Section 1938 - Disability retirement(a) Upon notice not later than 90 days subsequent to the date the member may have separated from service, any member who has had five or more years of creditable service and has served as a teacher in the State during the five years immediately preceding the date of such separation from service, may be retired by the Board of Trustees on a disability retirement allowance on the first day of the calendar month next following receipt of application, provided such application is filed not less than 30 nor more than one 180 days subsequent to the filing of such notice, or on the first day of the calendar month next following the member's separation from service provided such application is filed prior to such separation, and further provided that the Medical Board, after a medical examination of such member, shall certify that the member is mentally or physically incapacitated for ordinary service; and, if previously separated from service, that such incapacity has existed since the time of the member's separation from such service; and that such incapacity is likely to be permanent.(b) Anything to the contrary notwithstanding, should the Board of Trustees of the State Teachers' Retirement System determine, within its sole discretion, that a member of said System had failed for good cause to file the notice or application required by subsection (a) of this section, within the time limits prescribed, said Board may permit the filing of such notice or application at any time prior to termination of membership and may thereupon act upon such notice or application as if it had been filed within the time limits prescribed by the subsection.(c) Upon disability retirement a member shall receive a service retirement equal to the normal retirement benefit accrued to the effective date of the disability retirement, provided, however, that such allowance shall not be less than 25 percent of his or her average final compensation at the time of his or her disability.(d) Once each year during the first five years following the retirement of a member on a disability retirement allowance, and once in every three-year period thereafter, the Board of Trustees may, and upon his or her application shall, require any disability beneficiary who has not reached his or her normal retirement date to undergo a medical examination by a Medical Board or by a physician or physicians designated by the Medical Board, such examination to be made at the place of residence of such beneficiary or other place mutually agreed upon. Should any disability beneficiary who has not reached his or her normal retirement date refuse to submit to such medical examination, his or her allowance may be discontinued until his or her withdrawal of such refusal, and should his or her refusal continue for one year, all his or her rights in and to his or her pension may be revoked by the Board of Trustees.(e) Should the Medical Board report and certify to the Board of Trustees that any disability beneficiary has a residual functional capacity that might enable the beneficiary to return to work, and should the Board of Trustees reasonably conclude that the beneficiary is engaged in or is, as a result of specific findings made by a certified vocational counselor, able to engage in a gainful occupation paying more than the difference between the beneficiary's retirement allowance and his or her average final compensation at retirement, the beneficiary's pension may be reduced to an amount that, together with his or her annuity and the amount earnable by him or her, shall equal the beneficiary's average final compensation at retirement, adjusted for inflation each year following retirement, provided that:(1) The Board of Trustees shall provide written notice and an opportunity to be heard to the beneficiary prior to any reduction of the beneficiary's pension under this subsection.(2) If the beneficiary has engaged in a gainful occupation subsequent to receiving disability retirement, the Board of Trustees in its discretion may reject in whole or in part a vocational assessment of the beneficiary's ability to engage in a more gainful occupation and may rely in whole or in part on evidence of the beneficiary's actual earnings in determining the amount earnable by the beneficiary. In addition, if the Board of Trustees' determination is based in whole or in part on a vocational assessment of the ability to engage in a gainful occupation, the beneficiary shall be given a reasonable opportunity, not to exceed two years, to seek gainful occupation prior to any change in his or her retirement allowance. Not later than 60 days before the change in retirement allowance is to occur, at the conclusion of the period of a reasonable opportunity to seek gainful occupation, the beneficiary may petition the Board of Trustees for an extension of that period. An extension will be granted only where the beneficiary can demonstrate reasonable diligence in seeking gainful employment and that a substantial hardship will result from a change in the retirement allowance. The Board of Trustees shall render a decision at least five days before the change in retirement allowance is set to occur. In the event that the beneficiary is subsequently restored to service as a teacher as set forth in subsection 1939(a) of this chapter, the beneficiary's retirement allowance shall cease, effective on the date when reemployment commences.(f) Every recipient of disability benefits who has not reached his or her normal retirement date shall, annually on a date determined by the Board of Trustees, file with the State Treasurer a statement certifying, under penalty of perjury and in such form as the Board of Trustees shall prescribe, the full amount of his or her earnings from earned income during the preceding calendar year. The State Treasurer may request, and the beneficiary shall provide within 60 days after such request, additional financial information and records pertinent to the beneficiary's earned income. The beneficiary's statement and accompanying forms and schedules and any other financial information and records provided by the beneficiary to the State Treasurer shall be confidential. In the event that a beneficiary fails to submit the certification or any required or requested financial information or records pertinent to the beneficiary's earned income, the beneficiary's retirement allowance shall be suspended until all such information and records have been submitted, and in the event that the failure continues for one year, the suspension shall include all the beneficiary's rights in and to his or her pension. Notwithstanding any provision of this section to the contrary, if the beneficiary's earned income for the preceding year exceeded the difference between the beneficiary's retirement allowance and his or her average final compensation at retirement, adjusted for inflation each year following retirement, the beneficiary shall refund the portion of the preceding year's retirement allowance that is equal to the amount of the reduction specified in subsection (e) of this section, and the refund amount may be offset against the beneficiary's monthly pension benefits. Prior to suspension or revocation of the beneficiary's retirement allowance, reemployment rights, or inception of any offset under this subsection, the Board of Trustees shall provide the beneficiary with written notice and an opportunity to be heard.(g) If a disability beneficiary engages in gainful occupation paying more than the difference between his or her retirement allowance and his or her average final compensation at retirement, the Board of Trustees may, under uniform standards of economic need, reduce and from time to time adjust his or her pension to an amount that, together with his or her annuity and the amount earnable by him or her, equals his or her average final compensation at retirement. For the purposes of this subsection, "retirement allowance" means the allowance payable without optional modification as provided in section 1941 of this title, and does not include any part of the annuity not provided by the regular contributions of the member at the rate provided under subdivision 1944(b)(2) of this title.Amended 1959, No. 72, § 3, eff. 4/1/1959; 1961, No. 85, § 2; 1963, No. 110, § 1, eff. 5/28/1963; 1963, No. 182, § 2; 1967, No. 172, § 2; 1973, No. 141 (Adj. Sess.), §3; 1981, No. 41, § 26; 1993, No. 33, § 3; 1999, No. 158 (Adj. Sess.), § 9 (Adj. Sess.); 2017, No. 165 (Adj. Sess.), § 12 (Adj. Sess.) .