Governor Abbott Signs COVID Presumption Bill

Governor Greg Abbott signed Senate Bill 22 (Springer, R–Muenster) 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. Moreover, 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 Division has indicated that it intends to propose emergency rules that establish a procedure for employees to request their claims be reprocessed under the applicable standards. However, no such rules have been posted as of June 17, 2021. We anticipate the Division will also publish a template or written guide for employees to use who intend to request their claims be reprocessed.

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 legislation primarily affects political subdivisions, risk pools, and state employees. 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.