79R1874 YDB-F

By:  Deuell                                                       S.B. No. 310


A BILL TO BE ENTITLED
AN ACT
relating to certain diseases or illnesses suffered by certain emergency first responders. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. The heading to Chapter 607, Government Code, is amended to read as follows:
CHAPTER 607. BENEFITS RELATING TO CERTAIN [CONTAGIOUS] DISEASES AND ILLNESSES
SECTION 2. Sections 607.001 through 607.004, Government Code, are designated as Subchapter A, Chapter 607, and a heading for that subchapter is added to read as follows:
SUBCHAPTER A. CONTAGIOUS DISEASES
SECTION 3. Chapter 607, Government Code, is amended by adding Subchapter B to read as follows:
SUBCHAPTER B. DISEASES OR ILLNESSES SUFFERED BY FIRST RESPONDERS
Sec. 607.051. DEFINITIONS. In this subchapter: (1) "Executive commissioner" means the executive commissioner of the Health and Human Services Commission. (2) "First responder" means: (A) a public safety employee whose primary duties include responding rapidly to an emergency as the first person to arrive at the scene of the emergency; (B) a person who is defined as fire protection personnel under Section 419.021; (C) a volunteer firefighter certified by the Texas Commission on Fire Protection or the State Firemen's and Fire Marshals' Association of Texas; (D) a peace officer, firefighter, or emergency medical services employee who provides first responder services under an interlocal agreement; and (E) emergency medical services personnel certified as an emergency medical technician or at a higher level of training by the Department of State Health Services. Sec. 607.052. APPLICABILITY. (a) Notwithstanding any other law, this subchapter applies to a first responder who: (1) received a physical examination on becoming or during employment as a first responder that failed to reveal evidence of the illness or disease for which benefits or compensation are sought using a presumption established by this subchapter; (2) is employed for five or more years as a first responder; and (3) seeks compensation for a disease or illness covered by this subchapter that is discovered while the first responder is employed as a first responder. (b) A presumption under this subchapter does not apply: (1) to a determination of a survivor's eligibility for benefits under Chapter 615; (2) in a cause of action brought in a state or federal court other than judicial review of a proceeding that granted or denied benefits or compensation related to employment; (3) to a determination regarding benefits or compensation under a life or disability insurance policy purchased by or on behalf of the first responder that provides coverage in addition to any benefits or compensation required by law; or (4) in relation to a disease or illness known to be caused by the use of tobacco if the first responder or the first responder's spouse is or has been a user of tobacco. (c) This subchapter does not: (1) create a cause of action; (2) enlarge or establish a right to any benefit or compensation; or (3) establish eligibility for any benefit or compensation. (d) A first responder to whom a presumption established under this subchapter applies is entitled only to the benefits or compensation the first responder is entitled to receive at the time the claim for benefits or compensation is filed. (e) For purposes of this subchapter, a person described by Section 607.051(2)(C) is considered to be employed or compensated while the person actively serves as a volunteer firefighter. Sec. 607.053. DISABILITY OR DEATH FROM IMMUNIZATION; SMALLPOX. (a) A first responder is presumed to have suffered a disability or death during the course and scope of employment if the first responder: (1) received preventative immunization against smallpox, or another disease to which the first responder may be exposed during the course and scope of employment and for which immunization is possible; and (2) suffered total or partial disability or death as a result of the immunization. (b) An immunization described by this section is considered preventative whether the immunization occurs before or after exposure to the disease for which the immunization is prescribed. (c) A presumption established under Subsection (a) may not be rebutted by evidence that the immunization was: (1) not required by the employer; (2) not required by law; or (3) received voluntarily or with the consent of the first responder. (d) A first responder who suffers from smallpox that results in total or partial disability or death is presumed to have contracted the disease during the course and scope of employment as a first responder. Sec. 607.054. TUBERCULOSIS OR RESPIRATORY ILLNESS. A first responder who suffers from tuberculosis, or any other disease or illness of the lungs or respiratory tract that the executive commissioner by rule determines has a statistically positive correlation with service as a first responder in the category in which the person seeking benefits or compensation is employed, that results in total or partial disability or death is presumed to have contracted the disease or illness during the course and scope of employment as a first responder. Sec. 607.055. CANCER. (a) A first responder who suffers from cancer resulting in total or partial disability or death is presumed to have developed the cancer during the course and scope of employment as a first responder if while employed as a first responder: (1) the first responder: (A) regularly responded on the scene to calls involving fires or fire fighting as provided by rule of the executive commissioner; or (B) regularly responded to an event involving the documented release of radiation or a known or suspected carcinogen; and (2) the cancer is determined as provided by Subsection (b) to be associated with: (A) fire fighting; or (B) exposure to heat, smoke, radiation, or a known carcinogen as provided by rule of the executive commissioner. (b) The executive commissioner by rule shall determine the types of cancer that are scientifically known to be associated with fire fighting or caused by the exposure described by Subsection (a)(2)(B). The executive commissioner is not required to collect and maintain data on types of cancer and causation for purposes of this subsection but may rely on information and data published by any source the executive commissioner determines to be reliable, including the National Institutes of Health, the International Agency for Research on Cancer, or any other agency of this state or the federal government. (c) The executive commissioner, in consultation with each state agency that licenses, certifies, or regulates a first responder, by rule shall determine when a first responder is considered to have regularly responded to calls involving fires and fire fighting as provided by Subsection (a)(1)(A). The rule must: (1) identify the criteria by which each category of first responder is considered to have regularly responded to calls involving fires and fire fighting; and (2) to the extent practical, require the use of records, logs, and data maintained by entities that employ first responders to objectively prove that a first responder regularly responded to calls involving fires and fire fighting. (d) Each state agency that licenses, certifies, or regulates a first responder shall assist the executive commissioner in making the determination required by Subsection (c). (e) The rule required by Subsection (c) may be adopted in accordance with a memorandum of understanding between the executive commissioner, the Department of State Health Services, the Texas Commission on Fire Protection, and any other state agency that licenses, certifies, or regulates a first responder. Sec. 607.056. EFFECT OF PRESUMPTION. Except as provided by Section 607.052(b), a presumption established under this subchapter applies to a determination of whether a first responder's disability or death resulted from a disease or illness contracted in the course and scope of employment for purposes of benefits or compensation provided under an employee benefit law or plan, including a pension plan. Sec. 607.057. PRESUMPTION REBUTTABLE. A presumption under Section 607.053, 607.054, or 607.055 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 person's service as a first responder caused the person's disease or illness. SECTION 4. As soon as possible after the effective date of this Act, the executive commissioner of the Health and Human Services Commission shall adopt the rules required by Subchapter B, Chapter 607, Government Code, as added by this Act. SECTION 5. The changes in law made by this Act apply to a claim for benefits or compensation brought on or after the effective date of this Act. A claim for benefits or compensation brought before that date is covered by the law in effect on the date the claim was made, and that law is continued in effect for that purpose. SECTION 6. This Act takes effect September 1, 2005.