Fourteen New Bills Affecting Comp Are Now the Law in Texas

Three weeks following the close of the 86th Texas Legislative session finds that 14 bills that we monitored throughout the session have now taken effect. Several of the bills relate to first responders’ entitlement to benefits. But other issues have also been affected, such as billing from Federal Military Hospitals, work status reports signed by advanced practice registered nurses, and medical marijuana.

Some bills took effect on the date of the Governor’s signature. Other bills have a delayed effective date. Here’s a rundown.

Cancer Presumption, Enforcement and Governmental Immunity

SB 2551 by Sen. Hinojosa involves the cancer presumption found in Chapter 607 of the Texas Government Code. Previously, § 607.055 provided that cancers which the International Agency for Research on Cancer had determined may be related to firefighting were presumed to be compensable under the Workers’ Compensation Act. The IARC published a monograph that determined that three types of cancer (prostate, testicular and non-Hodgkin lymphoma) may be related to firefighting. This bill expands the presumption to 11 types of cancer (a cancer that originates at the stomach, colon, rectum, skin, prostate, testis, or brain; non-Hodgkin’s lymphoma; multiple myeloma; malignant melanoma; and renal cell carcinoma).

The bill also changes the standard to be applied for rebutting the presumption and requires an administrative law judge to make specific findings of fact and conclusions of law. In addition, the bill waives governmental immunity for fee shifted attorneys’ fees under § 408.221(c). This waiver of immunity is applicable generally and not just with regard to presumption cases. In effect, the bill has reversed the decision of the Texas Supreme Court in Manbeck v. Austin Independent School District.

Finally, SB 2551 provides that a pool or a political subdivision that self-insures may establish an account for the payment of death benefits and lifetime income benefits which may accumulate assets in an amount that the pool or political subdivision, in its sole discretion, determines is necessary in order to pay death benefits and lifetime income benefits. The Public Funds Investment Act does not apply to the investment of assets in an account established under this section.

SB 2551was signed by the Governor June 10, 2019 and became effective on that date. However, a close reading of the bill is required to fully ascertain the effective date of each of the provisions of the legislation.

Work Status Reports

HB 387 by Rep. Cortez authorizes a treating doctor to delegate the authority to complete and sign a work status report regarding an injured employee’s ability to return to work to an advanced practice registered nurse who is licensed to practice under Chapter 301 of the Occupations Code. The legislature has previously granted this authority to physician assistants. The delegating treating doctor is responsible for the acts of those physician assistants or advanced practice registered nurses.

HB 387 was signed by the Governor June 10, 2019 and has an effective date of September 1, 2019.

Military Facility Bills

SB 935 by Sen. Hancock concerns the obligation of a workers’ compensation carrier to pay bills from medical facilities that operate as part of the Military Health System of the United States Department of Defense. One example is Brooke Army Medical Center. Federal hospitals have complained that some Texas workers’ compensation insurance carriers have refused or reduced payment for medical services provided to injured employees by federal military treatment facilities, which are then required by law to initiate federal debt collection actions against those employees. The bill seeks to address this issue by providing for the reimbursement of federal military treatment facilities under the workers’ compensation system. The reimbursement rates for medical services provided to an injured employee by a federal military treatment facility must be the amount charged by the facility as determined under Federal law.

The Division is required to pass rules to implement this provision. Those rules must include requirements for processing medical bills for services provided to an injured employee by a federal military treatment facility; and a separate medical dispute resolution process to resolve disputes over charges billed directly to an injured employee by a federal military treatment facility.

CSSB 935 was signed by the Governor June 4, 2019 and will take effect September 1, 2019. The bill states that the new provision applies only to health care services provided on or after January 1, 2020, in conjunction with a claim for workers ’ compensation benefits, regardless of the date on which the compensable injury that is the basis of the claim occurred.

PTSD Claims by First Responders

During the 85th Session, the Legislature adopted specific criteria for to form the basis for a compensable PTSD claim for first responders. This session, HB 2143 amended that section and provides that PTSD suffered by a first responder is a compensable injury under this subtitle only if it is based on a diagnosis that: the disorder is caused by one or more events occurring in the course and scope of the first responder’s employment so long as the event or events is a producing cause of the disorder.

HB 2143 was signed by the Governor June 10, 2019 and has an effective date of September 1, 2019. The bill states that the changes made apply only to a claim for workers ’ compensation benefits based on a compensable injury that occurs on or after the effective date of the bill (September 1, 2019). A claim based on a compensable injury that occurs before that date is governed by the law as it existed on the date the compensable injury occurred, and the former law was continued in effect for that purpose.

Definition of First Responders

HB 1090 by Rep. Bell expands the definition of “first responder” to include an emergency response operator or emergency services dispatcher who provides communication support services for an agency by responding to requests for assistance in emergencies; and other emergency response personnel employed by an agency.

HB 1090 was signed by the Governor June 10, 2019 and has an effective date of September 1, 2019.

Death Benefit Remarriage Provisions for Peace Officers and Others

Surviving spouses of first responders have been permitted to remarry without losing death benefit entitlement under the Texas Act. HB 2503 by Rep. Kacal extends that eligibility to the surviving spouses of other state employees such as peace officers, parole officers, jailers or guards or other employees described by Section 615.003(1), Government Code, or Section 501.001(5)(F). The new provision applies regardless of the date on which the death of the first responder or other individual occurred.

