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.