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.