthopedist, neurologist, psychiatrist, chiropractor or osteopathic practicing within the scope of their practice as defined by state law. The term includes a chiropractor only to the extent that reimbursable services are limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist and subject to regulation by the Mayor.

Treating physician-- the physician, psychiatrist, psychologist, or other medical source who provided the greatest amount of treatment and who had the most quantitative and qualitative interaction with the employee.

History

SOURCE: Notice of Emergency and Proposed Rulemaking published at 52 DCR 5481(June 10, 2005) [Expired]; and Notice of Emergency and Proposed Rulemaking published at 52 DCR 5771(June 17, 2005) [Expired]; and Notice of Emergency and Proposed Rulemaking published at 52 DCR 8964(October 7, 2005) [Expired]; and Notice of Emergency and Proposed Rulemaking published at 53 DCR 940(February 10, 2006) [Expired];Final Rulemaking published at 53 DCR 4290 (May 26, 2006); as amended by Notice of Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Notice of Final Rulemaking published at 57 DCR 12224, 12239 (December 24, 2010).

7-32 ACCRUED SICK AND SAFE LEAVE

7 DCMR § 3200 PURPOSE AND SCOPE

PURPOSE AND SCOPE

The purpose of this Chapter is to establish standards and procedures for the implementation of the Act.

Unless otherwise required by law, all matters concerning the implementation and enforcement of the Act shall be determined in accordance with these regulations.

History

SOURCE: Final Rulemaking published at 57 DCR 5231 (June 18, 2010).

7 DCMR § 3201 PROVISION OF PAID LEAVE; AMOUNT OF PAID LEAVE

PROVISION OF PAID LEAVE; AMOUNT OF PAID LEAVE

An employee shall begin to accrue paid leave pursuant to the Act and this Chapter on the date the individual qualifies as an employee provided, that accrual shall not commence prior to November 13, 2008.

An employer employing one hundred (100) or more employees in the District of Columbia shall provide each employee not less than one (1) hour of paid leave for each thirty-seven (37) hours worked, not to exceed seven (7) days of paid leave per calendar year.

An employer employing from twenty-five (25) to ninety-nine (99) employees in the District of Columbia shall provide each employee with not less than one (1) hour paid leave for every forty-three (43) hours worked, not to exceed five (5) days of paid leave per calendar year.

An employer employing twenty-four (24) or fewer employees in the District of Columbia shall provide not less than one (1) hour of paid leave for every eighty-seven (87) hours worked, not to exceed three (3) days of paid leave per calendar year.

For purposes of subsections 3201.2- 3201.4, the number of employees employed by an employer shall be average number of monthly full-time equivalent employees it employed in a preceding calendar year. This number shall be computed by adding the total number of full-time equivalent employees employed in the District of Columbia at the beginning of each month of the preceding calendar year and dividing by 12.

The employment location of an employee shall be determined in accordance with the definition of the term “employee.”

History

SOURCE: Final Rulemaking published at 57 DCR 5231 (June 18, 2010).

7 DCMR § 3202 EXCEPTIONS TO CALCULATIONS OR PROVISION OF PAID LEAVE

EXCEPTIONS TO CALCULATION OR PROVISION OF PAID LEAVE

An employee who is exempt from overtime payment by reason of section 213(a)(1) of the Fair Labor Standards Act of 1938, approved June 25, 1938 (52 Stat. 1060; 29 U.S.C. § 201 et seq.) shall not accrue leave pursuant to this chapter for hours worked beyond a forty (40) hour work week.

An individual who works for an employer both as an employee and in a non-covered employment position shall accrue paid leave for the hours worked as an employee.

If the employee does not suffer a loss of income when absent from work for the number of days of paid leave provided in § 3201, the employer shall not be required to provide paid leave to the employee as would have been otherwise required by the Act.

History

SOURCE: Final Rulemaking published at 57 DCR 5231, 5232 (June 18, 2010).

7 DCMR § 3203 USES OF PAID LEAVE

USES OF PAID LEAVE

An employee may use paid leave for the following reasons:

An absence resulting from a physical or mental illness, injury, or medical condition of the employee;

An absence resulting from obtaining professional medical diagnosis or care or preventive medical care for the employee; or

An absence for the purpose of caring for a family member who has any of the conditions or needs for diagnosis or care described in paragraphs (a) and (b) of this subsection.

3203.2 An employee may also use paid leave for an absence if the employee or the employee’s family member is a victim of stalking, domestic violence, or sexual abuse and the absence is directly related to medical, social, or legal services pertaining to the stalking, domestic violence, or sexual abuse for the purposes of:

Seeking medical attention for the employee or the employee’s family member to treat or recover from physical or psychological injury or disability caused by the stalking, domestic violence, or sexual abuse;

Obtaining services for the employee or the employee’s family member from a victim services organization;

Obtaining psychological or other counseling services for the employee or the employee’s family member;

The temporary or permanent relocation of the employee or the employee’s family member;

Taking legal action, including preparing for or participating in any criminal or civil proceeding related to or resulting from the stalking, domestic violence, or sexual abuse; or

Taking other actions that could be reasonably determined to enhance the physical, psychological, or economic health or safety of the employee or the employee’s family member or the safety of those who work or associate with the employee.

History

SOURCE: Final Rulemaking published at 57 DCR 5231, 5232 (June 18, 2010).

7 DCMR § 3204 ACCESSING PAID LEAVE

ACCESSING PAID LEAVE

Only an employee may access paid leave.

Unused paid leave accrued by an employee during a 12 month period shall carry over annually. An employee shall not use in one year more than the maximum hours accrued pursuant to subsections §3201.2, §3201.3 and §3201.4 of this Chapter unless the employer permits otherwise.

Paid leave accrued pursuant to the Act which is unused at the termination or resignation of the employee shall not be reimbursed to the employee.

History

SOURCE: Final Rulemaking published at 57 DCR 5231, 5233 (June 18, 2010).

7 DCMR § 3205 LIMITATIONS ON USE OF PAID LEAVE

LIMITATIONS ON USE OF PAID LEAVE

An employee shall not use in any calendar year more paid leave accrued pursuant to the Act than the maximum number of hours that the employee may accrue annually pursuant to §3201 unless permitted to do so by the employer.

If mutually agreed to by both the employer and employee, an employee who chooses to work additional hours or shifts in the employer’s same or next pay period in lieu of hours or shifts missed shall not use leave accrued pursuant to the Act in those hours or shifts; provided, however, that the employer does not require the employee to work such additional hours or shifts.

History

SOURCE: Final Rulemaking published at 57 DCR 5231, 5234 (June 18, 2010).

7 DCMR § 3206 REQUIRED NOTICE TO EMPLOYEES

REQUIRED NOTICE TO EMPLOYERS

An employee shall provide at least ten (10) days prior written notice to his or her employer of the employee’s planned use of paid leave, if the employee is aware of the need to use such paid leave at least ten (10) days before the date on which the paid leave is to be used.

If an employee becomes aware of the need to use paid leave less than ten (10) days before the date on which the paid leave is to be used, the employee shall provide written notice to the employer of the need to use the paid leave on the day that the employee becomes aware of the need to use the paid leave or, otherwise as early as possible. If that day is not a business day for the employer, notice shall be given on the next business day.

If the need to use paid leave is not foreseeable, the employee shall make an oral request for paid leave prior to the start of the work shift for which the paid leave is requested.

If an emergency prevents the employee from making prior notification to the employer of the need to use paid leave, the employer shall be notified prior to the start of the next work shift or within 24 hour of the onset of the emergency, whichever occurs sooner.

An employee shall make a reasonable effort to schedule paid leave in a manner that does not unduly disrupt the operations of the employer. If paid leave is requested in a non-emergency situation, the employee shall consult with the employer regarding the date and time of the paid leave to be taken.

History

SOURCE: Final Rulemaking published at 57 DCR 5231, 5234 (June 18, 2010).

7 DCMR § 3207 FORM OF NOTICE TO EMPLOYERS

FORM OF NOTICE TO EMPLOYERS

The employer may prescribe a written notice form for the request of paid leave. Such form shall require only the employee’s name, employee identification number (if any), and minimal information needed (e.g., type of leave, or basic reason for leave) to show that the request comes within the Act’s coverage, and the date(s) and time of the paid leave to be taken.

The leave request form shall not be used as a substitute for medical certification, unless such use is designated by the employer.

If the employer prescribes a form, but the form is not reasonably available to the employee, the employee may provide written notice to the employer by setting forth in writing the information required by §3207.1.

If the employer has not prescribed a form, the employee may provide written notice to the employer by setting forth in writing the information required by §3207.1.

History

SOURCE: Final Rulemaking published at 57 DCR 5231, 5235 (June 18, 2010).

7 DCMR § 3208 CERTIFICATION OF LEAVE REQUEST

CERTIFICATION OF LEAVE REQUEST

3208.1 An employer may require that a request for the granting of paid leave for three (3) or more consecutive days be supported by a reasonable certification of the reason given by the employee for requesting the paid leave.

A reasonable certification may include:

A signed document from a health care provider affirming the illness of the employee or the employee’s family member;

A police report indicating that the employee or the employee’s family member was the victim of stalking, domestic violence, or sexual abuse;

A court order indicating that the employee or employee’s family member was the victim of stalking, domestic violence, or sexual abuse;

A signed written statement from a victim and witness advocate affirming that the employee or employee’s family member is involved in legal action or proceedings related to stalking, domestic violence, or sexual abuse. The signed statement shall include only the name of the employee or employee’s family member who is a victim and the date on which services were sought; or

A signed written statement from a victim and witness advocate, or domestic violence counselor affirming the employee or employee’s family member sought services to enhance the physical, psychological, economic health or safety of the employee or employee’s family member.

If the employer requires a certification, the certification shall be provided upon the employee’s return to work or within one business day thereafter.

History

SOURCE: Final Rulemaking published at 57 DCR 5231, 5235 (June 18, 2010).

7 DCMR § 3209 RELEASE OF INFORMATION

RELEASE OF INFORMATION

Nothing in the Act or this chapter shall require a health care professional to disclose information in violation of section 1177 of the Social Security Act, effective August 21, 1996 (110 Stat. 2029; 42 U.S.C. § 1320d-6) or the regulations promulgated pursuant to section 264(c) of the Health Insurance Portability and Accountability Act of 1996, effective August 21, 1996 (110 Stat. 2033; 42 U.S.C §1320d-2 note).

Information provided to an employer pursuant to §§ 3206, 3207, or 3208 shall not be disclosed by the employer, except when such disclosure is:

Requested or consented to by the employee;

Ordered by a court or administrative agency; or

Otherwise required by federal or local law.

History

SOURCE: Final Rulemaking published at 57 DCR 5231, 5236 (June 18, 2010).

7 DCMR § 3210 CARRYOVER OF PAID LEAVE

CARRYOVER OF PAID LEAVE

Unused paid leave accrued in one calendar year shall be carried over to the next calendar year.

An employee shall not use more paid leave in one year than the employee accrues pursuant to § 3102.2-4 of this Chapter, unless permitted to by the employer.

History

SOURCE: Final Rulemaking published at 57 DCR 5231, 5236 (June 18, 2010).

7 DCMR § 3211 PAYOUT OF PAID LEAVE

PAYOUT OF PAID LEAVE

3211.1 Accumulated paid leave shall not be reimbursed upon the discharge or resignation of an employee.

History

SOURCE: Final Rulemaking published at 57 DCR 5231, 5236 (June 18, 2010).

7 DCMR § 3212 EFFECT ON CURRENT COMPENSATED LEAVE POLICIES

EFFECT ON CURRENT COMPENSATED LEAVE POLICIES

An employer that has a paid leave policy, (for example, paid time off or universal leave) that gives the employee paid leave options to utilize at the employee’s discretion, which allow the accrual and usage of leave that are at least equivalent to the paid leave prescribed in the Act, shall not be required to modify that policy

An existing compensated leave policy shall be presumed to be equivalent to requirements of the Act if the policy allows the employee to:

Access and accrue compensated leave at the same rate or greater than the hours of leave provided in § 3201 of this Chapter; or

Use the compensated leave for the same purposes as those set forth in § 3203.

History

SOURCE: Final Rulemaking published at 57 DCR 5231, 5236 (June 18, 2010).

7 DCMR § 3213 POSTING REQUIREMENTS AND PENALTIES

POSTING REQUIREMENTS AND PENALTIES

The employer shall post and maintain in a conspicuous place a notice, prescribed and provided by the Mayor, which sets forth excerpts and summaries of the Act and contains information pertaining to the filing of complaints asserting violations of the Act.

The employer shall post the notice in English and in all languages spoken by its eligible employees with limited or no-English proficiency as defined in section 2(5) of the of the Language Access Act, effective June 19, 2004 (D.C. Law 15-167; D.C. Official Code § 2-1931(5)).

An employer who willfully fails to post a notice pursuant to this section shall be assessed a civil penalty of one hundred dollars ($100) per day for each day that the employer fails to post the notice; provided, that the total penalty shall not exceed five hundred dollars ($500) per violation.

An employer shall not be liable for failing to post a notice until thirty (30) days after the Mayor provides the notice required by section 10 of the Act to the employer.

History

SOURCE: Final Rulemaking published at 57 DCR 5231, 5237 (June 18, 2010).

7 DCMR § 3214 EFFECT ON EXISTING EMPLOYMENT BENEFITS

EFFECT ON EXISTING EMPLOYMENT BENEFITS

The provisions of the Act do not alter the obligation of an employer to comply with any collective bargaining agreement or any employment benefit or plan that provides paid leave rights greater than those established by the Act.

Subject to the provisions of section 13 of the Act and § 3216 of this Chapter, a written bona fide collective bargaining agreement shall not waive the paid leave requirements of the Act and this Chapter, unless such collective bargaining agreement provides at least three (3) paid days of leave.

History

SOURCE: Final Rulemaking published at 57 DCR 5231, 5237 (June 18, 2010).

7 DCMR § 3215 PROHIBITED ACTS

PROHIBITED ACTS

No employer or person acting on behalf of an employer shall interfere with, restrain, or otherwise deny the exercise or attempt to exercise of any right provided by the Act.

An employer shall not discharge or discriminate in any manner against an employee because the employee:

Opposes any practice by an employer made unlawful by the Act;

Files or attempts to file a claim or charge for violation of the Act;

Institutes or attempts to institute an proceeding under the Act;

Facilitates the institution of a proceeding under the Act;

Provides information or testimony in connection with an inquiry or proceeding related to the Act; or

Uses paid leave in accordance with the Act and this Chapter.

The Act shall not be construed to prohibit an employer from creating and enforcing a policy that prohibits the improper use of paid leave or that requires the more frequent certifications from an employee if there is evidence documenting a pattern of abuse of paid leave. A pattern of abuse may be evidenced by the following:

Consistent taking of paid leave without the notice required by the Act;

Consistent taking of leave on days for which vacation or annual leave have been denied;

A pattern of taking paid leave on days where the employee is scheduled to work a shift or perform duties perceived as undesirable, including high customer volume days; or

A pattern of taking paid leave on Mondays, Fridays, or the day immediately preceding or following holidays.

History

SOURCE: Final Rulemaking published at 57 DCR 5231, 5237 (June 18, 2010).

7 DCMR § 3216 COMPLAINT RESOLUTION

COMPLAINT RESOLUTION

A person who believes that any of the rights created by the Act has been improperly denied him or her may file a complaint with the Department of Employment Services in the form and manner prescribed by the Director of the Department. Complaints shall be filed within sixty (60) days after the event on which the complaint is based; provided that no sixty (60) day period shall commence until the employer has posted the notice required by section 10 of the Act and § 3213 of this Chapter

The Director shall review all complaints and shall investigate those complaints which the Director determines require investigation.

Complaints shall be investigated and resolved in an expeditious manner consistent with the nature of the complaint. The Director shall make all reasonable efforts to resolve all complaints within forty-five (45) business days of their filing and shall notify all parties if that time period cannot be met and shall make a good faith estimate of the expected resolution date.

In the course of investigating, resolving and deciding complaints, the Director shall have the authority to:

Investigate and ascertain the length of service, hiring dates, paid leave usage requests, certifications provided by employees, and any other issue relating to the rights created by the Act;

Require sworn written statements from employers and employees concerning the issues raised by the complaint; and

Conduct informal investigations, examinations, or meetings at which employers and employees appear, give sworn statements, and answer questions from the Director or the adverse party.

Following an investigation, the Director shall issue a decision concerning the complaint. Copies of the decision shall be served on each party at their last known address.