HB 2503 was signed by the Governor June 10, 2019 and has an effective date of September 1, 2019. The bill states that the new provisions apply only to an eligible spouse who remarries on or after the effective date of the bill (September 1, 2019). An eligible spouse who remarries before that date is governed by the law as it existed immediately before the effective date of this Act, and the former law was continued in effect for that purpose.

Peace Officer Presumptions

Since 2005 firefighters and EMTs have been entitled to claim that certain diseases and injuries are presumed to be related to their work. SB 1582 by Sen. Lucio expands the presumption statute to apply in some cases also to peace officers. The firefighter presumption for certain forms of cancer does not apply to peace officers under this legislation.

SB 1582 was signed by the Governor June 14, 2019 and has an effective date of September 1, 2019. The bill states that the changes made in this amendment apply to a claim for benefits or compensation brought on or after the effective date of the bill (September 1, 2019). 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 was continued in effect for that purpose.

Medical Marijuana

HB 3703 by Rep. Klick. The bill expands the circumstances in which low-THC cannabis can be prescribed from epilepsy to seven more diseases: a seizure disorder; multiple sclerosis; spasticity; amyotrophic lateral sclerosis; autism; terminal cancer; or an incurable neurodegenerative disease. In pertinent part, the bill provides:

A physician described by Section 169.002 may prescribe low-THC cannabis to a patient if: (1) the patient is a permanent resident of the state; (2) the physician complies with the registration requirements of Section 169.004; and (3) the physician certifies to the department that: (A) the patient is diagnosed with: (i) epilepsy; (ii) a seizure disorder; (iii) multiple sclerosis; (iv) spasticity; (v) amyotrophic lateral sclerosis; (vi) autism; (vii) terminal cancer; or (viii) an incurable neurodegenerative disease; and (B) the physician determines the risk of the medical use of low-THC cannabis by the patient is reasonable in light of the potential benefit for the patient.

This bill does not directly affect workers’ comp liability. However, it authorizes the use of low-THC cannabis in some circumstances, which may affect employer’s liability and workers’ compensation issues in the future.

HB 3703 was signed by the Governor June 14, 2019 and became effective on that date.

Contractor Notices

HB 1665 by Rep. Patterson. This bill eliminates the requirement that is currently found in § 406.145 that a hiring contractor and independent contractor notify the Division it has entered into a hiring agreement excepting itself from an earlier agreement affirming the independent relationship between them. Notification of such a hiring agreement would have to be provided at the division’s request. The bill applies to notification requirements to be provided on or after May 23, 2019, the date the Governor signed the bill.

Frivolous Regulatory Actions

SB 27 by Sen. Hughes. The bill expands the types of cases in which a prevailing party can recover reasonable attorney’s fees and costs incurred in defending against an action asserted by a state agency that has been found to be frivolous. The bill also sets a $1 million cap on the fees, expenses, and reasonable attorneys’ fees that can be awarded in any case involving such actions. The bill takes effect September 1, 2019 and applies only to a claim filed or regulatory action taken on or after that date. A claim filed or regulatory action taken before the effective date of the bill is governed by the law applicable to the claim or regulatory action immediately before the effective date of the bill, and that law was continued in effect for that purpose.

DWC and TDI Sunset

CSSB 619 by Sen. Birdwell. The Texas Sunset Act, requires the Sunset Advisory Commission and the Legislature to evaluate certain state agencies periodically to determine whether a public need exists for their continuation or their functions. A state agency is subject to the act if a date is set in statute for it to be reviewed or abolished.

CSSB 619 changes the sunset review process for a number of state agencies, including the Division of Workers’ Compensation and the Office of Injured Employee Counsel. The Sunset Advisory Commission periodically reviews state and other governmental entities. From time to time, the legislature changes the review schedule for certain agencies in order to balance the workload of the commission and to better align the review of agencies based on subject matter. SB 619 seeks to make adjustments to that schedule to better group entities set for sunset review in upcoming biennia, to remove certain entities from sunset review, and to make statutory modifications to the Texas Sunset Act.

CSSB 619 was signed by the Governor June 10, 2019 and became effective on that date.

SORM Sunset

SB 612 by Sen. Hall is the State Office of Risk Management Sunset bill. SORM’s responsibilities include oversight of state agency purchases of insurance coverage other than health or life insurance, such as property and casualty insurance and liability insurance. SORM also administers the state workers’ compensation program.
SB 612 continues the agency until September 1, 2031, and requires it to review and update its risk management program regularly. The bill also modifies the deadline by which state agencies are required to submit their annual reports to SORM and expands SORM’s board member training program. SB 612 becomes effective September 1, 2019.

TPCIGA Operations

SB 1063 by Sen. Hancock. The Texas Property and Casualty Insurance Guaranty Association (TPCIGA) is a nonprofit unincorporated legal entity composed of all member insurers. Member insurers have to remain members of TPCIGA as a condition of engaging in the business of insurance in Texas. The bill amends provisions in the Insurance Code governing the authority and operations of TPCIGA, and authorizes the association to recover costs and attorney’s fees incurred in certain enforcement proceedings.

SB 1063 was signed by the Governor May 31, 2019 and takes effect September 1, 2019.

Relativities in Ratemaking

SB 1336 by Sen. Zaffirini. The bill does away with the use of classification relativities in establishing workers’ compensation rates in favor of the loss cost method, which is used in the calculation of the vast majority of workers’ compensation premiums in Texas.

SB 1336 became law without the Governor’s signature and takes effect on September 1, 2019.