87R9244 KKR-D
By: Moody, Guillen, Howard H.B. No. 396
Substitute the following for H.B. No. 396:
By: Turner of Tarrant C.S.H.B. No. 396
A BILL TO BE ENTITLED
AN ACT
relating to the eligibility of nurses for workers' compensation
benefits for coronavirus disease (COVID-19) and payment of those
benefits.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter A, Chapter 408, Labor Code, is
amended by adding Section 408.009 to read as follows:
Sec. 408.009. REBUTTABLE PRESUMPTION OF COMPENSABILITY OF
CORONAVIRUS DISEASE (COVID-19) FOR NURSES. (a) In this section,
"nurse" means an individual licensed under Chapter 301, Occupations
Code.
(b) A nurse, including a nurse employed by a state agency or
a political subdivision of this state, who suffers from coronavirus
disease (COVID-19) on or after February 1, 2020, resulting in
disability or death is presumed to have contracted the disease
during the course and scope of employment as a nurse if the nurse:
(1) is assigned:
(A) to treat a patient diagnosed with the
disease; or
(B) to duties that require the nurse to come in
contact with a patient diagnosed with the disease;
(2) contracts the disease not later than the 14th day
following the date the nurse treated or came in contact with the
patient; and
(3) before diagnosis did not decline or refuse to
receive a preventative immunization against the disease, unless the
nurse declined or refused the immunization because the immunization
was medically contraindicated.
(c) The presumption under Subsection (b) may be rebutted
through a showing by a preponderance of the evidence that a risk
factor, accident, hazard, or other cause not associated with the
individual's employment as a nurse was a substantial factor in
bringing about the individual's disease or illness, without which
the disease or illness would not have occurred.
(d) A rebuttal offered under Subsection (c) must include a
statement by the person offering the rebuttal that describes, in
detail, the evidence that the person reviewed before making the
determination that a cause not associated with the individual's
employment as a nurse was a substantial factor in bringing about the
individual's disease or illness, without which the disease or
illness would not have occurred.
(e) In addressing an argument based on a rebuttal offered
under Subsection (c), an administrative law judge shall make
findings of fact and conclusions of law that consider whether a
qualified expert, relying on evidence-based medicine, stated the
opinion that, based on reasonable medical probability, an
identified risk factor, accident, hazard, or other cause not
associated with the individual's employment as a nurse was a
substantial factor in bringing about the individual's disease or
illness without which the disease or illness would not have
occurred.
SECTION 2. Section 408.181(b), Labor Code, is amended to
read as follows:
(b) Subject to Sections [Section] 408.061 and 408.1811, the
amount of a death benefit is equal to 75 percent of the employee's
average weekly wage.
SECTION 3. Subchapter J, Chapter 408, Labor Code, is
amended by adding Section 408.1811 to read as follows:
Sec. 408.1811. DEATH BENEFITS FOR CERTAIN NURSES.
Notwithstanding Section 408.181, in lieu of any other benefits to
which a beneficiary is entitled under this subchapter, the amount
of a death benefit paid to the legal beneficiary of a nurse who
suffered from coronavirus disease (COVID-19) on or after February
1, 2020, resulting in death is $500,000 in a lump sum.
SECTION 4. Section 409.021(a-3), Labor Code, is amended to
read as follows:
(a-3) An insurance carrier is not required to comply with
Subsection (a) if the claim results from an employee's disability
or death for which a presumption is claimed to be applicable under
Section 408.009 of this code or Subchapter B, Chapter 607,
Government Code, and, not later than the 15th day after the date on
which the insurance carrier received written notice of the injury,
the insurance carrier has provided the employee and the division
with a notice that describes all steps taken by the insurance
carrier to investigate the injury before the notice was given and
the evidence the carrier reasonably believes is necessary to
complete its investigation of the compensability of the
injury. The commissioner shall adopt rules as necessary to
implement this subsection.
SECTION 5. Section 409.022(d), Labor Code, is amended to
read as follows:
(d) In this subsection, the terms "emergency medical
technician," "firefighter," and "peace officer" have the meanings
assigned by Section 607.051, Government Code. The term "nurse" has
the meaning assigned by Section 408.009. In addition to the other
requirements of this section, if an insurance carrier's notice of
refusal to pay benefits under Section 409.021 is sent in response to
a claim for compensation resulting from an emergency medical
technician's, a firefighter's, or a peace officer's disability or
death for which a presumption is claimed to be applicable under
Subchapter B, Chapter 607, Government Code, or from a nurse's
disability or death for which a presumption is claimed to be
applicable under Section 408.009, the notice must include a
statement by the carrier that:
(1) explains why the carrier determined a presumption
under that subchapter does not apply to the claim for compensation;
and
(2) describes the evidence that the carrier reviewed
in making the determination described by Subdivision (1).
SECTION 6. Section 415.021(c-2), Labor Code, is amended to
read as follows:
(c-2) In determining whether to assess an administrative
penalty involving a claim in which the insurance carrier provided
notice under Section 409.021(a-3), the commissioner shall consider
whether:
(1) the employee cooperated with the insurance
carrier's investigation of the claim;
(2) the employee timely authorized access to the
applicable medical records before the insurance carrier's deadline
to:
(A) begin payment of benefits; or
(B) notify the division and the employee of the
insurance carrier's refusal to pay benefits; and
(3) the insurance carrier conducted an investigation
of the claim, applied the statutory presumptions under Section
408.009 of this code or Subchapter B, Chapter 607, Government Code,
and expedited medical benefits under Section 504.055.
SECTION 7. (a) Except as otherwise provided by this
section, Section 408.009, Labor Code, as added by this Act, applies
only to a claim for workers' compensation benefits based on an
injury that occurs on or after the effective date of this Act. A
claim based on an injury that occurs before that date is governed by
the law as it existed on the date the injury occurred, and the
former law is continued in effect for that purpose.
(b) Notwithstanding Section 410.169 or 410.205, Labor Code,
or any other law, a nurse whose injury occurred on or after February
1, 2020, but before the effective date of this Act, and whose claim
was subsequently denied may request in writing that the insurance
carrier reprocess the claim on or after the effective date of this
Act, but not later than six months after the effective date of this
Act, and the changes in law made by this Act apply to that claim.
SECTION 8. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2021.