A party aggrieved by the Director’s decision may appeal the decision as provided in the District of Columbia Administrative Procedure Act, approved October 21, 1968 (82 Stat. 1204; D.C. Official Code § 2-501 et seq.).

Complaints shall be investigated and resolved in an expeditious manner consistent with the nature of the complaint.

The employer shall maintain records of the accrual, granting and denial of leave pursuant to the Act for a period of three years as generally provided in 7 DCMR § 911.

History

SOURCE: Final Rulemaking published at 57 DCR 5231, 5238 (June 18, 2010).

7 DCMR § 3217 PENALTIES

PENALTIES

Except as provided in § 3213.3, an employer who willfully violates the requirements of the Act shall be assessed a civil penalty in the amount of five hundred dollars ($500) for the first violation, seven hundred and fifty dollars ($750) for the second violation, and one thousand dollars ($1,000) for the third and any subsequent violations.

All penalties paid by employers shall be deposited into the General Revenue Fund of the District of Columbia.

History

SOURCE: Final Rulemaking published at 57 DCR 5231, 5239 (June 18, 2010).

7 DCMR § 3299 DEFINITIONS

When used in this Chapter, the term:

Act – means the Accrued Safe and Sick Leave Act of 2008, effective May 13, 2008 (D.C. Law 17-152; D.C. Official Code § 32-131.01 et seq.).

Day – means the length of the employee’s customary work day or work shift.

Director – means the Director of the District of Columbia Department of Employment Services, or the Director’s designee.

Discharge –means the involuntary severing of the employment relationship by the employer.

Domestic violence – means an intra-family offense as defined in D.C. Official Code § 16-1001(8).

Emergency – means an unexpected or unforeseen event or events which render an en employee unable to contact the employer or communicate the need to access leave accrued under the Act to the Employer as required by Sec. 3206.1, Sec. 3206.2 or Sec. 3206.3. An emergency shall include a personal illness, illness of a family member, or an act of domestic violence or sexual abuse as defined in the Act which requires the employee to seek medical treatment or law enforcement assistance for the employee or other persons covered by the Act.

Employee – means an individual who has been employed by the same employer for at least one (1) year without a break in service except for regular holiday, sick, or personal leave granted by the employer and who has worked at least one thousand (1,000) hours of service with such employer during the previous 12-month period. The term “employee” also includes an individual who meets the foregoing criteria and who is employed by the employer in more than one location and spends more than fifty percent (50%) of his or her working time for his or her employer in the District of Columbia or whose employment is based in the District of Columbia and who regularly spends a substantial part of his or her time working for the employer in the District of Columbia and does not spend more than fifty percent (50%) of his or her work-time working for the employer in any particular state. The term “employee” shall not include: (1) an independent contractor, (2) a student, (3) health care workers who choose to participate in a premium pay program, or (4) restaurant wait staff and bartenders who work for a combination of wages and tips.

Employer – means (including a for-profit or not-for-profit firm, partnership, proprietorship, sole proprietorship, limited liability company, association or corporation), or any receiver or trustee of such entity (including the legal representative of a deceased individual or receiver or trustee of an individual), who employs an employee. The term “employer” includes the District of Columbia government.

Non-covered employment position — means (1) an independent contractor, (2) a student, (3) a health care worker who choose to participate in a premium pay program, or (4) restaurant wait staff and bartenders who work for a combination of wages and tips.

Family member — means:

(1) A spouse, including the person identified by an employee as his or her domestic partner, as defined in section 2(3) of the Health Care Benefits Expansion Act of 1992, effective June 11, 1992 (D.C. Law 9-114; D.C. Official Code § 32-701(3));

(2) The parents of a spouse;

(3) Children (including step-children, foster children, and grandchildren);

(4) The spouses of children (including step-children, foster children, and grandchildren);

(5) Parents (including step-parents);

(6) Brothers and sisters (including step-brothers and sisters and half-brothers and sisters);

(7) The spouses of brothers and sisters (including step-brothers and sisters and half-brothers and sisters);

(8) A child who lives with the employee and for whom the employee permanently assumes and discharges parental responsibility; and

(9) A person with whom the employee shares or has shared, for not less than the preceding of twelve (12) months a mutual residence and with whom the employee maintains a committed relationship, as defined in section 2(1) of the Health Care Benefits Expansion Act of 1992, effective June 11, 1992 (D.C. Law 9-114; D.C. Official Code §32-701(1)).

Paid leave – means accrued hours of paid leave provided by an employer for use by an employee in hourly increments during an absence from work for any of the reasons specified in section 3(b) of the Act, for which the employee is paid at the same rate as if the employee were working.

Premium pay program – means a plan offered by an employer by which an employee may voluntarily elect to receive additional pay in lieu of benefits.

Restaurant wait staff and bartenders-means waiters, waitresses, counter personnel who serve customers, bus persons, server helpers, service bartenders and barbacks.

Sexual abuse – means an offense described in the Anti-Sexual Abuse Act of 1994, effective May 23, 1995 (D.C. Law 10-257; D.C. Official Code § 22-3001 et seq.).

Student – means a person employed by an employer who:

(1) (A) Is a full-time student as defined by an accredited institution of higher education;

(B) Is employed by the institution at which the student is enrolled;

(C) Is employed for less than 25 hours per week (the number of hours being determined based on the standard or usual work week of the employee); and,

(D) Does not replace an employee covered by the Act; or

(2) Is employed as part of the Year Round Program for Youth as established by the Department of Employment Services.

History

SOURCE: Final Rulemaking published at 57 DCR 5231, 5240 (June 18, 2010).

7-33 TRANSIT BENEFIT PROGRAMS

7 DCMR § 3300 PURPOSE AND SCOPE

3300.1 The purpose of this chapter is to establish standards and procedures for the implementation of Title III-A of the Sustainable DC Omnibus Amendment Act of 2014, effective December 17, 2014 (D.C. Law 20-142; D.C. Official Code § 32-151 et seq.) (the “Act”) and the Transportation Benefits Equity Amendment Act of 2020, effective June 24, 2020 (D.C. Law 20-113; D.C. Official Code, § 32-152.01 et seq.).

3300.2 Unless otherwise required by law, all matters concerning the implementation and enforcement of the Act shall be determined in accordance with these regulations.

History

SOURCE: Final Rulemaking published at 66 DCR 10529 (August 16, 2019); as amended by Final Rulemaking published at 69 DCR 001547 (February 25, 2022). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 3300

7 DCMR § 3301 TRANSIT BENEFIT PROGRAMS

3301.1 Pursuant to Section 302 of the Sustainable DC Omnibus Amendment Act of 2014, effective December 17, 2014 (D.C. Law 20-142; D.C. Official Code § 32-152 (2012 Repl. & 2018 Supp.)), every covered employer must provide at least one (1) of the transportation benefit programs listed in paragraphs (a), (b), or (c) of this subsection, in compliance with Section 132(f) of Internal Revenue Service (IRS) Code (26 USC § 132(f)), to each of its covered employees within ninety (90) calendar days after the publication of this rulemaking or for new employees thereafter.

(a) An employee pre-tax election transportation fringe benefits program that provides employees the option of pre-tax payment for:

(1) Transportation in a commuter highway vehicle in connection with travel between the employee’s residence and place of employment, at a benefit level equal to the maximum amount of such a fringe benefit that may be deducted from an employee’s gross income under the Internal Revenue Code (26 USC § 132(f));

(2) A transit pass, at a benefit level equal to the maximum amount of such a fringe benefit that may be deducted from an employee’s gross income in compliance with Section 132(f) of the Internal Revenue Code (26 USC § 132(f)); or

(3) Starting in 2026, bicycling benefits at a benefit level equal to the maximum amount of such a fringe benefit that may be deducted from an employee’s gross income in compliance with Section 132(f) of the Internal Revenue Code (26 USC § 132(f)).

(b) An employer-paid benefit program whereby the employer supplies, at the election of the employee, either a transit pass for the public transit system requested by the covered employee or reimbursement of vanpool or bicycling costs in an amount at least equal to the purchase price of a transit pass for an equivalent trip on a public transit system; or

(c) Employer-provided commuter transportation at no cost to covered employees in a shuttle, vanpool, or bus operated by or for the employer.

3301.2 Employer may provide both employer-paid benefit(s) and employee pre-tax election(s), but the total combined tax benefit shall not exceed the maximum benefit permitted under Section 132(f)(2) and (6) of the Internal Revenue Code (26 USC §§ 132(f)(2) and (6)).

3301.3 Benefits provided under this section shall be provided in a manner consistent with the requirements of Section 132(f) of the Internal Revenue Code (26 USC § 132(f)) and its implementing regulations.

History

SOURCE: Final Rulemaking published at 66 DCR 10529 (August 16, 2019). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 3301

7 DCMR § 3302 PENALTIES AND FINES

3302.1 Covered employers who fail to offer at least one (1) transportation benefit program to each covered employee as required by Subsection 3301.1 shall be subject to civil fines and penalties, pursuant to Section 302(b) of the Sustainable DC Omnibus Amendment Act of 2014, effective December 17, 2014 (D.C. Law 20-142; D.C. Official Code § 32-152(b) (2012 Repl. & 2018 Supp.)).

3302.2 The failure to offer at least one (1) transportation benefit program option to each covered employee is a Class 4 infraction pursuant to the Department of Consumer and Regulatory Affairs Civil Infractions Act of 1985, effective October 5, 1985 (D.C. Law 6-42; D.C. Official Code §§ 2-1801.01 et seq. (2016 Repl. & 2018 Supp.)) and 16 DCMR §§ 3200 and 3201. The fines under Class 4 infractions are as follows:

(a) For the first offense, $100;

(b) For the second offense, $200;

(d) For the fourth and subsequent offenses, $800.

3302.3 The amount of the fine imposed under Subsection 3302.2 shall be assessed against a covered employer for each covered employee to whom the employer fails to offer at any point during a calendar month at least one (1) transportation benefit program and shall be reassessed for each subsequent calendar month in which such failure continues to exist.

3302.4 The following persons shall be subject to civil fines and penalties pursuant to the Transportation Benefits Equity Amendment Act of 2020, effective January 24, 2020 (D.C. Law 23-113; D.C. Official Code § 32-151 et seq.) and the Department of Consumer and Regulatory Affairs Civil Infractions Act of 1985, effective October 5, 1985 (D.C. Law 6-42; D.C. Official Code § 2-1801.01 et seq. (2016 Repl. & 2018 Supp.)):

(a) A covered employer who fails to comply with the provisions of § 3307.1;

(b) A covered employer who fails to comply with the reporting requirement in § 3311; or

History

SOURCE: Final Rulemaking published at 66 DCR 10529 (August 16, 2019); as amended by Final Rulemaking published at 69 DCR 001547 (February 25, 2022). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 3302

7 DCMR § 3303 NOTICE REQUIREMENTS

3303.1 The Department shall post an electronic notification on its website that explains the requirements of the Act.

3303.2 Covered employers shall notify covered employees of the available transit benefit program using commercially appropriate means, such as email, internal documents (such as memos, newsletters, or bulletins), or conventional or electronic bulletin boards.

3303.3 Covered employers shall provide information to covered employees as to how they may apply for and receive the transit benefit and how to submit a complaint to the Department.

3303.4 Covered employers shall provide a point of contact for covered employees to obtain further information about the transit benefit.

3303.5 Covered employers shall provide commuter benefits documents to each covered employee as part of the employee benefits package or with the Notice of Hire form required by the Wage Theft Prevention Amendment Act of 2014, approved February 26, 2015 (D.C. Law 20-0157; D.C. Official Code §§ 32-1301 et seq.).

History

SOURCE: Final Rulemaking published at 66 DCR 10529 (August 16, 2019). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 3303

7 DCMR § 3304 CALCULATION OF NUMBER OF EMPLOYEES

3304.1 In determining whether it is a covered employer under this chapter, an employer shall use the greater of (1) the number of full-time and part-time employees as of December 31st of the previous year or (2) the average number of employees during the previous calendar year, to determine its number of employees.

History

SOURCE: Final Rulemaking published at 66 DCR 10529 (August 16, 2019). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 3304

7 DCMR § 3305 RECORDKEEPING REQUIREMENTS

3305.1 Covered employers shall maintain any documentation necessary to establish compliance with the requirements of the Act for a minimum of three (3) years.

3305.2 Covered employers shall be responsible for providing any documentation necessary to prove compliance with the Act to the Department.

History

SOURCE: Final Rulemaking published at 66 DCR 10529 (August 16, 2019). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 3305

7 DCMR § 3306 COMPLAINT PROCEDURES

3306.1 Covered employees may file complaints alleging violations of the Act with the Department.

3306.2

(a) A complaint shall include:

(1) A sworn allegation of a covered employer’s failure to provide a compliant transit benefit program;

(2) The complainant’s name, address, email, and telephone number;

(3) Pay stubs or relevant documents that demonstrate the violation; and

(4) Sufficient information to enable the Department to identify the covered employer through District records, such as the employer’s name, business address, telephone number, and email.

3306.3 Enforcement and adjudication of a failure to provide a transit benefit program shall be pursuant to the Department of Consumer and Regulatory Affairs Civil Infractions Act of 1985, D.C. Official Code §§ 2-1801.01 et seq.

History

SOURCE: Final Rulemaking published at 66 DCR 10529 (August 16, 2019). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 3306

7 DCMR § 3307 CLEAN-AIR TRANSPORTATION FRINGE BENEFIT: REQUIREMENTS

3307.1 Except as provided in § 3312, a covered employer that offers a parking benefit to an employee shall:

Offer the employee a Clean-air Transportation Fringe Benefit in an amount equal to or greater than the monthly market value of the parking benefit offered to the employee;

Pay to DDOT a Clean Air Compliance fee of $100 per month per employee who is offered a parking benefit; or

Implement a transportation demand management plan that meets the standards set forth in § 3309.

3307.2 A covered employee’s acceptance of the Clean-air Transportation Fringe Benefit shall constitute a refusal of the parking benefit offered by the covered employer.

3307.3 A covered employee shall not concurrently accept or use a Clean-air Transportation Fringe Benefit and a parking benefit offered by the covered employer.

History

SOURCE: Final Rulemaking published at 69 DCR 001547 (February 25, 2022). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 3307

7 DCMR § 3308 CLEAN-AIR TRANSPORTATION FRINGE BENEFIT: PROCEDURES

3308.1 An employee who accepts a Clean-air Transportation Fringe Benefit shall, using the Clean-air Transportation Fringe Benefit worksheet made available by DDOT, estimate the amount of the Clean-air Transportation Fringe Benefit that the employee will use each month and provide that estimate to his or her employer.

3308.2 An employee may amend the estimate provided to his or her employer in accordance with § 3308.1 not more than once every twelve (12) months.

3308.3 If the estimate provided pursuant to this section is less than the Clean-air Transportation Fringe Benefit offered to the employee pursuant to § 3307.1(a), the covered employer shall provide the employee with one of the following in an amount that, when combined with the estimate is equal to the Clean-air Transportation Fringe Benefit offered to the employee:

(a) Additional compensation;

(b) An increased contribution to the employee's health coverage;

History

SOURCE: Final Rulemaking published at 69 DCR 001547 (February 25, 2022). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 3308

7 DCMR § 3309 CLEAN-AIR TRANSPORTATION FRINGE BENEFIT: TRANSPORTATION DEMAND MANAGEMENT PLAN REQURIEMENTS

3309.1 To comply with § 3307.1(c), a covered employer shall submit to DDOT a proposed transportation demand management (TDM) plan, in a format provided by DDOT, which includes the following information:

The total number of employees at work locations within the District;

The number of employees currently receiving parking benefits subject to this chapter;

Results of a survey of the commute modes used by its employees, to include driving, carpooling, for-hire vehicles, public transportation, walking, and biking, that has been conducted in a manner acceptable to DDOT. For covered employers with:

Fewer than fifty (50) employees, survey results must comprise responses from at least ninety percent (90%) of employees;

Between fifty (50) and ninety-nine (99) employees, survey results must comprise responses from at least eighty-four percent (84%) of employees;

Between one hundred (100) and two hundred and forty-nine (249) employees, survey results must comprise responses from at least seventy percent (70%) of employees;

Between two hundred and fifty (250) and four hundred and ninety-nine (499) employees, survey results must comprise responses from at least fifty percent (50%) of employees;

Between five hundred (500) and nine hundred and ninety-nine (999) employees, survey results must comprise responses from at least thirty-seven percent (37%) of employees

One thousand (1000) employees or more, survey results must comprise responses from at least twenty percent (20%) of employees.

