87TH Legislature Regular Session Post-Mortem

The Texas Legislature adjourned May 30, 2021 after some members deprived the body of a quorum. The 2021 session saw passage of six bills with significance for workers’ compensation system stakeholders. These included a bill to create a retroactive COVID-19 presumption for certain public safety employees and a bill that specifically authorizes the conduct of benefit review conferences through telephonic or videoconference means. The sunset review years for the Division and the Office of Injured Employee Counsel were pushed back as well.

This has been the smallest cohort of WC bills to pass in recent memory. Many comp-related bills fell by the wayside. Some bills of consequence that failed to pass include: bills to create a cost of living adjustment for death benefits, COVID-19 presumption bills for nurses and school employees, a bill that would have enlarged entitlement for lifetime income benefits generally and which would have created a special entitlement category for first responders, and a bill that would have eliminated preauthorization, URA reviews, and designated doctors on health care network claims.

Senate Bill 713 moved the date of sunset review from 2023 to 2025 for the Texas Department of Insurance, the Division of Workers’ Compensation, the Office of Public Insurance Counsel, and the Office of Injured Employee Counsel. The sunset review process works under the authority of the Texas Sunset Commission. The Legislature sets a date on which an agency is abolished unless, after review by the Commission, the state agency is deemed worthy of continued existence. In the years leading up to an agency’s sunset review deadline, Sunset Commission staff evaluates the agency and issues recommendations for positive change. The Commission considers the recommendations, hears public testimony, and decides on a package of changes to bring to the full Legislature. An agency’s sunset review year is often the time when major reforms are enacted.

Bills of Significance that Passed

One of the most significant bills to pass this session was SB 22 (Springer, R–Muenster). This bill – the Senate version of the COVID-19 First Responder Presumption – won out over the House version (HB 541) but the final version was negotiated in an end-of-session conference committee. The bill creates a specific presumption for COVID-19, which is applicable to peace officers, firefighters, EMTs, custodial officers and detention officers. SB 22 will take effect upon the Governor’s signature.

The bill applies the new presumption to any claim filed on or after the effective date of the bill by an employee in one of the listed occupations. In addition, a person in one of the listed occupations who had been diagnosed with COVID-19 on or after March 13, 2020, or who contracted the disease between March 13, 2020 and the effective date of the bill, is entitled to file and pursue a claim for benefits with the aid of the presumption, regardless of whether the claim is otherwise considered untimely. Any such claim must be filed no later than six months after the effective date of the bill.

Moreover, an employee in one of the listed occupations who had filed a claim between March 13, 2020 and the effective date of the bill, and whose claim had been denied, is entitled to request that the carrier reprocess their claim using the new presumption standards. A request to reprocess a claim under this section must be filed no later than one year after the effective date of the bill.

The COVID-19-specific presumption expires September 1, 2023 (unless it is renewed in subsequent legislation). The key provisions of this legislation:

Adds “severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) or coronavirus disease 2019 (COVID-19)” to respiratory illness presumption in § 607.054.
Adds “custodial officer” and “detention officer” to list of defined occupations in Gov’t Code § 607.051, the applicability provisions in § 607.052, and presumption effect provision of § 607.057, and rebuttal provision of § 607.058, the Health Care Reimbursement provisions of Labor Code § 409.0092, and Refusal to Pay Benefits Notice provision of Labor Code § 409.022(d).
New § 607.0545 sets the scope of the presumption:
Employed in an area designated in a disaster declaration related to SARS-CoV-2 or COVID-19.
Diagnosis of one of these conditions by a USDA-approved test or post-mortem evaluation.
Employee was last on duty not more than 15 days before diagnosis. For fatal claims, the last on duty date must be not more than 15 days before diagnosis, physician-confirmed onset of symptoms, hospitalization, or death related to SARS-CoV-2 or COVID-19.
Rebuttal of a COVID-19 presumption cannot be based “solely on evidence relating to the risk of exposure [to COVID-19] of a person with whom [the employee] resides.”
Carriers have 60 days after receipt of a written request to reprocess a previously denied claim.
Does not include an exclusion for employees who refuse to be vaccinated.

The Division supported the passage of HB 1752 (Oliverson, R–Houston), which provides that benefit review conferences can be conducted telephonically or by videoconference. An in-person BRC may be conducted upon a showing of good cause. In-person BRCs must be held within 75 miles of the claimant’s residence at the time of injury, unless good-cause is shown for a different location.

Other Bills of Interest that Passed

HB 1753 (Oliverson, R-Houston) – Health Care Network report card due each December 1^st of each even-numbered year.

HB 3752 (Frank, R-Wichita Falls) – Creates Texas Mutual Health Coverage Plan for small employers.

HB 3769 (Smithee, R-Amarillo) – Requires disclosures on non-subscriber insurance policies that the coverage is not workers’ compensation.

SB 993 (Hancock, R-North Richland Hills) – Scope of practice for Therapeutic Optometrist expanded to allow prescriptions for glaucoma medication and a single three-day supply of Class III, IV & V medications.

Bills of Interest that did not Pass

A number of other significant bills failed to pass. These included the following:

HB 243 – Cost of living adjustment for death benefits.

HB 396 – COVID-19 presumption for nurses.

SB 612 – COVID-19 presumption for school employees.

HB 1635 – Required a Research and Evaluation Group study of First Responder claims\

SB 1864 – “Tele communicators” addition for PTSD under Gov’t Code § 504.019 and bodily injury provision of § 504.055

HB 2029 – Expansion of scope of practice for advanced practice registered nurses.

HB 2247 – Demonstration program for real time authorization of services and medical bill processing.

HB 2598 – Extension of date of injury for first responder PTSD claims.

HB 3098 – Telemedicine for MMI/IR evaluations.

HB 3042 – Provided statutory authority for periodic updating of treatment guidelines, RTW guidelines, treatment protocols, and prescription medication formulary.

HB 3120 – Amendment of Lifetime Income Benefit Provisions. This would have updated the “incurable insanity and imbecility” standard, added “feet” to the burn provision, and creates a “serious bodily injury” criteria for first responders.

HB 3623 – PTSD coverage for health care providers the public health disaster.

HB 4385 – Elimination of preauthorization, URA reviews, and designated doctors on health care network claims.

The Governor is expected to call the Legislature back into special session to address several high profile issues. At this time, we do not anticipate that any called special session will include a workers’ compensation-related issue.