Texas 2021 - 87th Regular

Texas House Bill HB396 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New		Differences
1		-	By: Moody, Guillen, Howard, Canales H.B. No. 396
	1	+	87R9244 KKR-D
	2	+	By: Moody, Guillen, Howard H.B. No. 396
	3	+	Substitute the following for H.B. No. 396:
	4	+	By: Turner of Tarrant C.S.H.B. No. 396
2	5
3	6
4	7		A BILL TO BE ENTITLED
5	8		AN ACT
6	9		relating to the eligibility of nurses for workers' compensation
7	10		benefits for coronavirus disease (COVID-19) and payment of those
8	11		benefits.
9	12		BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	13		SECTION 1. Subchapter A, Chapter 408, Labor Code, is
11	14		amended by adding Section 408.009 to read as follows:
12	15		Sec. 408.009. REBUTTABLE PRESUMPTION OF COMPENSABILITY OF
13	16		CORONAVIRUS DISEASE (COVID-19) FOR NURSES. (a) In this section,
14	17		"nurse" means an individual licensed under Chapter 301, Occupations
15	18		Code.
16	19		(b) A nurse, including a nurse employed by a state agency or
17	20		a political subdivision of this state, who suffers from coronavirus
18	21		disease (COVID-19) on or after February 1, 2020, resulting in
19	22		disability or death is presumed to have contracted the disease
20	23		during the course and scope of employment as a nurse if the nurse:
21	24		(1) is assigned:
22	25		(A) to treat a patient diagnosed with the
23	26		disease; or
24	27		(B) to duties that require the nurse to come in
25	28		contact with a patient diagnosed with the disease;
26	29		(2) contracts the disease not later than the 14th day
27	30		following the date the nurse treated or came in contact with the
28	31		patient; and
29	32		(3) before diagnosis did not decline or refuse to
30	33		receive a preventative immunization against the disease, unless the
31	34		nurse declined or refused the immunization because the immunization
32	35		was medically contraindicated.
33	36		(c) The presumption under Subsection (b) may be rebutted
34	37		through a showing by a preponderance of the evidence that a risk
35	38		factor, accident, hazard, or other cause not associated with the
36	39		individual's employment as a nurse was a substantial factor in
37	40		bringing about the individual's disease or illness, without which
38	41		the disease or illness would not have occurred.
39	42		(d) A rebuttal offered under Subsection (c) must include a
40	43		statement by the person offering the rebuttal that describes, in
41	44		detail, the evidence that the person reviewed before making the
42	45		determination that a cause not associated with the individual's
43	46		employment as a nurse was a substantial factor in bringing about the
44	47		individual's disease or illness, without which the disease or
45	48		illness would not have occurred.
46	49		(e) In addressing an argument based on a rebuttal offered
47	50		under Subsection (c), an administrative law judge shall make
48	51		findings of fact and conclusions of law that consider whether a
49	52		qualified expert, relying on evidence-based medicine, stated the
50	53		opinion that, based on reasonable medical probability, an
51	54		identified risk factor, accident, hazard, or other cause not
52	55		associated with the individual's employment as a nurse was a
53	56		substantial factor in bringing about the individual's disease or
54	57		illness without which the disease or illness would not have
55	58		occurred.
56	59		SECTION 2. Section 408.181(b), Labor Code, is amended to
57	60		read as follows:
58	61		(b) Subject to Sections [Section] 408.061 and 408.1811, the
59	62		amount of a death benefit is equal to 75 percent of the employee's
60	63		average weekly wage.
61	64		SECTION 3. Subchapter J, Chapter 408, Labor Code, is
62	65		amended by adding Section 408.1811 to read as follows:
63	66		Sec. 408.1811. DEATH BENEFITS FOR CERTAIN NURSES.
64	67		Notwithstanding Section 408.181, in lieu of any other benefits to
65	68		which a beneficiary is entitled under this subchapter, the amount
66	69		of a death benefit paid to the legal beneficiary of a nurse who
67	70		suffered from coronavirus disease (COVID-19) on or after February
68	71		1, 2020, resulting in death is $500,000 in a lump sum.
69	72		SECTION 4. Section 409.021(a-3), Labor Code, is amended to
70	73		read as follows:
71	74		(a-3) An insurance carrier is not required to comply with
72	75		Subsection (a) if the claim results from an employee's disability
73	76		or death for which a presumption is claimed to be applicable under
74	77		Section 408.009 of this code or Subchapter B, Chapter 607,
75	78		Government Code, and, not later than the 15th day after the date on
76	79		which the insurance carrier received written notice of the injury,
77	80		the insurance carrier has provided the employee and the division
78	81		with a notice that describes all steps taken by the insurance
79	82		carrier to investigate the injury before the notice was given and
80	83		the evidence the carrier reasonably believes is necessary to
81	84		complete its investigation of the compensability of the
82	85		injury. The commissioner shall adopt rules as necessary to
83	86		implement this subsection.