A plan that lists reasonable strategies and a timeline for reducing the number of employees’ commuter trips made by car by at least 10% from the previous year, until 25% or less of employees' commuter trips are made by car, including for-hire vehicles; and

Any other information DDOT deems necessary to evaluate the feasibility of a proposed TDM plan.

3309.2 DDOT shall review a submitted TDM plan and provide the covered employer with a determination within sixty (60) calendar days of receipt.

3309.3 If DDOT determines that the proposed TDM plan meets the requirements of this section, DDOT shall approve the proposed TDM plan.

3309.4 Within ninety (90) calendar days of the approval of its TDM plan, a covered employer shall provide DDOT with evidence demonstrating the employer’s implementation of the plan in accordance with § 3307.1(c). Satisfactory evidence may include proof of enrollment in WMATA’s SmartBenefits program, or an employer’s notifications to its employees concerning transit options and benefits.

3309.5 If DDOT determines that a proposed TDM plan does not meet the requirements of this section, DDOT shall provide the covered employer with a notice of disapproval that includes a brief description of the deficiencies in the plan, and an opportunity to amend and resubmit the proposed TDM plan within thirty (30) calendar days of the issuance of the notice.

3309.6 If DDOT determines that a proposed TDM plan that has been amended and resubmitted in accordance with § 3309.5 fails to meet the requirements of this section, the covered employer shall:

(a) Begin offering a Clean-air Transportation Fringe Benefit to employees; or

(b) Begin paying the Clean Air Compliance fee in accordance with § 3307.1(b).

3309.7 By January 15 of each year, a covered employer with an approved TDM plan shall submit to DDOT an annual data report, on a form provided by DDOT, on the actual commute mode share of the covered employer’s employees during the previous calendar year.

3309.8 DDOT shall audit a covered employer’s compliance with its approved TDM plan annually.

3309.9 If DDOT determines that a covered employer has failed to comply with its approved TDM plan, the covered employer shall have an additional one hundred and eighty (180) calendar days to comply with the requirements of the TDM plan for the previous year.

3309.10 A covered employer who submits a proposed TDM plan pursuant to this section shall not be subject to the requirements in § 3307.1 unless DDOT informs the covered employer that:

A proposed TDM plan that was amended and resubmitted in accordance with § 3309.5 failed to meet the requirements of this section;

The covered employer failed to submit an annual data report as required by § 3309.7;

After one hundred eighty (180) calendar days granted pursuant to § 3309.9, the covered employer failed to comply with its approved TDM plan for the previous year; or

The covered employer failed to implement an approved TDM plan within ninety (90) calendar days of written approval from DDOT.

History

SOURCE: Final Rulemaking published at 69 DCR 001547 (February 25, 2022). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 3309

7 DCMR § 3310 CLEAN-AIR TRANSPORTATION FRINGE BENEFIT: MARKET VALUE OF EMPLOYER-PROVIDED PARKING BENEFIT

3310.1 DDOT shall determine the market value of a Clean-air Transportation Fringe Benefit for each covered employer. The market value of a Clean-air Transportation Fringe Benefit shall be:

The median of the publicly-advertised monthly prices of parking available for rent to the public at any privately-owned parking facilities within one quarter (1/4) mile of the business premises;

If there is no privately-owned parking facility within one quarter (1/4) mile of the employee's place of work that rents parking to the public, the median of the publicly-advertised monthly prices of parking available for rent to the public at any privately-owned parking facilities within one half (1/2) mile of the business premises; or

If there is no privately-owned parking facility within one-half mile of the employee’s place of work that rents parking to the public, a sum of one hundred seventy five dollars ($175), which may be adjusted according to the most recent Consumer Price Index for All Urban Consumers in the Washington Metropolitan Statistical area, as published by the United States Bureau of Labor Statistics. DDOT shall publish the adjusted sum on its website.

3310.2 For purposes of this section, “parking facility” means a facility licensed pursuant to and compliant with Chapter 6 of Title 24 of the DCMR.

3310.3 The publicly-advertised monthly price of a particular privately-owned parking facility shall be determined by referencing published prices available online or in print that correspond to what an individual would pay for monthly access to the parking facility and shall not include personalized price quotes or special one-time or recurring discounts.

History

SOURCE: Final Rulemaking published at 69 DCR 001547 (February 25, 2022). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 3310

7 DCMR § 3311 CLEAN-AIR TRANSPORTATION FRINGE BENEFIT: EMPLOYER REPORTING OF PARKING BENEFITS

3311.1 Each covered employer shall submit to the Director of DDOT a report every two (2) years, with the first report to be submitted by January 15, 2023, that includes:

The total number of employees;

The number of employees:

Offered a parking benefit;

Using a parking benefit;

Offered a Clean-air Transportation Fringe Benefit;

Using a Clean-air Transportation Fringe Benefit; and

For whom the covered employer is paying to DDOT the $100 Clean Air Compliance Fee;

The market value of the Clean-air Transportation Fringe Benefit for the covered employer; and

Whether any of the exceptions in § 3312 apply to the covered employer, including:

If the exception in § 3312.1 applies, the date on which any owned parking spot was purchased by the employer;

If the exception in § 3312.2 applies, the date on which the current lease term will end, disregarding any contemplated lease extensions beyond the current term;

If the exception in § 3312.3 applies, the date on which the previously approved transportation demand management plan will expire; or

If the exception in § 3312.4 applies, the date on which the current Campus Plan expires, disregarding any contemplated term extensions.

History

SOURCE: Final Rulemaking published at 69 DCR 001547 (February 25, 2022). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 3311

7 DCMR § 3312 CLEAN-AIR TRANSPORTATION FRINGE BENEFIT: APPLICABILITY AND EXCEPTIONS

3312.1 A parking benefit offered by a covered employer who, before October 1, 2020, owned, and continues to own, the parking spot used by an employee as a parking benefit shall not be subject to the provisions of § 3307.

3312.2 A parking benefit offered by a covered employer who, before October 1, 2020, leases the parking spot used by an employee as a parking benefit shall not be subject to the provisions of § 3307 until the end of the current lease term, regardless of whether the lease agreement contemplated extension beyond the current lease term.

3312.3 A covered employer who, before October 1, 2020, is party to a transportation demand management (TDM) plan that was reviewed by DDOT, shall not be subject to the provisions of § 3307 until the end of the current term of the TDM plan, regardless of whether the TDM plan contemplated extension beyond the current term, or until October 1, 2025, whichever is earlier.

3312.4 A covered employer who, before October 1, 2020, is party to a Campus Plan approved pursuant to Subtitle X101 of Title 11 of the DCMR, shall not be subject to the provisions of § 3307 until the end of the current term of the Campus Plan, regardless of whether the Campus Plan contemplated extension beyond the current term, if the Campus Plan requires annual reporting to DDOT of:

(a) The current percentage, and year-over-year change in the percentage, of trips to campus that are made by car, including for-hire vehicles;

(b) Performance standards in the Campus Plan related to reducing the percentage of trips to campus that are made by car, including for-hire vehicles; and

(c) Policies that the covered employer will adopt to meet the performance standards in the Campus Plan related to reducing the percentage of trips to campus that are made by car, including for-hire vehicles.

History

SOURCE: Final Rulemaking published at 69 DCR 001547 (February 25, 2022). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 3312

7 DCMR § 3399 DEFINITIONS

3399.1 Act means Title III-A of the Sustainable DC Omnibus Amendment Act of 2014,

effective December 17, 2014 (D.C. Law 20-142; D.C. Official Code § 32-152).

Clean-air Transportation Fringe Benefit means the following benefits that are provided, in addition to compensation, by a covered employer to an employee:

(a) Transportation in a commuter highway vehicle, as that term is defined in Section 132(f)(5)(B) of the Internal Revenue Code (26 USC § 132(f)(5)(B)), if such transportation is in connection with travel between the employee’s residence and place of employment;

(b) Any transit pass, as that term is defined in Section 132(f)(5)(A) of the Internal Revenue Code (26 USC § 132(f)(5)(A)); and

(c) Any qualified bicycle commuting reimbursement, as that term is defined in Section 132(f)(5)(F)(i) of the Internal Revenue Code (26 USC § 132(f)(5)(F)(i)).

Commuter highway vehicle has the meaning set forth in Section 132(f)(5)(B) of the Internal Revenue Code (26 USC § 132(f)(5)(B)).

Covered employee means a full-time or part-time employee of a covered employer:

(a) Who performs at least fifty percent (50%) of his or her working time in the District of Columbia; or

(b) Whose employment is based in the District of Columbia and the employee performs a substantial amount of his or her work in the District of Columbia and less than fifty percent (50%) in any other state.

Covered employer means an employer with twenty (20) or more covered employees.

DDOT means the District Department of Transportation.

Department means the Department of Employment Services.

Employee includes any individual employed by an employer, except that this term shall not include:

(a) Any individual who, without payment and without expectation of any gain, directly or indirectly, volunteers to engage in the activities of an educational, charitable, religious, or nonprofit organization;

(b) Any lay member elected or appointed to office within the discipline of any religious organization and engaged in religious functions;

(d) An independent contractor.

Employer includes the District of Columbia government, any individual, partnership, general contractor, subcontractor, association, corporation, business trust, or any person or group of persons acting directly or indirectly in the interest of an employer in relation to an employee in the District of Columbia, but shall not include the United States Government.

Full-time employees include individuals who work thirty (30) hours or more per week, unless established otherwise by law.

Parking benefit means personal motor vehicle parking, on or within 0.5 miles of the business premises and located in the District, offered to an employee, in addition to compensation, either directly by the employer or through an employer subsidy, for which the employee pays nothing or less than market value. The term “parking benefit” does not include parking that is offered to an employee who is required to use a personal motor vehicle in the regular performance of his or her work.

Part-time employees include individuals who work less than thirty (30) hours per week, unless established otherwise by law.

Transit Pass has the meaning set forth in Section 132(f)(5)(A) of the Internal Revenue Code (26 USC § 132(f)(5)(A)).

Vanpool means a commuter highway vehicle.

History

SOURCE: Final Rulemaking published at 66 DCR 10529 (August 16, 2019); as amended by Final Rulemaking published at 69 DCR 001547 (February 25, 2022). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 3399

7-34 PAID LEAVE CONTRIBUTIONS

7 DCMR § 3400 EMPLOYER REGISTRATION

3400.1 Each covered employer with five (5) or more covered employees shall register through the online portal with the Department of Employment Services (DOES). Covered employers with fewer than five (5) covered employees who notify DOES that they do not have access to a computer may request to register via a paper form.

3400.2 DOES shall maintain a separate account for each covered employer and shall credit the account with all contributions paid by the covered employer after July 1, 2019. This account shall be maintained for accounting purposes only and shall have no bearing on the rights of covered employees to benefits under Chapter 35 (Paid-Leave Program Benefits).

3400.3 Each covered employer shall be able to update its account with information related to its business activities, such as street address, email address, telephone number, and business status; to submit its quarterly wage reports pertaining to covered employees; and make payments electronically. A covered employer shall notify DOES if it ceases to be a covered employer as defined by the Act for any reason, or if there is a change in the ownership of the business.

History

SOURCE: Final Rulemaking published at 66 DCR 7396 (June 21, 2019). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 3400

7 DCMR § 3401 OPT-IN FOR SELF-EMPLOYED INDIVIDUALS

3401.1 An individual who earns self-employment income (“self-employed individual”) may opt into the paid-leave program within the following applicable open enrollment periods:

(a) The first ninety (90) days of program commencement in 2019;

(b) Beginning with calendar year 2020, and in each calendar year thereafter, the months of November and December; or

3401.2 A self-employed individual shall submit a request to opt into the paid-leave program using the online portal or through an electronic or non-electronic format approved by DOES as provided on the DOES website.

3401.3 When submitting a request to opt into the paid-leave program, a self-employed individual shall provide, through the online portal or in another format approved by DOES as identified on the DOES website, a copy of one of the following documents:

(a) District of Columbia business license;

(b) District of Columbia occupational license; or

(c) Contracts, tax documents, billings from or payments to a District of Columbia address (including electronic billings), documents demonstrating that work was performed at a specific site within the District, or other documentation that demonstrates self-employment in the District.

3401.4 Before a self-employed individual opts into the paid-leave program, DOES shall provide notice to that individual regarding the manner in which contributions to the Universal Paid Leave Implementation Fund shall be collected from the individual.

3401.5 A self-employed individual who opts into the paid-leave program shall remain continuously enrolled in the program until he or she elects to opt out, as provided in Section 3402, or is removed, as provided in Section 3402.

3401.6 If a self-employed individual who has opted into the paid-leave program is also a covered employee employed by a covered employer, his or her paid-leave benefit payment amount shall be based on the combined wages from covered employment and self-employment income as provided for in Chapter 35 (Paid-Leave Program Benefits).

3401.7 Each self-employed individual shall be able to update his or her account on the online portal with information related to his or her business activities, such as street address, email address, telephone number, and business status; to submit the individual’s quarterly earnings reports; and make payments electronically.

History

SOURCE: Final Rulemaking published at 66 DCR 7396 (June 21, 2019). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 3401

7 DCMR § 3402 OPT-OUT OF SELF-EMPLOYED INDIVIDUALS

3402.1 A self-employed individual who previously opted into the paid-leave program may elect to opt out of the paid-leave program through the online portal or through an electronic or non-electronic format approved by DOES.

3402.2 A self-employed individual may opt out of the program only during an open enrollment period. Any election made during an open enrollment period shall take effect beginning on the first day of the following calendar quarter.

3402.3 Opting out of the program, removal from the program, and withdrawing from the program are distinguished as follows:

A self-employed individual shall be considered to have opted out of the paid-leave program if the self-employed individual had previously opted into the program and makes an election during an open enrollment period to no longer participate in the program while still earning self-employment income in the District of Columbia.

A self-employed individual may request that DOES remove him or her from the paid-leave program by notifying DOES that:

The individual has moved the primary place of business for all of the individual’s self-employed businesses out of the District of Columbia and intends to earn no self-employment income for any self-employed business in the District of Columbia within the next fifty-two (52) weeks;

The individual has accepted employment by a covered or non-covered employer and intends to earn no self-employment income in the District of Columbia within the next fifty-two (52) weeks;

In the next fifty-two (52) weeks, the individual intends to continue earning self-employment income, but not for work that is performed more than fifty percent (50%) of the time in the District of Columbia; or

The individual intends to earn no income within the next fifty-two (52) weeks.

“Withdrawal” from the program, as referred to in section 105 of the Act, is a term encompassing acts of both omission (failing to opt in) and commission (opting out) that result in an individual’s non-participation in the program. As applied to acts of omission, no more than one (1) act of withdrawing by an individual shall be counted by DOES prior to an individual’s first act of opting into the program and no more than one (1) act of withdrawing by any individual shall be counted by DOES between an individual’s act of opting out of the program and the individual’s subsequent act to opt back into the program. No act of omission or commission taken by a self-employed individual who is currently opted into the program shall be considered an act of withdrawal from the program, except for a valid request to opt out.

3402.4 The decision to remove a self-employed individual per Subsection 3402.3(b) rests solely with DOES.

(a) DOES may request additional documentation from the self-employed individual to support his or her request for removal from the program.

(b) If DOES determines that a self-employed individual should be removed, it shall inform the self-employed individual that he or she has been removed from the program by sending electronic notice via both the online portal and email to the self-employed individual’s last known email address, and by physical mail to the individual last known mailing address.

3402.5 As provided in section 105(b) and (c) of the Universal Paid Leave Amendment Act of 2016 (D.C. Law 21-264), a self-employed individual who previously opted out of or withdrew from the paid-leave program may opt into the program during an open enrollment period, provided that:

Beginning on January 1, 2020, the self-employed individual shall not be eligible to receive benefits pursuant to Chapter 35 (Paid-Leave Program Benefits) for the first year after enrolling (opting in for the first time) or reenrolling (opting in for a subsequent time) in the program; and

If a self-employed individual withdraws from the paid-leave program two (2) or more times, the individual shall be barred from reenrolling (opting in for a subsequent time) in the program for a period of five (5) years from the date of their second or any subsequent act of withdrawal from the program.

3402.6 A self-employed individual who was removed from the program for a reason set forth in Subsection 3402.3(b) may re-enroll in the program during an open enrollment period if he or she resumes self-employment in the District of Columbia as described in Section 3401. DOES reserves the right to request additional documentation from an individual applying for re-enrollment in the program.

3402.7 A self-employed individual who did not opt into the program during the first open enrollment period for which the individual was eligible to opt into the program, may opt into the program during an open enrollment period, but shall not be eligible to opt out of the program for three (3) years following the election to opt in.

