DWC Proposes Short-Fuse Rulemaking to Implement COVID-19 Presumption
The Division of Workers’ Compensation has created a new template and a new Plain Language Notice (PLN-15) for use in claims involving Tex. Gov’t Code § 607.0545, the recently passed COVID-19 presumption. The Agency has also proposed updates to the font type and instructions on the PLN-14, Notice of Continuing Investigation to show that the notice applies to certain claims subject to the COVID-19 presumption.
The new template is a draft Sample Request to Reprocess a SARSCoV-2 or COVID-19 Claim for injured employees or beneficiaries to use. Use of the template is recommended but not required of injured employees, beneficiaries, or attorneys when requesting that insurance carriers reprocess claims under the new statute.
The new draft PLN-15, Notice of Request to Reprocess a SARS-CoV-2 or COVID-19 Claim is designed for insurance carriers to use when reprocessing COVID-19 claims under the statute. Use of the PLN-15 will be mandatory. The updates on the PLN-14 are non-substantive, but the PLN-14 must be used by carriers when extending a carrier’s investigation deadline under Tex. Labor Code § 409.021 (a-3).
The Division has published an FAQ tutorial about claims subject to the COVID-19 presumption.
DWC is accepting public comments on the proposed PLN-15, Notice of Request to Reprocess a SARS-CoV-2 or COVID-19 Claim Subject to Texas Government Code Section 607.0545. System stakeholders may email their comments to RuleComments@tdi.texas.gov. The Division must receive your written comments by 5 p.m., Central time, on Monday, July 12, 2021. You may also mail or deliver comments to:
Cynthia Guillen
Legal Services, MC-LS
Texas Department of Insurance, Division of Workers’ Compensation
P.O. Box 12050
Austin, Texas 78711
Section 607.0545 was passed as a part of Senate Bill 22 (Springer, R–Muenster), which Governor Greg Abbott signed June 14, 2021. This bill, which provides for a COVID-19 First Responder Presumption, took effect that same day. The bill creates a specific presumption for COVID-19, which is applicable to peace officers, firefighters, EMTs, custodial officers and detention officers. The presumption has been given retroactive effect.
The bill applies the new presumption to any claim filed on or after June 14, 2021 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 June 14, 2021, 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 December 14, 2021 (six months after the effective date of the bill).
Further, an employee in one of the listed occupations who had filed a claim between March 13, 2020 and June 14, 2021, 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 June 14, 2022 (one year after the effective date of the bill). The proposed request to reprocess template and the proposed PLN-15 are designed to effectuate the claims reprocessing procedure.
Section 607.0545 expires September 1, 2023 (unless it is renewed in subsequent legislation). The key provisions of this legislation:
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- 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.
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The legislation primarily affects political subdivisions, risk pools, and state employees. Claims administrators who adjust claims for such political subdivisions should also become familiar with the new presumption and DWC forms. The results of the Division’s latest data call indicate that political subdivisions denied 16% of all claims that were based on positive COVID-19 tests, while the State Office of Risk Management denied 87% of such claims.
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