84	87		SECTION 5. Section 409.022(d), Labor Code, is amended to
85	88		read as follows:
86	89		(d) In this subsection, the terms "emergency medical
87	90		technician," "firefighter," and "peace officer" have the meanings
88	91		assigned by Section 607.051, Government Code. The term "nurse" has
89	92		the meaning assigned by Section 408.009. In addition to the other
90	93		requirements of this section, if an insurance carrier's notice of
91	94		refusal to pay benefits under Section 409.021 is sent in response to
92	95		a claim for compensation resulting from an emergency medical
93	96		technician's, a firefighter's, or a peace officer's disability or
94	97		death for which a presumption is claimed to be applicable under
95	98		Subchapter B, Chapter 607, Government Code, or from a nurse's
96	99		disability or death for which a presumption is claimed to be
97	100		applicable under Section 408.009, the notice must include a
98	101		statement by the carrier that:
99	102		(1) explains why the carrier determined a presumption
100	103		under that subchapter does not apply to the claim for compensation;
101	104		and
102	105		(2) describes the evidence that the carrier reviewed
103	106		in making the determination described by Subdivision (1).
104	107		SECTION 6. Section 415.021(c-2), Labor Code, is amended to
105	108		read as follows:
106	109		(c-2) In determining whether to assess an administrative
107	110		penalty involving a claim in which the insurance carrier provided
108	111		notice under Section 409.021(a-3), the commissioner shall consider
109	112		whether:
110	113		(1) the employee cooperated with the insurance
111	114		carrier's investigation of the claim;
112	115		(2) the employee timely authorized access to the
113	116		applicable medical records before the insurance carrier's deadline
114	117		to:
115	118		(A) begin payment of benefits; or
116	119		(B) notify the division and the employee of the
117	120		insurance carrier's refusal to pay benefits; and
118	121		(3) the insurance carrier conducted an investigation
119	122		of the claim, applied the statutory presumptions under Section
120	123		408.009 of this code or Subchapter B, Chapter 607, Government Code,
121	124		and expedited medical benefits under Section 504.055.
122	125		SECTION 7. (a) Except as otherwise provided by this
123	126		section, Section 408.009, Labor Code, as added by this Act, applies
124	127		only to a claim for workers' compensation benefits based on an
125	128		injury that occurs on or after the effective date of this Act. A
126	129		claim based on an injury that occurs before that date is governed by
127	130		the law as it existed on the date the injury occurred, and the
128	131		former law is continued in effect for that purpose.
129		-	(b) Notwithstanding Section 409.003, 409.007, 410.169, or
130		-	410.205, Labor Code, a nurse whose injury occurred on or after
131		-	February 1, 2020, but before the effective date of this Act, and
132		-	whose claim was subsequently denied may, on or after the effective
133		-	date of this Act, request in writing that the insurance carrier
134		-	reprocess the claim and the changes in law made by this Act shall
135		-	apply to that claim.
136		-	(c) Not later than the 60th day after the date an insurance
137		-	carrier receives a written request to reprocess a claim under
138		-	Subsection (b) of this section, the insurance carrier shall
139		-	reprocess the claim and notify the person in writing whether the
140		-	carrier accepted or denied the claim. If the insurance carrier
141		-	denies the claim, the notice must include information on the
142		-	process for disputing the denial. The notice provided by the
143		-	insurance carrier must use the notice provisions prescribed by the
144		-	division of workers' compensation of the Texas Department of
145		-	Insurance under Subsection (d) of this section.
146		-	(d) As soon as practicable after the effective date of this
147		-	Act, the division of workers' compensation of the Texas Department
148		-	of Insurance shall prescribe notice provisions for an insurance
149		-	carrier to use when providing notice of the insurance carrier's
150		-	acceptance or denial of a person's claim. The notice provisions
151		-	must be clear and easily understandable.
	132	+	(b) Notwithstanding Section 410.169 or 410.205, Labor Code,
	133	+	or any other law, a nurse whose injury occurred on or after February
	134	+	1, 2020, but before the effective date of this Act, and whose claim
	135	+	was subsequently denied may request in writing that the insurance
	136	+	carrier reprocess the claim on or after the effective date of this
	137	+	Act, but not later than six months after the effective date of this
	138	+	Act, and the changes in law made by this Act apply to that claim.
152	139		SECTION 8. This Act takes effect immediately if it receives
153	140		a vote of two-thirds of all the members elected to each house, as
154	141		provided by Section 39, Article III, Texas Constitution. If this
155	142		Act does not receive the vote necessary for immediate effect, this
156	143		Act takes effect September 1, 2021.