History

SOURCE: Final Rulemaking published at 66 DCR 7396 (June 21, 2019); as amended by Final Rulemaking published at 70 DCR 001101 (January 27, 2023). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 3402

7 DCMR § 3403 WAGES

3403.1 For the purposes of implementation of the Act, the term “wages” shall have the same meaning as provided in Section 1(3) of the District of Columbia Unemployment Compensation Act, approved August 28, 1935 (49 Stat. 946; D.C. Official Code § 51-101(3)); provided, that the term “wages” also includes self-employment income earned by a self-employed individual who has opted into the paid-leave program established pursuant to this chapter.

History

SOURCE: Final Rulemaking published at 66 DCR 7396 (June 21, 2019). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 3403

7 DCMR § 3404 CONTRIBUTIONS BY COVERED EMPLOYERS TO THE UNIVERSAL PAID LEAVE IMPLEMENTATION FUND

3404.1 A covered employer shall contribute quarterly an amount equal to the percentage of the wages, as established pursuant to section 3404.10, for each of its covered employees, regardless of any other benefit programs offered by the employer, for services performed in the District of Columbia to the Universal Paid Leave Fund online or in another format approved by DOES.

3404.2 A covered employer who pays unemployment insurance to the District of Columbia for an employee during any quarter of a calendar year is presumed to be required to contribute to the Universal Paid Leave Implementation Fund for that employee for that quarterly period, unless the employer provides information consistent with the Act and regulations to rebut the presumption that the individual was a covered employee during that quarterly period.

3404.3 A self-employed individual who has opted-in to the paid-leave program shall contribute quarterly an amount equal to the percentage established pursuant to section 3404.10 of the total gross earnings from all of the self-employed businesses for which the individual performs at least fifty percent (50%) of their work in the District of Columbia. Payments shall be made to the Universal Paid Leave Fund online or in another format approved by DOES.

3404.4 The contributions payable pursuant to Subsection 3404.1 shall become due and be paid by each covered employer to DOES.

3404.5 Each covered employer shall, not later than the last day of the month following the close of each calendar quarter, make a report of and pay the contributions which shall have accrued with respect to wages paid to covered employees during the quarter.

DOES may permit covered employers to submit quarterly employee wage data from existing Unemployment Insurance reporting forms to determine contributions owed.

DOES may use the data collected from UC-30 forms to track wage history. An employer may upload a copy of those completed quarterly reports to the portal to meet its quarterly reporting requirements under this chapter.

By itself, an employee’s lack of Social Security number or tax identification number does not excuse an employer from paying contributions on behalf of that individual if he or she is otherwise a covered employee.

3404.6 DOES shall extend the time for filing quarterly reports for all covered employers and self-employed individuals for a period of thirty (30) calendar days if DOES finds that the purposes of the Act would be defeated by requiring timely filing of the quarterly reports.

3404.7 Where a covered employee performs services in employment for two (2) or more covered employers during the same period, each covered employer shall make contributions on the basis of each covered employer’s payments to the covered employee.

3404.8 If the contributions under this section are not paid when due, there shall be added thereto interest at the rate of one and a half percent (1 1/2%) per month or fraction thereof from the date they become due until paid. Interest shall not run against a court-appointed fiduciary when the contributions are not paid timely because of a court order.

3404.9 If contributions under this section are not paid, or wage reports are not filed on or before the first day of the second month following the close of the calendar quarters for which they are due, there shall be added a penalty of ten percent (10%) of the amount due. The penalty shall not be less than one hundred dollars ($100), and DOES may waive the penalty for good cause. The 10% penalty (or $100, whichever is greater) is a flat payment and does not accrue interest.

3404.10 (a) Before July 1, 2022, the required contribution rate for covered employers and self-employed individuals shall be sixty-two hundredths of a percent (0.62%); and

(b) Beginning July 1, 2022, the required contribution rate for covered employers and self-employed individuals shall be the lesser of:

(1) The special contribution rate established by the Chief Financial Officer pursuant to section 104a of the Act; or

(2) Sixty-two hundredths of a percent (0.62%).

History

SOURCE: Final Rulemaking published at 66 DCR 7396 (June 21, 2019); as amended by Final Rulemaking published at 69 DCR 001141 (February 11, 2022); as amended by Final Rulemaking published at 70 DCR 001101 (January 27, 2023). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 3404

7 DCMR § 3405 COLLECTION PROCEDURES

3405.1 At any time after a covered employer or self-employed individual fails to file required reports or pay owed contributions, DOES shall inform the covered employer or self-employed individual of such failing by sending electronic notice via both the online portal and email to the covered employer's or self-employed individual’s last known email address, and by physical mail by sending notification to the employer’s or self-employed individual’s last known mailing address. Such notice shall be on forms of general applicability and shall include information regarding the quarters for which reports were not filed and the amount of contributions, interest, and penalties owed. Such notice shall demand filing of unfiled reports and payment of all sums owed within thirty (30) calendar days from the date of the notice in the online portal. At DOES’ discretion, the notice may also inform the covered employer or self-employed individual of the option to enter into a payment plan described in Subsection 3405.11, if approved

3405.2 If an employer or self-employed individual disagrees with DOES’ determination of the failure to report or to pay contributions, the employer or self-employed individual may file an administrative appeal to DOES within the same thirty (30) day period provided for in Subsection 3405.1. The appeal shall be filed using the online portal, or another format approved by DOES, and shall contain evidence showing that reports have been filed or contributions have been paid, or an explanation for the employer’s or self-employed individual’s late action.

3405.3

(a) After considering the new evidence, DOES shall send notice within thirty (30) calendar days to the employer or self-employed individual through the online portal, and any other format approved by DOES as described in Subsection 3405.1, that, based upon this consideration of the submitted evidence:

(1) The determination is upheld as having been issued properly;

(2) The determination is set aside for further development and issuance of a new determination; or

(3) The determination is reversed on the basis that the Department of Employment Services (DOES) finds that the employer or self- employed individual filed reports and paid contributions as required, or established good cause for not doing so in a timely manner as described in subsection 3404.1.

(b) During the thirty (30) day period of DOES’ consideration of the administrative appeal, the thirty (30) day period provided for in Subsection 3405.1 will cease to run; however, the covered employer’s or self-employed individual’s other obligations under this chapter shall not be suspended. In the case of either (b) or (c), DOES shall notify the covered employer or self-employed individual that another thirty (30) day period as described in Subsection 3405.1 has begun from the date of this notice in the portal.

3405.4 Only one administrative appeal provided by this section shall be allowed for each report due or contribution owed.

3405.5 If the covered employer fails to respond to the notice described in Subsection 3405.1 by filing reports, paying contributions, or requesting an administrative appeal under Subsection 3405.2, DOES may impose interest and penalties, file liens, bring civil actions, or otherwise take any lawful action to compel the filing of reports and the payment of contributions, interest, and penalties. For self-employed individuals, DOES may terminate the individual’s enrollment in the program, in addition to imposing interest and/or penalties, if the self-employed individual fails to pay the requisite contributions.

3405.6 In cases where DOES determines that collection by levy, distraint, civil action, or other extraordinary process may be necessary, a Notice of Delinquency shall be served on the covered employer. The notice shall be delivered via the online portal, by email, and by registered mail, return receipt requested, to the covered employer's last known address. At the discretion of DOES, the notice may also be served in person by the Director's designee. In the case of a Notice served by mail which is refused or otherwise not deliverable, the Director shall serve a second Notice of Delinquency by first class mail, postage prepaid, at the covered employer's last known address. Such Notice of Delinquency shall be separate from and in addition to the general notice set forth in Subsection 3405.1.

3405.7 The Notice of Delinquency shall contain the following:

(a) A statement of the amount due for contributions, interest, and penalties;

A demand for payment of the amount due;

A statement that the covered employer has ten (10) business days from the date of the Notice of Delinquency in the online portal to pay the contributions, interest, and penalties owed;

A statement that at the end of the ten (10) business-day period, the Director may attempt to collect the amount due by any means authorized by the Act and this chapter and without further demand or notice;

In the case of self-employed individuals, a statement that at the end of ten (10) business days, the self-employed individual may have his or her enrollment in the program terminated; and

A statement that the covered employer or self-employed individual has the option to enter into a payment schedule with DOES, and instructions for pursuing this option.

3405.8 Within ten (10) business days after posting of the Notice of Delinquency on the online portal, the covered employer or self-employed individual shall file the required reports or pay in full the amount due for contributions, interest, and penalties.

3405.9 The requirement to file reports or pay the contributions, interest, and penalties owed with the ten (10) business-day period described in Subsection 3405.8 may be waived if, within the same ten (10) business-day period, the covered employer or self-employed individual agrees to a payment schedule, approved by DOES and in compliance with Subsections 3405.11, 12, and 13, by which the covered employer or self-employed individual will pay the amount due, together with interest and penalties, in regular installments.

3405.10 The ten (10) business-day period during which a covered employer or self-employed individuals must respond to a Notice of Delinquency shall be determined as follows:

(a) The period shall begin to run on the day after the date of electronic notification via the online portal and email;

(b) Legal holidays shall be counted except that if the last day for responding to a notice falls on a legal holiday, the time period shall end on the next day which is not a Saturday, Sunday, or legal holiday.

3405.11 The Director may authorize a covered employer or self-employed individual to pay delinquent amounts by regular monthly installments of such duration as will liquidate the delinquency in the shortest amount of time deemed reasonable by DOES. In determining whether to enter into an installment agreement, DOES shall consider:

(a) The amounts owed and age of the debt;

The covered employer's or self-employed individual’s past history of payment and compliance with any prior installment payment plans;

The covered employer's or self-employed individual’s financial condition and, particularly, the prospects that the covered employer or self-employed individual will be able to fulfill its obligations under the installment plan; and

Any other factors which may be brought to DOES’ attention which might affect the covered employer's or self-employed individual’s ability to meet its installment obligations.

3405.12 In any installment payment agreement, the covered employer or self-employed individual shall acknowledge that default in any installment payment or in any future filing of required reports or payment of contributions voids the agreement and the Director may institute any collection procedure or penalty permitted by the Act and this Chapter without further notice or demand to the covered employer.

3405.13 DOES may renegotiate an installment payment schedule if DOES determines that changed circumstances of the covered employer or self-employed individual warrant changes to the plan. However, renegotiation of an installment schedule may not extend the time period beyond twenty-four (24) months from the conclusion date of the original agreement.

3405.14 If a covered employer fails to respond to DOES’ Notice of Delinquency by paying delinquent contributions, interest, and penalties owed or by entering a payment schedule described in Subsection 3405.9, or if a covered employer fails to make another scheduled installment payment while the resolution of the delinquent payment is still pending, DOES, without further notice or demand to the covered employer, may attempt to collect the overdue payments by any method authorized by the Act and this chapter. In the case of self-employed individuals, DOES may terminate their enrollment in the program without further notice.

3405.15 A self-employed individual whose enrollment in the program has been terminated as described in section 3405.14 shall be ineligible for benefits until all amounts owed to DOES, including all penalties and assessed interest, are paid and received by DOES. Once all amounts owed are received, a self-employed individual shall be immediately reinstated in the program. Termination from the program does not excuse the individual from any requirements under this Chapter and does not have the effect of opting out of the program. During the period of termination, the individual remains liable for all contributions, penalties, interest, and all other requirements under this Chapter.

3405.16 DOES may levy a covered employer's bank account(s) by serving a Notice of Levy on the appropriate officer of the bank.

3405.17 DOES may levy a covered employer's contract(s) with any agency of the Government of the District of Columbia by serving a Notice of Levy on the official of said agency authorized to accept said Notice.

3405.18 DOES may levy upon property belonging to a covered employer by serving a Notice of Levy on the custodian of said property. Failure of the custodian to honor the levy shall result in the custodian's liability for the delinquent contributions, interest, and penalties.

3405.19 DOES shall cause the examination of any property seized pursuant to this section to determine its condition, and shall keep records of condition, storage location, and any other actions necessary to maintain the property prior to sale.

3405.20 A covered employer whose property has been seized pursuant to this section may redeem the property prior to the time it is sold by paying DOES the full amount of delinquent contributions, interest, and penalties owed and any costs incurred by DOES in seizing and storing the property or preparing the property for sale.

3405.21 No earlier than ten (10) calendar days following seizure of property pursuant to this section, DOES shall commence the process to sell the property. If DOES determines that adjournment of the sale will best serve the interest of the Universal Paid Leave Implementation Fund, DOES shall have the power to adjourn the sale until such time as DOES determines that the best interest of the Universal Paid Leave Implementation Fund would be served by continuation of the sale of the property.

3405.22

(a) The proceeds of any sale of property under this section shall be deducted from the balance due to DOES as follows:

(1) By first applying the proceeds to the costs of the sale, including costs of seizing, storing, advertising, and auctioneer fees;

(2) Then by applying the proceeds to delinquent penalties, interest, and contributions, in that order.

Any excess funds remaining after paragraph (a) of this subsection has been complied with shall be forwarded to the covered employer from whom the property was seized.

3405.23 DOES shall issue a Certificate of Sale to the purchaser of property at the sale and shall prepare ownership documents for property conveyed by sales made pursuant to Subsection 3405.16. All property shall be sold "as is" and "where is" without any guarantee or warranty express or implied. DOES shall sell only the right, title, and interest of the delinquent covered employer in the property, and the covered employer's interest will be offered subject to any prior outstanding mortgages, encumbrances, or other liens.

3405.24 Any monies collected by DOES as a result of assessing a penalty as described in Section 3405, and any accrued interest on an assessed penalty, shall be deposited into the Universal Paid Leave Implementation Fund.

History

SOURCE: Final Rulemaking published at 66 DCR 7396 (June 21, 2019); as amended by Final Rulemaking published at 70 DCR 001101 (January 27, 2023). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 3405

7 DCMR § 3406 ONLINE PORTAL

3406.1 All DOES communications with covered employers and self-employed individuals pursuant to the Act shall occur though the online portal, or through an electronic or non-electronic format approved by DOES.

3406.2 All covered employers and self-employed individuals shall be responsible for maintaining current contact information in the online portal or through another format approved by DOES.

3406.3 All covered employers and self-employed individuals will receive notifications related to any required actions and the status of claims for paid leave through the online portal or through another format approved by DOES.

3406.4 All covered employers and self-employed individuals shall be responsible for responding to any requests for additional information through the online portal or through another format approved by DOES.

3406.5 Covered employers with less than five (5) employees, and self-employed individuals who do not have access to a computer, may request paper communication from DOES.

3406.6 Notifications from DOES regarding late payments and reports as identified in Section 3405 shall be sent by mail to the latest known address in addition to the online portal.

History

SOURCE: Final Rulemaking published at 66 DCR 7396 (June 21, 2019). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 3406

7 DCMR § 3407 EMPLOYER RESPONSIBILITIES

3407.1 Each covered employer shall post and maintain a paid leave program notice provided by DOES at each worksite in a conspicuous place or places where notices to employees are customarily posted. Covered employers shall send the notice to remote covered employees to post at their individual worksites.

3407.2 Each covered employer shall also provide the paid leave program notice to employees at the following times:

(a) To an individual employee, within thirty (30) days of the employee’s hiring;

(b) Annually to all employees; and

(c) To an individual employee, at the time the covered employer receives direct notice from that employee that leave for a qualifying event is needed.

3407.3 Covered employers shall have the burden of demonstrating compliance with this subsection. A covered employer may establish compliance with Subsection 3407.2 by sending notice via email or similar digital transmission, provided that the covered employer retains email receipts or signed statements by covered employees acknowledging delivery.

3407.4 A covered employer who violates this notice requirement shall be assessed a civil penalty not to exceed one hundred dollars ($100) for each covered employee to whom individual notice was not delivered and one hundred dollars ($100) for each day that the covered employer fails to post the notice in a conspicuous place at each worksite.

3407.5 For purposes of Section 3407, worksite means a single physical location where business is conducted or where services or industrial operations are performed. In the case of employers engaged in activities which are physically dispersed, such as agriculture, construction, transportation, communications, and electric, gas and sanitary services, the notice required by this section shall be posted at the location to which covered employees report each day.

3407.6 The provisions of section 3407.1 through 3407.5 shall not apply to self-employed individuals.

History

SOURCE: Final Rulemaking published at 66 DCR 7396 (June 21, 2019); as amended by Final Rulemaking published at 70 DCR 001101 (January 27, 2023). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 3407

7 DCMR § 3408 RECORD KEEPING

3408.1 Covered employers are required to develop and maintain records pertaining to their obligations under the Act. Covered employers must keep the records for no less than three years and make them available for inspection, copying, and transcription by DOES representatives upon request. Records kept in computer form must be made available for transcription and copying. All records shall be kept confidential and only be released to parties other than authorized DOES representatives when required by law to do so.

These records shall include:

The name and Social Security number, or, if the Social Security number is unavailable, tax identification number, of each covered employee;

The beginning and ending dates of each pay period;

The wages paid for each pay period, including the cash value of other remuneration, gratuities, and tips and expenses incurred by each covered employee for which a deduction from wages is claimed;

Method of payment;

Earnings of employees;

The dates on which wages were paid;

Dates of parental, medical, and family leave taken by employees;

Copies of employee notices of leave furnished to the employer;

Copies of all written notices given to employees as required under the Act;

Documents describing employee benefits, including short- and long-term disability policies, sick leave, vacation leave, and other employer paid and unpaid leave policies and practices; and

Records of disputes between the employer and the employee regarding the Act.

History

SOURCE: Final Rulemaking published at 66 DCR 7396 (June 21, 2019). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 3408

7 DCMR § 3499 DEFINITIONS

3499.1 As used in this chapter:

“Act” – means the Universal Paid Leave Amendment Act of 2016, effective April 7, 2017 (D.C. Law 21-264; D.C. Official Code §§ 32-541.01 et seq.).

“Commencement of self-employment” – means:

(a) The date that a self-employed individual first receives self-employment income that is required to be reported as self-employment income to the Internal Revenue Service; or

(b) The date that a self-employed individual returns to earning self-employment income in the District of Columbia following a period of removal as described in Subsection 3402.3(b).

“Covered employee” – means an employee of a covered employer:

(a) Who spends more than fifty percent (50%) of his or her work time for that employer working in the District of Columbia; or

(b) Whose employment for the covered employer is based in the District of Columbia and who regularly spends his or her work time for the covered employer in the District of Columbia, and not more than 50% of his or her work time for that covered employer in another jurisdiction. Work time spent at another work site outside of the District of Columbia is incidental in nature; is temporary or transitory in nature; or consists of isolated transactions.

“Covered employer” – means:

(a) Any individual, partnership, general contractor, subcontractor, association, corporation, business trust, or any group of persons who directly or indirectly or through an agent or any other person, including through the services of a temporary services or staffing agency or similar entity, employs or exercises control over the wages, hours, or working conditions of an employee and is required to pay unemployment insurance on behalf of its employees by Section 3 of the District of Columbia Unemployment Compensation Act, approved August 28, 1935 (49 Stat. 947; D.C. Official Code § 51-103); provided, that the term “covered employer” shall not include the United States, the District of Columbia, or any employer that the District of Columbia is not authorized to tax under federal law or treaty; or

(b) A self-employed individual who has opted into the paid-leave program established pursuant to this chapter.

“Director” – means the director of DOES.

“DOES” – means the Department of Employment Services.

“Last known email address” – means the last email address provided by covered employer or a self-employed individual to the paid-leave program.

“Last known mailing address” – means the last mailing address provided by a covered employer or a self-employed individual to the paid-leave program.

“Online portal” – means the user-friendly system for the submission and management of forms and documents necessary to administer the paid-leave program.

“Open enrollment period” – means:

The first 90 days after the date on which DOES begins to collect contributions to the Universal Paid Leave Implementation Fund;

The first sixty (60) days following the commencement of self-employment in the District of Columbia; or

Beginning with calendar year 2020, and in each calendar year thereafter, the months of November and December.

“Paid-leave benefits” – means the monetary benefits provided pursuant to Chapter 35 (Paid-Leave Program Benefits).

“Self-employment income” – means gross income earned from carrying on a trade or business as a sole proprietor, an independent contractor, or a member of a partnership.

“Self-employed individual” – means an individual who carries on a trade or business as a sole proprietor, an independent contractor, or a member of a partnership.

“Special contribution rate” – means the projected employer contribution rate calculated by the Chief Financial Officer to be sufficient to maintain the then-existing level of benefits and continued solvency of the Universal Paid Leave Fund pursuant to section 104a of the Act.

“Universal Paid Leave Implementation Fund” means the Universal Paid Leave Implementation Fund established by Section 1152 of the Universal Paid Leave Implementation Fund Act of 2016, effective October 8, 2016 (D.C. Law 21-160; 63 DCR 10775 (August 26, 2016)).

“Wages” shall have the meaning as provided in Section 3403.

History

SOURCE: Final Rulemaking published at 66 DCR 7396 (June 21, 2019); as amended by Final Rulemaking published at 69 DCR 001141 (February 11, 2022). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 3499

7-35 PAID LEAVE BENEFITS

7 DCMR § 3500 ELIGIBILITY FOR PAID LEAVE BENEFITS

3500.1 An individual shall be eligible for paid-leave benefits under this chapter if:

(a) The individual experiences a qualifying event;

(b) The individual does not perform his or her regular and customary work because of the occurrence of the qualifying event; and

(1) (A) The individual is employed by a covered employer at the time of application;

(B) The individual has earned income as a covered employee of a covered employer during at least one (1) of the past five (5) completed quarters immediately preceding the qualifying event for which the paid leave claim is being submitted, or, if the claim is submitted between October 1, 2021, and July 25, 2022, the individual has earned income as a covered employee of a covered employer during at least one (1) of the past ten (10) completed quarters immediately preceding the qualifying event for which the paid leave claim is being submitted; and

(C) The employee’s wages were reportable to DOES under Chapter 34 (Paid Leave Contributions) by the covered employer(s); or

(A) The individual is currently a self-employed individual who is currently opted into and enrolled in the paid-leave program;

(B) The individual earned and reported to the Department of Employment Services (DOES) under Chapter 34 (Paid Leave Contributions) self-employment income during at least one (1) of the past five (5) completed quarters immediately preceding the qualifying event for which the paid leave claim is being submitted, or, if the claim is submitted between October 1, 2021, and July 25, 2022, then the individual earned and reported to DOES under Chapter 34 self-employment income during at least one (1) of the past ten (10) completed quarters immediately preceding the qualifying event for which the paid leave claim is being submitted;

(C) The individual is in good standing with the program and has no past-due contributions for self-employment income earned in previous completed quarters; and

(D) The individual earned self-employment income for work performed more than fifty percent (50%) of the time in the District of Columbia during some or all of the fifty-two (52) calendar weeks immediately preceding the qualifying event for which paid leave is being taken.

History

SOURCE: Final Rulemaking published at 67 DCR 3997 (April 10, 2020); as amended by Final Rulemaking published at 69 DCR 001141 (February 11, 2022). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 3500

7 DCMR § 3501 SUBMITTING A CLAIM FOR PAID-LEAVE BENEFITS

3501.1 An applicant shall submit a claim for paid-leave benefits using the online portal, or an electronic or non-electronic format approved by DOES.

3501.2 An applicant may submit a claim for one (1) of the following four (4) types of qualifying paid leave:

(a) Qualifying family leave;

(b) Qualifying medical leave;

(d) Qualifying pre-natal leave.

3501.3 No claim submitted before the date of the occurrence of a qualifying leave event shall be approved by DOES.

3501.4 Benefits for payable dates that occurred before the date on which the claim was filed shall be allowed under the following conditions:

(a) No benefits shall be payable for leave dates taken before the occurrence of a qualifying event.

(b) Benefits for which an individual would otherwise be eligible under this Chapter shall be payable for leave dates that occurred before the date on which the individual submitted the claim for paid leave benefits when:

The requested leave dates fall no more than thirty (30) days before the date on which the individual filed a claim for benefits; and

The claim was filed no more than thirty (30) days after the occurrence of the qualifying event.

(c) Benefits for which an individual would otherwise be eligible under this Chapter shall be payable for leave dates that occurred before the date on which the individual submitted the claim even when the individual submitted the claim more than thirty (30) days after the occurrence of the qualifying event, provided that exigent circumstances prevented the individual or the individual’s authorized representative from filing a claim for benefits in fewer than thirty (30) days after the occurrence of the qualifying event.

(d) When an applicant believes that an exigent circumstance exists, the applicant or the applicant’s authorized representative shall provide with the claim evidence of the exigent circumstance and the date(s) during which the exigent circumstances prevented the applicant or the applicant’s authorized representative from submitting a claim for benefits.

(e) Based on the evidence provided by the applicant or the applicant’s representative (and any supplemental evidence requested by DOES and provided by the applicant or the applicant’s representative), DOES shall determine whether exigent circumstances existed that prevented the applicant or applicant’s representative from filing a claim for benefits for a certain period of time. If DOES determines that exigent circumstances existed, DOES shall then determine the date on which the exigent circumstances no longer prevented the applicant or the applicant’s authorized representative from submitting a claim for benefits.

(f) When DOES finds that exigent circumstances existed that prevented the applicant or applicant’s representative from filing a claim for benefits for a certain period of time, and a claim is ultimately submitted after that period of time, DOES shall approve the resulting claim for benefits for payable dates that occurred before the date on which the claim was filed only when the claim is filed no more than thirty (30) days after the date on which the exigent circumstances no longer prevented the applicant or the applicant’s authorized representative from submitting a claim for benefits.

(g) Even when exigent circumstances existed that prevented the applicant or applicant’s representative from filing a claim for benefits for a certain period of time, no benefits shall be approved for leave dates that occurred more than three hundred and sixty-five (365) days before the claim for benefits was filed.

(h) Nothing in this section shall be construed to limit an applicant’s right to file a claim for benefits for leave dates that occur on or after the date on which the claim was filed.

3501.5 No benefits shall be payable for qualifying parental leave more than fifty-two (52) calendar weeks after the qualifying parental leave event.

3501.6 When submitting a claim for paid-leave benefits, an applicant shall provide the following information through the online portal, or an electronic or non-electronic format as approved by DOES:

The following three (3) elements demonstrating the applicant’s identity:

The applicant’s name;

Date of birth; and

One of the following:

Social security number; or

Individual taxpayer identification number.

(b) Contact information, including the applicant’s mailing address, telephone number, and email address;

(d) If the paid leave will be taken continuously, then the elements set forth in Subsection 3506.4;

(e) If the paid leave will be taken intermittently, then the elements set forth in Subsection 3506.5;

(f) The specific future dates, or, in exigent circumstances pursuant to § 3501.4, the past dates, for which paid leave is being sought;

(g) For covered employees, the name, business address, telephone number, and email address of the applicant’s supervisor or other party with knowledge of the applicant’s employment at the covered employer and who bears at least some responsibility for the terms and conditions of the individual’s employment;

(h) A signed affirmation certifying that the information provided in support of the claim for paid-leave benefits is true and accurate; and

(i) (1) For a paid medical leave claim:

(A) Proof of a qualifying medical leave event, including medical documentation signed by the health care provider that certifies the diagnosis or occurrence of a serious health condition;

(B) The expected duration of the condition certified by the health care provider and based on industry standards used by health care professionals to identify diagnoses of medical conditions and treatments; and

(C) A form signed by the applicant authorizing the individual’s health care provider to provide medical documentation and/or additional information necessary to process the claim for paid leave.

(2) For a paid family leave claim:

(A) Proof of a qualifying family leave event, including medical documentation signed by the health care provider that certifies the diagnosis or occurrence of a serious health condition of a family member;

(C) An affirmation that the applicant will be taking the leave in order to provide care or companionship for the family member with a serious health condition;

(D) A statement of the relationship of the family member needing care to the applicant, and proof of such relationship, which may be established by a signed affirmation form promulgated by DOES or other documentation approved by DOES;

(E) A description of the care or companionship to be provided by the applicant to the family member; and

(F) If requested by DOES, a form signed by the family member authorizing the family member’s health care provider to provide medical documentation and/or additional information to DOES necessary to process the claim for paid leave.

(3) For a paid parental leave claim, proof of a qualifying parental leave event, which shall be established by:

(A) A birth certificate;

(B) A court document;

(D) A document issued by the health care provider of the child;

(E) A document from the adoption or foster care agency involved in the placement that confirms the placement and date of placement;

(F) A letter signed by the attorney representing the prospective adoptive parent that confirms the placement and date of placement;

(G) An IR-3 immigrant visa, or a successor immigrant visa, for the child issued by the United States Citizenship and Immigration Services;

(H) A hospital admission form associated with delivery; or

(I) Another document approved by DOES for this purpose.

(4) For a paid pre-natal leave claim, proof of a diagnosis of pregnancy, certified by a health care provider and containing the following elements:

(A) Contact information for the health care provider, including the name, address, telephone number, and email address of the health care provider;

(B) Medical license information for the health care provider;

(C) The date the health care provider first confirmed the patient’s pregnancy or the first date on which treatment was provided for the pregnancy, whichever came first; and

(D) The health care provider’s estimate of the expected due date of the applicant’s baby.

3501.7 For paid medical leave claims or paid family leave claims, applicants shall also include a medical certification. The medical certification must be completed by a health care provider. The applicant shall bear the cost, if any, charged by the health care provider for completing the certification. The medical certification shall include the following information:

(a) Contact information for the health care provider, including the name, address, telephone number, and email address;

(b) Medical license information for the health care provider;

(d) The expected duration of the serious health condition;

(e) A physician’s opinion as to the employee’s (or, in the case of family leave, the family member’s) ability, and the expected duration of any inability, to work, attend school, or perform other regular daily activities due to the serious health condition, treatment of the serious health condition, or recovery from the serious health condition;

(f) If family leave, the type of care or companionship required by the family member, and the expected frequency and duration of the leave that is required for the applicant to provide that care to the family member; and

(g) A summary of the medical condition.

3501.8 (a) DOES may, to the extent necessary to administer the paid-leave program

under the Act and to the extent consistent with federal and District law, seek records from the applicant that are deemed confidential under federal or District law.

(b) If an applicant does not consent to the disclosure of information necessary to process a claim or to determine eligibility, an individual’s claim for paid-leave benefits may be denied.

(c) All records shall be kept confidential by DOES and may only be released to parties other than authorized DOES staff when such release is required by law. Information contained in the records pertaining to an individual under this chapter shall be confidential and not open to public inspection, other than to public employees in the performance of their official duties, pursuant to Section 106(h) of the Act (D.C. Official Code § 32–541.06(h)).

3501.9 Any applicant filing a new claim for paid leave shall be advised at the time of filing the claim that:

Paid-leave benefits may be subject to federal, state, and local income taxes; and

The applicant is responsible for complying with applicable federal, state, and local tax laws.

3501.10 DOES may require that the applicant obtain additional medical documentation if:

(a) The applicant requests an extension of leave or a different type or frequency of leave, beyond what the applicant requested in his or her initial application for the qualifying leave event; or

(b) DOES obtains new information which causes it to doubt the validity of the applicant’s stated reason for the leave or the validity of the medical documentation.

3501.11 If the eligible individual’s status as an adoptive or foster parent ends while an application for paid parental leave is pending or while the eligible individual is currently receiving paid-leave benefits based on their status as an adoptive or foster parent, the applicant or eligible individual shall notify DOES within ten (10) business days of the end of the status through the online portal or an electronic or non-electronic format approved by DOES. The individual shall not be eligible for parental leave benefits payable beginning on the date on which the individual’s status as an adoptive or foster parent ended. An individual who submitted an initial application for parental leave benefits in good faith and whose status as an adoptive or foster parent ended during an open claim shall not be required to repay benefits payable for dates before the date of the end of the status as an adoptive or foster parent.

3501.12 For qualifying family leave, if the family member to whom the eligible individual provides care or companionship dies or recovers to the extent that the individual would no longer be eligible for family leave benefits under this chapter, the eligible individual shall notify DOES within ten (10) business days of the status change through the online portal or an electronic or non-electronic format approved by DOES. The individual shall not be eligible for family leave benefits payable beginning on the date on which the family member’s status changed.

3501.13 DOES shall permit authorized representatives to file and manage claims on behalf of applicants. In order to be designated as an authorized representative, an individual or entity must submit appropriate legal documentation sufficient to establish bona fide legal authority to represent the applicant. Such documentation may include a court order, proof of designation as a power of attorney, or other documentation approved by DOES.

3501.14 (a) An applicant may have more than one (1) open claim at a time, provided that the simultaneously open claims are for different qualifying events.

(b) The multiple qualifying events may be within the same type of qualifying event; for example, there may be two (2) open qualifying family leave claims or two (2) open qualifying medical leave claims for an individual at a time.

3501.15 During an open claim, an applicant may request a continuation of leave for the claim. A continuation of leave occurs when an applicant requests and is approved for a new last payable date of the claim that is later than the existing last payable date of the claim. DOES shall process the request for continuation of leave in a manner consistent with the provisions of this chapter.

3501.16 During an open claim, an applicant may request a reduction in leave for the claim. A reduction of leave occurs when an applicant requests and is approved for a new last payable date of the claim that is sooner than the existing last payable date of the claim. DOES shall process the request for reduction of leave in a manner consistent with the provisions of this chapter.

3501.17 Unless an applicant requests a continuation of leave pursuant to Subsection 3501.14, a claim shall be considered a closed claim after the last payable date.

History

SOURCE: Final Rulemaking published at 67 DCR 3997 (April 10, 2020); as amended by Final Rulemaking published at 69 DCR 001141 (February 11, 2022); as amended by Final Rulemaking published at 70 DCR 001101 (January 27, 2023). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 3501

7 DCMR § 3502 PROCESSING CLAIMS FOR PAID LEAVE

3502.1 Within ten (10) business days after the filing of a claim for paid-leave benefits, a DOES claims examiner shall:

(a) Notify the applicant of DOES’s determination of eligibility or ineligibility for the type of paid-leave benefits sought; or

(b) Issue a provisional denial of the claim and provide an explanation of the need to submit additional information for DOES to process the claim.

3502.2 Within three (3) business days after the filing of a claim for paid-leave benefits, a DOES claims examiner shall:

Notify the current covered employer of the filing of a claim by the applicant; and

Request from the employer:

The employment status of the applicant;

The last day worked by the applicant;

(3) Which type of leave from among the options described in subsection 3501.2 that the employee requested from the employer pursuant to the notice described in section 3509; and

(4) If applicable, whether the employer agrees with the employee’s self-described workweek provided pursuant to Subsection 3506.5(b)(1).

3502.3 The covered employer shall submit the requested information, or an attestation that the applicant was or is not an employee of the employer, within four (4) business days after receipt of the request from the claims examiner. If the covered employer fails to provide the requested information within four (4) business days, the claim for paid leave shall be processed using the available information; provided that if the covered employer later files additional information, DOES may re-process the claim, taking into account the additional information.

3502.4 (a) If DOES requires additional information from an applicant to process a claim, and the information cannot be obtained within the ten (10)-day processing period provided in Subsection 3502.1, DOES shall issue a provisional denial of the claim and provide a description of the missing information to the applicant.

(b) If the applicant provides the additional information in response to DOES’ request for additional information within ten (10) business days of the date of the provisional denial, DOES shall reprocess the claim taking into account the additional information.

(c) If the applicant does not provide additional information in response to DOES’ request for additional information within ten (10) business days of the date of the request, the determination of denial shall be final.

(d) A provisional denial pursuant to this subsection shall be considered an official determination for the purposes of appeals pursuant to Sections 3511 and 3512.

3502.5 For qualifying family leave, qualifying medical leave, and qualifying pre-natal leave, the claims examiner shall first determine an applicant’s tentative eligibility based on non-medical factors supported by documentation submitted to establish the applicant’s identity, employment history, and, if applicable, familial relationship.

3502.6 After establishing tentative eligibility for qualifying family leave or qualifying medical leave, the claims examiner shall review the medical evidence for eligibility. The medical evidence shall take the form of proof of a qualifying event provided by the eligible individual, health care provider, and the qualified family member, if applicable. This evidence shall be reviewed by the claims examiner in accordance with the International Classification of Diseases, Tenth Revision (ICD-10), or subsequent revisions by the World Health Organization to the International Classification of Diseases.

3502.7 If DOES determines that additional information is not required and makes an initial determination on eligibility for paid-leave benefits, DOES shall issue a notification of the initial determination:

(a) To both the eligible individual and the covered employer that includes:

(1) A statement as to whether the claim for paid-leave benefits has been approved or denied;

(2) If the claim was approved:

The start date for the payment of paid-leave benefits;

Whether the leave will initially be taken continuously or intermittently, and, if intermittently, the scheduled days on which benefits will be payable;

The expected end date for paid-leave benefits, given the current payment schedule elected by the eligible individual; and

If the individual opted to instruct DOES to disclose the weekly benefit amount, and, if applicable, the equivalent daily benefit amount, the notification shall include the individual’s approved weekly benefit amount, and, if applicable, the equivalent daily benefit amount.

(b) To the eligible individual in private communication:

(1) If the claim was approved, the approved weekly benefit amount, and, if applicable, the equivalent daily benefit amount;

(2) If the claim was denied, the reason(s) for the denial; and

(3) Regardless of whether the claim was approved or denied, a description of the process to file an appeal with the DOES Administrative Appeals Division or the Office of Administrative Hearings.

3502.8 By default, DOES will not include in the notification described in Subsection 3502.7(a) the eligible individual’s approved weekly benefit amount, or, if applicable, the equivalent daily benefit amount. An eligible individual may choose to instruct DOES to disclose the benefit amount to the employer in the initial determination. However, regardless of whether the individual makes such an election, any information described in Subsection 3502.7(b) provided by DOES to the individual may be shared by the individual with the covered employer or other entities for any purpose, including allowing the covered employer or other entities to coordinate their paid-leave benefits with the benefits provided by this chapter. Covered employers or other entities may require that such information be shared by the individual in order for benefits provided by the covered employer or other entity to be paid to the individual.

History

SOURCE: Final Rulemaking published at 67 DCR 3997 (April 10, 2020); as amended by Final Rulemaking published at 69 DCR 001141 (February 11, 2022). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 3502

7 DCMR § 3503 CALCULATION OF WEEKLY BENEFIT AMOUNT

3503.1 Subject to other provisions in this chapter, including but not limited to Subsection 3503.2 and Sections 3504 and 3513, DOES shall calculate the weekly paid-leave benefit amount to which an eligible individual is entitled pursuant to the following procedures:

The wages used to calculate the weekly benefit amount shall be limited to wages reported and paid to the covered employee by covered employers; provided, that “wages” also includes reported self-employment income.

The weekly benefit amount shall be calculated in the following manner (which provides a higher wage replacement for low wages (below the formula bend point) in comparison to high wages (above the formula bend point)):

For claims submitted before October 1, 2021, and for claims submitted after July 25, 2022, DOES shall determine the total amount of all reported covered wages, including any reported self-employment income, for each of the five (5) completed calendar quarters before the applicant’s qualifying event. For claims filed between October 1, 2021 and July 25, 2022, DOES shall determine the total amount of all reported covered wages, including any reported self-employment income, for each of the ten (10) completed calendar quarters before the applicant’s qualifying event. Only completed quarters shall be considered in calculating the weekly benefit amount. The quarters are as follows: January 1 to March 31; April 1 to June 30; July 1 to September 30; October 1 to December 31.

For claims submitted before October 1, 2021, and for claims submitted after July 25, 2022, the quarter with the lowest total earnings in the five (5) completed calendar quarters before the applicant’s qualifying event shall be discarded for purposes of the benefit calculation. If multiple quarters have the same total earnings, and those quarters with identical earnings are the lowest-earning quarters, only one (1) of the quarters with identical earnings shall be discarded. For claims filed between October 1, 2021 and July 25, 2022, the six (6) quarters with the lowest total earnings in the ten (10) completed calendar quarters before the applicant’s qualifying event shall be discarded for purposes of the benefit calculation. If multiple quarters have the same total earnings, and those quarters with identical earnings are the lowest-earning quarters, a maximum of six (6) such quarters with identical earnings shall be discarded.

The total earnings in the four (4) remaining quarters with the highest total earnings shall then be added together. This sum shall be divided by fifty-two (52) to arrive at the average weekly wage.

The resultant average weekly wage shall then be compared with the formula bend point to determine the applicable formula to be used to calculate the weekly benefit amount.

For the purpose of this subsection, the formula bend point is defined as the District’s hourly minimum wage multiplied by forty (40), then multiplied by one point five (1.5).

The applicable benefit formula for the weekly benefit amount shall be as follows:

If the average weekly wage is less than or equal to the formula bend point, then the average weekly wage shall be multiplied by nine-tenths (0.9). The resulting product shall be the weekly benefit amount, subject to Subsection 3503.2.

If the average weekly wage is greater than the formula bend point, then the following benefit formula shall be used:

(i) The amount of the formula bend point shall be subtracted from the average weekly wage;

(ii) The resultant difference shall be multiplied by five-tenths (0.5);

(iii) This product shall be added to the following: the amount of the formula bend point multiplied by nine-tenths (0.9);

(iv) This sum shall be the weekly benefit amount, subject to Subsection 3503.2.

(c) If an eligible individual has wages from multiple covered employers or income from self-employment, the wages from these multiple sources in each separate quarter shall be combined to determine the eligible individual’s average weekly wage calculated pursuant to paragraph (b).

(d) The weekly benefit amount calculated according to this section, if not a multiple of one dollar ($1.00), shall be rounded to the nearest dollar amount.

3503.2 (a) No eligible individual shall be entitled to payment of paid-leave benefits at a rate in excess of the maximum weekly benefit amount.

(b) Before October 1, 2021, the maximum weekly benefit amount shall be one thousand dollars ($1,000).

(c) DOES shall adjust the maximum weekly benefit amount annually, to take effect on October 1, 2021, and on October 1 of each successive year, as provided in section 104(g)(6) of the Act (D.C. Official Code § 32-541.04(g)(6)).

History

SOURCE: Final Rulemaking published at 67 DCR 3997 (April 10, 2020); as amended by Final Rulemaking published at 69 DCR 001141 (February 11, 2022). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 3503

7 DCMR § 3504 WAITING PERIOD FOR BENEFITS

3504.1 After the occurrence of a qualifying event, an eligible individual shall not be entitled to paid-leave benefits payable under this chapter until after the eligible individual has waited seven (7) calendar days.

3504.2 No benefits shall be payable during the seven (7) calendar-day waiting period.

3504.3 The seven (7) calendar-day waiting period shall begin to run on the first day of the qualifying event.

3504.4 Regardless of the number of qualifying events for which an eligible individual files a claim for paid-leave benefits, he or she shall only have one (1) waiting period of seven (7) calendar days during and for which no benefits are payable within a fifty-two (52) calendar-week period.

3504.5 The seven (7) calendar-day waiting period shall not count toward the number of workweeks of paid-leave benefits that an eligible individual may receive.

3504.6 Claims filed between October 1, 2021, and July 25, 2022, shall not have a waiting period. The provisions of section 3504.1 through 3504.5 shall not apply to claims filed during this period.

3504.7 Claims filed on or after July 25, 2022 shall not have a waiting period. The provisions of section 3504.1 through 3504.5 shall not apply to claims filed on or after July 25, 2022.

History

SOURCE: Final Rulemaking published at 67 DCR 3997 (April 10, 2020); as amended by Final Rulemaking published at 69 DCR 001141 (February 11, 2022); as amended by Final Rulemaking published at 70 DCR 001101 (January 27, 2023). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 3504

7 DCMR § 3505 DURATION OF PAID-LEAVE BENEFITS

3505.1 (a) For all claims submitted before October 1, 2021, an eligible individual shall not receive more than:

(1) Two (2) workweeks of qualifying medical leave for qualifying medical leave event(s) within a fifty-two (52) calendar week period;

(2) Six (6) workweeks of qualifying family leave for qualifying family leave event(s) within a fifty-two (52) calendar week period;

(3) Eight (8) workweeks of qualifying parental leave for qualifying parental leave event(s) within a fifty-two (52) calendar week period; and

(4) Zero (0) workweeks of qualifying pre-natal leave for qualifying pre-natal leave event(s) within a fifty-two (52) calendar week period.

(b) For all claims submitted between October 1, 2021 and September 30, 2022, an eligible individual shall not receive more than:

(1) Six (6) workweeks of qualifying medical leave for qualifying medical leave event(s) within a fifty-two (52) calendar week period;

(2) Six (6) workweeks of qualifying family leave for qualifying family leave event(s) within a fifty-two (52) calendar week period;

(3) Eight (8) workweeks of qualifying parental leave for qualifying parental leave event(s) within a fifty-two (52) calendar week period; and

(4) Two (2) workweeks of qualifying pre-natal leave for qualifying pre-natal leave event(s) within a fifty-two (52) calendar week period.

(c) For all claims submitted on or after October 1, 2022 with requested leave dates beginning on or after September 25, 2022, an eligible individual shall not receive more than:

Twelve (12) workweeks of qualifying medical leave for qualifying medical leave event(s) within a fifty-two (52) calendar week period;

Twelve (12) workweeks of qualifying family leave for qualifying family leave event(s) within a fifty-two (52) calendar week period;

Twelve (12) workweeks of qualifying parental leave for qualifying parental leave event(s) within a fifty-two (52) calendar week period; and

Two (2) workweeks of qualifying pre-natal leave for qualifying pre-natal leave event(s) within a fifty-two (52) calendar week period.

3505.2 (a) An eligible individual shall not receive more weeks of paid-leave benefits during a fifty-two (52) calendar week period than the maximum leave entitlement, regardless of the number of qualifying leave events that occurred during the fifty-two (52) calendar week period.

(b) An eligible individual shall be eligible to receive up to two (2) workweeks of qualifying pre-natal leave for qualifying pre-natal leave event(s) within a fifty-two (52) calendar week period without regard for the restriction provided in subsection (a) and without regard for the number of workweeks of qualifying parental and family leave benefits the eligible individual received during the same fifty-two (52) calendar week period.

(c) An eligible individual shall not receive any combination of qualifying pre-natal leave and qualifying medical leave within a fifty-two (52) calendar week period that exceeds the maximum number of workweeks of qualifying medical leave available to the eligible individual for the fiscal year in which the claim is filed.

3505.3 All leave taken pursuant to this chapter shall be in no less than one (1) workday increments.

History

SOURCE: Final Rulemaking published at 67 DCR 3997 (April 10, 2020); as amended by Final Rulemaking published at 69 DCR 001141 (February 11, 2022); as amended by Final Rulemaking published at 70 DCR 001101 (January 27, 2023). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 3505

7 DCMR § 3506 CONTINUOUS AND INTERMITTENT LEAVE

3506.1 An eligible individual may elect to receive paid leave either intermittently or continuously.

3506.2 When receiving benefits payable for continuous leave, an eligible individual shall earn no income by performing his or her usual and customary work during any part of the calendar weeks during which benefits for continuous leave are payable to the eligible individual, except for the first and last payable weeks, which, if they are partial weeks, shall be treated for the purposes of benefit amounts in a similar manner as weeks during which intermittent-leave benefits are payable pursuant to this section.

3506.3 When receiving benefits payable for intermittent leave, an eligible individual shall earn no income by performing his or her usual and customary work on any of the days for which the eligible individual is claiming paid-leave benefits. However, the eligible individual may earn income by performing his or her usual and customary work on days for which intermittent-leave benefits are not payable, subject to the limitation described in Subsection 3506.11.

3506.4 When electing continuous leave upon initial application for benefits, or when electing a change in payment schedule from intermittent to continuous leave, an eligible individual shall:

(a) Acknowledge in writing to DOES that the individual understands that he or she may earn no income by performing his or her usual and customary work during any part of the calendar week(s) during which benefits for continuous leave benefits are payable to the eligible individual, except for the first and last payable weeks, if they are partial weeks; and

(b) If either the first or last payable weeks are partial weeks:

(1) Designate an intermittent leave indicator pursuant to Subsection 3506.5; and

(2) Certify that the days of the calendar week for which the individual seeks a partial week of benefits were days of the calendar week during which the individual performed his or her regular and customary work in the period before the occurrence of the qualifying paid-leave event, or, in the case of an election to change the leave schedule pursuant to Subsection 3506.12, before the date of the election pursuant to Subsection 3506.12.

3506.5 When electing intermittent leave upon initial application for benefits, or when electing a change in payment schedule from continuous to intermittent leave, the eligible individual shall:

(a) Inform DOES and the covered employer of the specific dates on which the individual wishes to claim paid-leave benefits;

(b) Designate an intermittent leave indicator, identifying the days on which the individual regularly worked, in total, from all sources of employment. This intermittent leave indicator shall be either a personalized intermittent leave indicator or the default intermittent leave indicator.

(1) A personalized intermittent leave indicator identifies the number of days per calendar week, different from the five (5) day workweek described in the default intermittent leave indicator, that the individual regularly worked, during the individual's most recent usual and customary week of working.

(2) The default intermittent leave indicator is based on a five (5) day workweek. Individuals receiving benefits on a continuous payment schedule are assigned the default intermittent leave indicator (except for the first and last payable weeks, if they are partial weeks) for the purposes of this chapter. If an individual receiving benefits on an intermittent leave schedule does not designate a number of days as provided in subparagraph (1), the default intermittent leave workweek shall be assigned to the individual.

(c) Certify that the days of the calendar week for which the individual seeks intermittent benefits were days of the calendar week during which the individual performed his or her regular and customary work in the period before the occurrence of the qualifying paid-leave event, or, in the case of an election to change the leave schedule pursuant to Subsection 3506.12, before the date of the election pursuant to Subsection 3506.12; and

(d) Acknowledge in writing to DOES that the individual understands that he or she may earn no income by performing his or her usual and customary work on any of the days for which intermittent paid-leave benefits are payable to the eligible individual.

3506.6 When receiving benefits on an intermittent payment schedule, an individual may submit a request to amend the days for which benefits are payable.

For qualifying medical leave or qualifying family leave, any amendment to the leave schedule must be medically necessary as established by appropriate medical documentation signed by a health care provider submitted to DOES by the individual. The requirement for such documentation for an amendment may be satisfied by a signed affirmation of a medical or family leave event by the eligible individual when:

For qualifying pre-natal leave, any amendment to the leave schedule must be medically necessary as established by appropriate medical documentation signed by a health care provider submitted to DOES by the individual.

The serious health condition is a chronic serious health condition for which substantiating medical evidence has been provided to DOES and for which qualifying medical leave or qualifying family leave benefits have been approved by DOES as payable;

A medical provider has certified that unexpected occurrences of incapacity are expected due to the chronic serious health condition;

The qualifying medical leave or qualifying family leave claim for which the chronic serious health condition is the serious health condition for which benefits have been approved as payable is currently an open claim or the claim has not been a closed claim for more than ten (10) business days; and

DOES has not determined that a reasonable basis exists for requiring medical documentation signed by a health care provider for the occurrence.

(b) If the individual did not take leave on a past date on which the individual intended to take paid leave, the individual shall submit a request to amend the payment schedule to DOES with an explanation of the need to amend the past date and an indication of any date on which leave was actually taken. A request to amend leave for a past date shall be submitted no later than thirty (30) days after the day on which the leave was scheduled to occur.

(c) For qualifying family, medical, or pre-natal leave events approved by DOES for intermittent leave benefits, if the individual took leave on an unscheduled past date due to the occurrence of the qualifying event already approved by DOES as payable, the individual may request intermittent leave benefits for that day by submitting documentation proving the occurrence of the qualifying event on that date. A request to amend leave for a past date shall be submitted no later than thirty (30) days after the day on which the leave was taken.

(d) Individuals receiving intermittent leave benefits for a parental leave event shall not be approved for intermittent leave benefits for leave taken on past dates for which the individual was not approved for leave in advance.

(e) During an open claim, when the individual intends to take leave on future dates that differ from the approved schedule, the individual shall submit a request to DOES to amend the days for which benefits are payable with an explanation of the need to amend the future dates and an indication of the dates on which the individual now intends to claim paid leave.

(f) DOES shall notify the employer of any such amendment.

3506.7 The amount paid to an individual electing intermittent leave shall be calculated based on a daily benefit amount, which shall be derived from the individual’s weekly benefit amount calculated pursuant to Section 3503. The daily benefit amount for an individual electing intermittent leave shall equal the individual’s weekly benefit amount calculated in Section 3503 divided by the individual’s intermittent leave indicator, incorporating any amendments pursuant to Subsection 3506.8.

3506.8 During an open claim, an individual may request that DOES amend the indicator supplied pursuant to Subsection 3506.5(b) if the individual’s work schedule changes.

(a) Any such change shall affect only those benefits payable for dates after the date on which DOES receives notice of such change, if the change is approved.

(b) An individual may request such an amendment no more than one (1) time per calendar month during an open claim.

3506.9 If an individual’s intermittent leave indicator changes during an open claim as a result of the individual’s election pursuant to Subsection 3506.8, the maximum number of intermittent-leave days for which the individual is eligible for benefits will also change, but neither the total number of eligible workweeks nor the total dollar amount of eligible benefits will change. For example, if an individual’s work schedule changes from three days to five days during an open claim, and the individual properly notifies DOES of such change pursuant to Subsection 3506.8 and is approved for such change, then the individual’s daily benefit amount for all days claimed in the future will decrease from one-third (1/3) of the weekly benefit amount to one-fifth (1/5) of the weekly benefit amount. In such case, the maximum amount of approved benefits for the open claim, expressed as a dollar amount or as a number of workweeks, will not change, but the number of remaining days for which the individual is eligible for intermittent leave will change.

3506.10 If, as a result of changes to the individual’s work schedule pursuant to Subsection 3506.8, the amount of workweeks of leave remaining on the last day of approved leave equals a fraction less than the individual’s weekly benefit amount calculated in Section 3503 divided by the individual’s intermittent leave indicator, then the individual shall receive payment only for the fraction remaining.

3506.11 For individuals receiving benefits on an intermittent schedule, the sum of the number of days in a calendar week during which benefits under this chapter are payable, and the number of days in that calendar week during which the eligible individual earns income by performing his or her usual and customary work, shall not exceed the number of days given by the intermittent leave indicator supplied by the individual pursuant to Subsection 3506.5(b) and any amendments pursuant to Subsection 3506.8.

(a) Calendar weeks during which the sum of the number of days on which the individual performs his or her usual and customary work, and the number of days on which the individual receives benefits payable under this chapter, exceeds the individual’s current intermittent leave indicator shall be considered weeks during which erroneous payments subject to Section 3514 were made.

(b) The number of days for which erroneous payments were made in such weeks shall be determined as the number of days on which the individual performed his or her usual and customary work and received benefits payable under this chapter that exceed the individual’s current intermittent leave indicator.

3506.12 At any time after the first day for which paid-leave benefits are payable under this chapter, an eligible individual may notify DOES of his or her election to change the leave schedule, but such elections may be made no more frequently than once a month. When a change in the payment schedule is from intermittent to continuous leave or from continuous to intermittent leave, such notification shall include:

(a) The type of benefit payment schedule currently in payment status, either continuous or intermittent;

(b) The type of benefit payment schedule to which the eligible individual is electing to change, either continuous or intermittent;

(d) If changing to an intermittent payment schedule, then the elements described in Subsection 3506.5.

3506.13 Within ten (10) business days after receiving the eligible individual’s notification of his or her election to change the leave schedule from either intermittent to continuous leave or from continuous to intermittent leave, DOES shall notify both the covered employer and eligible individual of the following:

A determination of the approval or denial of the request to change the payment schedule, or a request for additional information;

If approved, a description of the approved payment schedule.

3506.14 In addition to the notifications described in Subsection 3506.13, DOES shall also notify the eligible individual in private communication within the ten (10) business day period described in Subsection 3506.13 of the following:

(a) The approved weekly benefit amount and, if applicable, the approved daily benefit amount; and

(b) A description of the process to file an appeal with the DOES Administrative Appeals Division or the Office of Administrative Hearings.

3506.15 A change in the benefit payment schedule from continuous to intermittent or from intermittent to continuous shall take effect on the first Sunday that begins the next biweekly payment period following DOES’s approval of the individual’s request to change the payment schedule.

History

SOURCE: Final Rulemaking published at 67 DCR 3997 (April 10, 2020); as amended by Final Rulemaking published at 69 DCR 001141 (February 11, 2022); as amended by Final Rulemaking published at 70 DCR 001101 (January 27, 2023). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 3506

7 DCMR § 3507 PAYMENT OF BENEFITS

3507.1 Subject to the other provisions of this chapter, DOES shall pay benefits to which the eligible individual is entitled on a biweekly payment schedule.

3507.2 The biweekly payment period shall begin on a Sunday and end on a Saturday.

3507.3 DOES shall determine the day(s) of the calendar week on which biweekly payments shall be made to eligible individuals.

3507.4 DOES shall determine the method(s) of payment by which eligible individuals may receive benefits.

3507.5 After notifying an applicant of the approval of benefits, DOES shall make the first payment to the eligible individual within ten (10) business days. Such first payment shall coincide with a regularly scheduled biweekly payment schedule.

History

SOURCE: Final Rulemaking published at 67 DCR 3997 (April 10, 2020). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 3507

7 DCMR § 3508 ONLINE PORTAL

3508.1 All claims for paid-leave benefits shall be submitted through the online portal, or an electronic or non-electronic format approved by DOES.

3508.2 All DOES communications pursuant to this chapter shall occur through the online portal, or an electronic or non-electronic format approved by DOES.

3508.3 Initial and subsequent determinations shall be sent to applicants and eligible individuals through the online portal, or an electronic or non-electronic format approved by DOES.

3508.4 All applicants and eligible individuals shall be responsible for maintaining current contact information in the online portal, but may update the contact information via an electronic or non-electronic format approved by DOES.

3508.5 All applicants and eligible individuals shall receive notifications related to any required actions and the status of claims for paid leave through the online portal, or through an electronic or non-electronic format approved by DOES.

3508.6 All applicants and eligible individuals shall be responsible for responding to any requests for additional information through the online portal, or through an electronic or non-electronic format approved by DOES.

History

SOURCE: Final Rulemaking published at 67 DCR 3997 (April 10, 2020). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 3508

7 DCMR § 3509 EMPLOYEE NOTICE TO EMPLOYER

3509.1 (a) An eligible individual shall, to the extent practicable, provide written notice to his or her employer of the need for the use of paid-leave benefits before taking leave.

(b) If the leave pursuant to this chapter is foreseeable, the eligible individual shall provide the written notice at least ten (10) business days in advance of the leave.

(c) If the leave pursuant to this chapter is unforeseeable, the eligible individual shall provide a notification in writing, or orally in exigent circumstances, before the start of the work shift for which the individual intends to take leave pursuant to this chapter.

(d) In the case of an emergency that prevents an individual from providing notice before the start of the work shift for which the individual intends to take leave pursuant to this chapter, the eligible individual, or another individual on behalf of the eligible individual, shall notify the eligible individual’s employer of the need for leave in writing, or orally in exigent circumstances, within forty-eight (48) hours after the emergency occurs. The eligible individual, or another individual on behalf of the eligible individual, shall supplement oral notice with written notice of the need for leave as soon as practicable.

3509.2 The eligible individual’s written or oral notice to the employer shall include:

(a) The type of qualifying leave requested;

(b) The expected duration of the leave pursuant to this chapter;

(d) Whether the paid leave benefits sought under this chapter will initially be used continuously or intermittently.

History

SOURCE: Final Rulemaking published at 67 DCR 3997 (April 10, 2020). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 3509

7 DCMR § 3510 APPEALS OF CLAIM DETERMINATIONS

3510.1 If the applicant or eligible individual disagrees with all or any part of a claim determination issued pursuant to Sections 3502 or 3506, the applicant or eligible individual may appeal the claim determination to DOES’s Administrative Appeals Division pursuant to Section 3511, or to the Office of Administrative Hearings pursuant to Section 3512.

History

SOURCE: Final Rulemaking published at 67 DCR 3997 (April 10, 2020). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 3510

7 DCMR § 3511 DOES ADMINISTRATIVE APPEALS

3511.1 To request an administrative appeal to DOES’s Administrative Appeals Division of a claim determination issued under Sections 3502 or 3506, the applicant or eligible individual shall file a request for appeal with DOES within ten (10) business days after the applicant or eligible individual receives a claim determination. The applicant or eligible individual shall submit with the request for administrative appeal an explanation of the basis for the appeal and any information and documents in support of the appeal.

3511.2 After receiving a request for an administrative appeal, DOES shall process the claim that is the subject of the appeal in the same manner as provided under this chapter, taking into consideration any new information and documents submitted by the applicant in support of the appeal.

3511.3 DOES shall issue a new determination within ten (10) business days after the receipt of the request for an administrative appeal.

3511.4 An applicant or eligible individual may appeal the new determination to the Office of the Administrative Hearings, as provided by Section 3512.

3511.5 A request for an administrative appeal does not diminish an applicant’s right to file an appeal with the Office of Administrative Hearings.

History

SOURCE: Final Rulemaking published at 67 DCR 3997 (April 10, 2020). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 3511

7 DCMR § 3512 OAH APPEALS

3512.1 An applicant or eligible individual may appeal a claim determination issued under Sections 3502 or 3506, or a new determination issued under Section 3511, to the Office of Administrative Hearings. The appeal to the Office of Administrative Hearings must be filed within sixty (60) calendar days after the date the claim determination or new determination is issued.

3512.2 Appeals to the Office of Administrative Hearings shall be governed by the rules, policies, and procedures of the Office of Administrative Hearings.

History

SOURCE: Final Rulemaking published at 67 DCR 3997 (April 10, 2020). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 3512

7 DCMR § 3513 RELATIONSHIP TO OTHER BENEFITS AND INCOME

3513.1 If paid leave taken pursuant to this chapter also qualifies as protected leave pursuant to FMLA, or D.C. FMLA, the paid leave shall run concurrently with, and not in addition to, leave taken under those other acts.

3513.2 Nothing in this chapter shall be construed to provide job protection to any eligible individual beyond that to which an individual is entitled under the D.C. FMLA.

3513.3 An eligible individual shall not be eligible to receive payment for paid-leave benefits under this chapter for any day of leave that falls within any week for which the individual also receives or expects to receive payments pursuant to the District of Columbia Unemployment Compensation Act, effective August 28, 1935 (49 Stat. 946; D.C. Official Code § 51-101 et seq.). Individuals are not prohibited from receiving paid-leave benefits under this chapter even if they have an open or pending claim for unemployment compensation as long as unemployment compensation payments are not received or expected for the same weeks that contain any payable date under this chapter.

3513.4 An eligible individual shall not be eligible to receive paid-leave benefits under this chapter for any day of leave that falls within any period of time for which long-term disability payments are attributable. This prohibition applies regardless of whether the monetary payments for the period of eligibility for long-term disability benefits were already received, are being actively received, or are expected to be received in the future. The periods of time during which the prohibition on concurrent receipt of paid-leave payable dates are in force may be days, weeks, months, or any other period of time for which the individual actively or passively seeks or receives long-term disability payments attributable to a disability occurring within that period of time.

3513.5 An eligible individual’s right to short-term, employer-provided paid-leave benefits, including but not limited to paid sick time, vacation time, short-term disability benefits, and paid parental leave, while receiving paid-leave benefits under this chapter will be determined by the employer’s policies. Nothing in this chapter shall be interpreted as prohibiting employers from maintaining or amending any existing or future policies regarding their own private employee benefits.

3513.6 (a) An eligible individual is not permitted to earn income by performing his or her regular and customary work during the period for which the eligible individual receives benefits under this chapter.

(b) Payments made under this chapter for days on which the eligible individual earns income by performing his or her regular and customary work shall constitute erroneous payments subject to Sections 3514 and 3515.

(c) Unless other provisions in this chapter provide for an earlier date of benefit termination, an eligible individual’s entitlement to benefits payable under a continuous payment schedule provided by this chapter shall stop on the date on which the eligible individual returns to earning income by performing his or her regular and customary work.

(d) Unless other provisions in this chapter provide for an earlier date of benefit termination, an eligible individual’s entitlement to benefits payable under an intermittent payment schedule provided by this chapter shall stop on the day of the week on which an eligible individual elected to receive intermittent benefits and on which the eligible individual returns to earning income by performing his or her usual and customary work.

(e) Restrictions on earning income while receiving benefits for continuous and intermittent leave are subject to the limitations set forth in Section 3506.

History

SOURCE: Final Rulemaking published at 67 DCR 3997 (April 10, 2020); as amended by Final Rulemaking published at 70 DCR 001101 (January 27, 2023). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 3513

7 DCMR § 3514 ERRONEOUS PAYMENTS AND DISQUALIFICATION FOR BENEFITS

3514.1 It is unlawful for any applicant or eligible individual to intentionally provide knowingly false statements to obtain paid-leave benefits.

3514.2 An eligible individual shall not earn income by performing his or her regular and customary work during a period for which paid-leave benefits provided under this chapter are payable.

3514.3 If an eligible individual dies during an open claim, the individual’s eligibility for benefits under this chapter shall cease the day after the eligible individual died.

3514.4 An applicant or eligible individual who intentionally makes a false statement or misrepresentation regarding a material fact, or who intentionally fails to report a material fact, in order to obtain paid-leave benefits shall be disqualified from receiving paid-leave benefits for a period of three (3) years beginning with the date of disqualification.

3514.5 Disqualification under this section shall not affect paid-leave benefits otherwise properly paid prior to the date of such false statements, misrepresentations, or failure to report a material fact.

3514.6 DOES shall provide written notice to an applicant or eligible individual of the applicant or eligible individual’s disqualification under this section. The notice shall include the following information:

(a) The reason for the disqualification;

(b) The disqualification period beginning date and ending date; and

History

SOURCE: Final Rulemaking published at 67 DCR 3997 (April 10, 2020). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 3514

7 DCMR § 3515 REPAYMENT OF PAID-LEAVE BENEFITS

3515.1 In the event of erroneous payment or overpayment, DOES shall seek repayment of benefits from the recipient or the estate of a deceased recipient; provided, that the Director may waive, in whole or in part, the amount of any such payments when the recovery would be against equity and good conscience.

3515.2 DOES shall provide notice in writing to an eligible individual of the requirement to repay erroneous payments or overpayments. The repayment notice shall include the following information:

The amount of paid-leave benefits overpaid to the individual;

The option to enter into a repayment agreement with DOES; and

The collection methods DOES may utilize to seek repayment of paid-leave benefits if the recipient does not enter into a repayment agreement with DOES.

3515.3 DOES shall not attempt to collect repayment of paid-leave benefits during an appeal of a claim determination or while the recipient has a pending bankruptcy case.

3515.4 DOES may utilize the following methods to seek repayment of paid-leave benefits from the recipient:

(a) Accepting full repayment, or monthly installments as outlined in an optional repayment agreement between DOES and the recipient, in the form of personal check, money order, or electronic payment through a debit card, credit card, or personal checking account via the online portal;

(b) Offsetting the balance of erroneous payments from future paid-leave benefit entitlements at a rate of one hundred percent (100%), if:

(1) The recipient is actively collecting paid-leave benefits after the completion of the appeal of a claim determination; and

(2) There is no existing disqualification on the recipient’s current paid-leave claim;

(d) Intercepting District income tax refunds to the extent consistent with District law, or of state, federal, and local income tax refunds to the extent consistent with state, federal, or local law.

3515.5 A recipient may request that DOES waive the requirement that a recipient repay paid-leave benefits. The request shall be submitted through the online portal, or through an electronic or non-electronic format approved by DOES, within thirty (30) calendar days after DOES sends a repayment notice to the recipient.

3515.6 If the request for waiver of the paid-leave benefit repayment is not submitted within the thirty (30) calendar-day period, the recipient shall provide good cause for failure to meet the thirty (30) calendar-day requirement before the request can be considered.

3515.7 DOES may refer a repayment matter to the Office of the Attorney General for the District of Columbia or the Office of the Inspector General.

3515.8 (a) If DOES obtains repayment of benefits from an individual who has made a willful misrepresentation or otherwise perpetrated fraud to obtain paid-leave benefits and who received paid-leave benefits under this chapter for a period during which he or she earned income by performing work as a covered employee for a covered employer, and that covered employer made contributions to the Universal Paid Leave Implementation Fund based on the wages paid to that individual during the period he or she improperly received paid-leave benefits under this chapter, DOES shall distribute a proportional share of the recovered amount to that covered employer.

(b) For the purposes of paragraph (a) of this subsection, a covered employer’s proportional share of the recovered amount shall be determined by the following method:

(1) The total amount paid into the Universal Paid Leave Implementation Fund by all covered employers on behalf of the individual during the period that he or she improperly obtained benefits shall be added together;

(2) The amount contributed by the covered employer during the period described in paragraph (a) shall be divided by the total amount calculated in subparagraph (1);

(3) This proportion shall be applied to the amount recovered from the individual;

(4) The resulting amount shall be distributed to the covered employer.

3515.9 DOES may cancel the requirement that a recipient repay a paid-leave repayment balance if:

(a) The recipient is deceased, provided that a death certificate is provided to DOES, and recovery from the recipient’s estate would be against equity and good conscience;

(b) The recipient is a victim of identity theft and the claim submitted to DOES was made by an unauthorized person using the identity of the victim; provided, that evidence supporting the occurrence of identity theft, such as a police report or other supporting documentation, is provided to DOES; or

(c) The recipient is a victim of domestic violence in which situation the claimant was forced by an abusive partner or family member to apply for benefits of which the abusive partner retained control; provided, that evidence supporting the occurrence of such a situation of domestic violence, such as a police report or other supporting documentation, is provided to DOES by the eligible individual or an authorized representative.

History

SOURCE: Final Rulemaking published at 67 DCR 3997 (April 10, 2020). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 3515

7 DCMR § 3516 COMPLAINTS

3516.1 A complaint alleging a violation of this chapter or the Act, other than a complaint regarding a claim determination (which shall be filed as an appeal as provided in this chapter), shall be filed with the Office of Human Rights and shall be governed by the administrative enforcement procedure used for the D.C. FMLA.

3516.2 All complaints pursuant to this section shall be filed within one (1) year after the occurrence or discovery of the alleged violation, whichever is later.

History

SOURCE: Final Rulemaking published at 67 DCR 3997 (April 10, 2020). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 3516

7 DCMR § 3599 DEFINITIONS

3599.1 In addition to the definitions in 34 DCMR § 3499, the following definitions shall apply to this chapter:

“Applicant” – means a person for whom a claim for paid family leave benefits has been submitted pursuant to section 3501.

“Authorized representative” – means an individual or entity who is legally permitted to act on behalf of an applicant or eligible individual. Such individual or entity may act as an authorized representative only if approved by DOES to act as an authorized representative for the applicant or eligible individual under the provisions of Subsection 3501.12.

“Average weekly wage” – means the average weekly wage as calculated by Subsection 3503.1(b).

“Biweekly” – means intervals of fourteen (14) calendar days.

“Bonding” – means the formation of a close emotional and psychological relationship between a parent or primary caregiver and an infant or child.

“Calendar week” – means each seven (7) day period beginning on Sunday and ending on Saturday.

“Child” – means a biological, adopted, or foster son or daughter, a stepson or stepdaughter, a legal ward, a son or daughter of a domestic partner, or a person to whom an eligible individual stands in loco parentis.

“Closed claim” – means a claim that was an open claim but whose last payable date has passed.

“Daily benefit amount” – means, with respect to eligible individuals electing intermittent leave, the weekly benefit amount divided by the intermittent leave indicator.

“DOES” – means the District of Columbia Department of Employment Services.

“D.C. FMLA” – means the District of Columbia Family and Medical Leave Act of 1990, effective October 3, 1990 (D.C. Law 8-181; D.C. Official Code §§ 32-501 et seq.)

“Eligible individual” – means a person whose claim for paid-leave benefits is

not based on employment for the United States, the District of Columbia, or an employer that the District of Columbia is not authorized to tax under federal law or treaty, who meets the requirements of this Chapter and:

(a) Has been a covered employee during some or all of the fifty-two (52) calendar weeks immediately preceding the qualifying event for which paid leave is being taken; or

(b) Is a self-employed individual who has:

(1) Opted into the paid-leave program established pursuant to Chapter 34; and

(2) Earned self-employment income for work performed more than 50% of the time in the District of Columbia during some or all of the fifty-two (52) calendar weeks immediately preceding the qualifying event for which paid leave is being taken.

“Exigent circumstances” – means

(a) Physical or mental incapacity of the applicant that prevented the applicant or the applicant’s authorized representative from filing for benefits following the occurrence of the qualifying event;

(b) A demonstrable inability to reasonably access the means by which a claim could have been filed by the applicant or the applicant’s authorized representative following the occurrence of the qualifying event; or

(c) Actual lack of knowledge by the applicant of their right to apply for benefits under this chapter due to the noncompliance of all of the individual’s covered employers with the notice requirements required by 7 DCMR 3407 during the period when the individual could have received benefits under this chapter. Such employer noncompliance shall be confirmed by DOES before the individual shall be eligible for benefits due to exigent circumstances under this section.

“Family member” – means:

(a) A child;

(b) A biological, foster, or adoptive parent, a parent-in-law, a stepparent, a legal guardian, or other person who stood in loco parentis to an eligible individual when the eligible individual was a child;

(c) A person to whom an eligible individual is related by domestic partnership, as defined by Section 2(4) of the Health Care Benefits Expansion Act of 1992, effective June 11, 1992 (D.C. Law 9-114; D.C. Official Code § 32-701(4)), or marriage;

(d) A grandparent of an eligible individual, which means the biological, foster, adoptive, or step parent of the eligible individual’s biological, foster, adoptive, or step parent; or

(e) A sibling of an eligible individual, which means the biological, half-,

step-, adopted-, or foster-sibling or sibling-in-law of the eligible individual.

“FMLA” – means the Family and Medical Leave Act of 1993, approved February 5, 1993 (107 Stat. 6; 29 USC §§ 2601 et seq.).

“Health care provider” – shall have the same meaning as provided in Section 2(5) of the D.C. FMLA (D.C. Official Code § 32-501(5)).

“In loco parentis” – means in place of a parent.

“In-person treatment” – includes all medical visits attended by a health care provider and the patient in the same physical space and telehealth services that meet the requirements for reimbursement under the Telehealth Reimbursement Act of 2013, approved July 23, 2013 (D.C. Law 20-26; D.C. Official Code § 31–3861).

“Intermittent leave indicator” – means the number of days designated by the eligible individual in Subsection 3506.5(b)(1) or the default intermittent leave workweek provided in Subsection 3506.5(b)(2).

“Long-term disability payments” – a monetary benefit (excluding in-kind or medical benefits) payable from a public or private long-term disability program.

“Long-term disability program” – a plan or policy, including insurance plans whether funded through premiums paid by the covered individual or another entity or person, that is intended to compensate for an individual’s lost wages due to the individual’s own disability. This definition includes such plans or policies only when their maximum allowable duration of benefits payable to the individual, as established in the program’s rules, is twenty-four (24) months or longer.

“Maximum leave entitlement” – means the maximum duration of qualifying parental leave applicable in the fiscal year during which the individual files a claim for paid leave benefits.

“Open claim” – means a claim whose last payable date has not yet occurred.

“Payable date” – means a day for which paid-leave benefits provided under this chapter have been approved as payable by DOES.

“Placement” – means the transfer of physical custody of a child into the household of an eligible individual.

“Pre-natal medical care” – means:

(a) Routine and specialty appointments, exams, and treatments, provided by a health care provider, that are associated with a pregnancy;

(b) Pre-natal check-up appointments with a health care provider;

Diagnostic appointments with a health care provider that are intended to provide medical information about the health or well-being of the embryo or fetus carried by the eligible individual, such as amniocentesis, ultrasounds, or blood tests;

Treatment by a health care provider for pregnancy complications, including any treatment associated with a high-risk pregnancy;

Bedrest that is required or prescribed by a health care provider;

Physical therapy provided by a health care provider necessary to treat symptoms of, or to relieve physical discomfort associated with, pregnancy; or

Other medical care that medical documentation submitted by the claimant demonstrates is associated with a pregnancy.

“Primary caregiver” – means legal guardian, or other person who stands in loco parentis to a child.

“Qualifying event” – means a qualifying family leave event, a qualifying medical leave event, a qualifying parental leave event, or a qualifying pre-natal leave event.

“Qualifying family leave” – means paid leave that an eligible individual may take in order to provide care or companionship to a family member because of the occurrence of a qualifying family leave event.

“Qualifying family leave event” – means the diagnosis or occurrence of a serious health condition of a family member of an eligible individual.

“Qualifying medical leave” – means paid leave that an eligible individual may take following the occurrence of a qualifying medical leave event.

“Qualifying medical leave event” – means the diagnosis or occurrence of a serious health condition of an eligible individual.

“Qualifying parental leave” – means paid leave that an eligible individual may take within one year of the occurrence of a qualifying parental leave event.”.

“Qualifying parental leave event” – means:

(a) The birth of a child of an eligible individual;

(b) The placement of a child with an eligible individual for adoption or foster care; or

(c) The placement of a child with an eligible individual for whom the eligible individual legally assumes and discharges parental responsibility.

“Qualifying pre-natal leave” – means paid leave that an eligible individual who is pregnant may take for pre-natal medical care following the occurrence of a qualifying pre-natal leave event and prior to the occurrence of a qualifying parental leave event.

“Qualifying pre-natal leave event” – means the diagnosis of pregnancy by a health care provider.

“Regular and customary work” – means any work performed by the individual:

During any of the five (5) completed quarters preceding the filing of the claim;

During the calendar quarter in which the claim was filed up to and including the date on which the claim was filed; or

During an open claim up to and including the date on which the individual elected any change to the claim, including any change to the leave schedule, the length of leave, and the intermittent days of leave.

“Self-employment income” – means gross income earned from carrying on a trade or business as a sole proprietor, an independent contractor, or a member of a partnership.

“Serious health condition” – means the occurrence of a stillbirth; or a physical or mental illness, injury, or impairment that requires inpatient care in a hospital, hospice, or residential health care facility, or continuing treatment or supervision at home, or at the home of a caregiver or other family member, by a health care provider or other competent individual.

(a) (1) The term “treatment” includes, but is not limited to, examinations to determine if a serious health condition exists and evaluations of the condition.

(2) Treatment does not include routine physical examinations, eye examinations, or dental examinations.

(3) A regimen of continuing treatment such as the taking of over-the-counter medications, bed rest, or similar activities that can be initiated without a visit to a health care provider is not, by itself, sufficient to constitute continuing treatment for the purposes of this chapter.

(b) The term “inpatient care” is the care of a patient in a hospital, hospice, or residential medical care facility for the duration of one overnight period or longer or any subsequent treatment in connection with such inpatient care.

(c) The term “incapacity” means inability to work, attend school, or perform other regular daily activities due to the serious health condition, treatment of the serious health condition, or recovery from the serious health condition.

(d) Conditions for which cosmetic treatments are administered are not serious health conditions; provided, that procedures related to an individual’s gender transition or restorative surgery following surgery or treatments for diseases or injury shall not be considered cosmetic treatments for the purposes of this subparagraph.

(e) A serious health condition involving continuing treatment by a health care provider means any one or more of the following:

(1) A period of incapacity of more than three (3) consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition that also involves:

(A) Treatment of two (2) or more times within thirty (30) days of the first day of incapacity, unless extenuating circumstances exist, by a health care provider, by a nurse under direct supervision of a health care provider, or by a provider of health care services under orders of, or on referral by, a health care provider. For the purposes of this sub-subparagraph, “extenuating circumstances” means circumstances beyond an individual’s control that prevent the follow-up visit from occurring as planned by the health care provider;

(B) The first, or only, in-person treatment visit within ten (10) days after the first day of incapacity if extenuating circumstances exist; or

(C) Treatment by a health care provider on at least one (1) occasion, which results in a regimen of continuing treatment under the supervision of the health care provider;

(2) Any period of incapacity or treatment, including prenatal care, for such incapacity due to a chronic serious health condition. A chronic serious health condition is one which:

(A) Requires two (2) or more periodic visits annually for treatment by a health care provider or by a nurse under direct supervision of a health care provider;

(B) Continues over an extended period of time, which shall include recurring episodes of a single underlying condition; and

(3) A period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective. The family member of an eligible individual must be under continuing supervision of, but need not be receiving active treatment by, a health care provider;

(4) Any period of absence to receive multiple treatments (including any period of recovery from the treatments) by a health care provider or by a provider of health care services under orders of, or on referral by, a health care provider, for:

(A) Restorative surgery after an accident or other injury; or

(B) A condition that would likely result in a period of incapacity of more than three (3) consecutive, full calendar days in the absence of medical intervention or treatment; or

(5) Treatment by a health care provider on at least one (1) occasion to treat symptoms related to the occurrence of a miscarriage.

“Wages” – shall have the same meaning as provided in Section 1(3) of the District of Columbia Unemployment Compensation Act, approved August 28, 1935 (49 Stat. 946; D.C. Official Code § 51-101(3)); provided, that the term “wages” also includes self-employment income earned by a self-employed individual who has opted into the paid-leave program established pursuant to this chapter.

“Weekly benefit amount” – means the amount calculated using the procedure described in Subsection 3503.1(b).

“Workweek” – means the number of days within a calendar week provided by the indication made pursuant to Subsection 3506.5(b).

History

SOURCE: Final Rulemaking published at 67 DCR 3997 (April 10, 2020); as amended by Final Rulemaking published at 69 DCR 001141 (February 11, 2022); as amended by Final Rulemaking published at 70 DCR 001101 (January 27, 2023). District of Columbia Municipal Regulations Employment Benefits 7 DCMR § 3599