I 116th CONGRESS 2d Session H. R. 7686 IN THE HOUSE OF REPRESENTATIVES July 20, 2020 Mr. Kennedy introduced the following bill; which was referred to the Committee on Energy and Commerce A BILL To amend the Public Health Service Act to establish a program to provide full compensation to any essential COVID–19 frontline worker who was seriously injured or died as a result of having COVID–19, and for other purposes.

1. Short title This Act may be cited as the COVID–19 Essential Workers Compensation Fund Act of 2020 . 2. Compensating essential COVID–19 frontline workers who are seriously injured or die Title II of the Public Health Service Act ( 42 U.S.C. 202 et seq.) is amended by adding at the end the following: E Compensating COVID–19 Frontline Workers Who are Seriously Injured or Die as a Result of Having COVID–19 275. Definitions In this part, the following definitions apply: (1) Claimant The term claimant means an individual filing a claim for compensation under section 275D(a)(1). (2) Collateral source The term collateral source means all collateral sources, including life insurance, pension funds, death benefit programs, and payments by Federal, State, or local governments related to injury or death as a result of having COVID–19. (3) Economic loss (A) The term economic loss means any pecuniary loss resulting from harm (including the loss of earnings or other benefits related to employment, replacement services loss, loss due to death, burial costs, loss of business or employment opportunities, past and anticipated out-of-pocket medical expense loss) to the extent recovery for such loss is allowed under applicable State law. (B) Notwithstanding subparagraph (A), in calculating economic loss for purposes of a claim for compensation under section 275C(a)(1), the total loss of earnings related to employment shall not exceed $200,000 for any 12-month period. (4) Eligible essential COVID–19 frontline worker The term eligible essential COVID–19 frontline worker means an essential COVID–19 frontline worker determined to be eligible for compensation under section 275C(d). (5) Essential COVID–19 frontline worker The term essential COVID–19 frontline worker means a worker whose job— (A) is included in the healthcare/public health category of essential critical infrastructure workers in version 3.0 of the guidance of the Department of Homeland Security issued on April 17, 2020, and titled Guidance on the Essential Critical Infrastructure Workforce: Ensuring Community and National Resilience in COVID–19 Response ; (B) is included in another category of essential critical infrastructure workers in version 3.0 of such guidance; (C) is to deliver goods or transport people during the COVID–19 public health emergency, but is not included in any of the categories described in subparagraphs (A) and (B); or (D) is determined by the Eligibility Committee to warrant treating such a worker as an essential COVID–19 frontline worker. (6) Noneconomic losses The term noneconomic losses means losses for physical and emotional pain, suffering, inconvenience, physical impairment, mental anguish, disfigurement, loss of enjoyment of life, loss of society and companionship, loss of consortium (other than loss of domestic service), hedonic damages, injury to reputation, and all other nonpecuniary losses of any kind or nature. (7) Secretary Except as inconsistent with this section, the term Secretary means the Secretary of Health and Human Services. (8) Seriously injured The term seriously injured means having injuries that— (A) give rise to a substantial risk of death; or (B) cause serious, permanent disfigurement or prolonged loss or impairment of the function of any body part or organ. (9) Special master The term Special Master means the Special Master appointed under section 275B(a). 275A. Compensation program The Secretary shall carry out a program to provide full compensation to any essential COVID–19 frontline worker (or one or more representatives acting on behalf of a deceased essential COVID–19 frontline worker) who was seriously injured or died as a result of having COVID–19. 275B. Administration (a) In General The Secretary, acting through a Special Master appointed by the Secretary, shall— (1) administer the compensation program established under this part; (2) promulgate all procedural and substantive rules for the administration of this part; and (3) employ and supervise hearing officers and other administrative personnel to perform the duties of the Special Master under this part. (b) Appointment of Special Master and Deputy Special Masters The Secretary may appoint a Special Master and no more than two Deputy Special Masters without regard to the provisions of title 5, United States Code, governing appointments in the competitive service. Any such employee shall serve at the pleasure of the Secretary. The Secretary shall fix the annual salary of the Special Master and the Deputy Special Masters. (c) Eligibility Committee (1) Establishment The Secretary shall establish a committee, to be known as the Eligibility Committee. (2) Composition The Eligibility Committee shall be composed of seven members, of which— (A) five shall be appointed by the Secretary of Health and Human Services, of which— (i) at least two shall be mental health professionals; and (ii) at least one shall be an infectious disease clinician; and (B) two shall be appointed by the Secretary of Labor. (3) Duties The Eligibility Committee, in consultation with the Special Master, shall determine— (A) as described in section 275(5)(C), the jobs, in addition to those described in section 275(5)(A), warranting treatment of workers performing such jobs as essential COVID–19 frontline workers; (B) in accordance with section 275C, any other requirements needing to be met to be eligible for compensation under this part; and (C) hear and decide appeals brought pursuant to section 275C(b)(3)(A). 275C. Determination of eligibility for compensation (a) Filing of Claim (1) In general A claimant may file a claim for compensation under this part with the Special Master. The claim shall be on the form developed under paragraph (2) and shall state the factual basis for eligibility for compensation and the amount of compensation sought. (2) Claim form (A) In general The Special Master shall develop a claim form that claimants shall use when submitting claims under paragraph (1). The Special Master shall ensure that such form can be filed electronically, if determined to be practicable. (B) Contents The form developed under subparagraph (A) shall request— (i) information from the claimant concerning the serious injury that the claimant suffered, or in the case of a claim filed with respect to a decedent information confirming the decedent's death, as a result of having COVID–19; (ii) in the case of a claim concerning such serious injury, information concerning any economic and noneconomic losses that the claimant suffered as a result of the serious injury; and (iii) information regarding collateral sources of compensation the claimant has received or is entitled to receive as a result of such injury or death. (3) Limitation No claim may be filed under paragraph (1) after calendar year 2029. (b) Review and determination (1) Review The Special Master shall review a claim submitted under subsection (a) and, with respect to a claimant determined to be an eligible individual, determine— (A) in the case of a claim concerning serious injury, the extent of the economic and noneconomic losses that the claimant suffered as a result of the injury; and (B) in the case of a claim concerning serious injury or death, the amount of compensation to which the claimant is entitled under this part. (2) Negligence With respect to a claimant, the Special Master shall not consider negligence or any other theory of liability. (3) Determination (A) Process Not later than 120 days after that date on which a claim is filed under subsection (a), the Special Master shall complete a review, make a determination, and provide written notice to the claimant, with respect to the matters that were the subject of the claim under review. Such a determination shall be final and not subject to judicial review, except that a claimant may appeal the Special Master’s determination to the Eligibility Committee established under section 275B(c). (B) Amount of compensation for seriously injured claimants The amount of the compensation awarded under this part to a claimant who was seriously injured as a result of having COVID–19 shall be equal to the amount of— (i) the economic losses and noneconomic losses of the claimant as a result of having COVID–19; less (ii) the collateral source compensation the claimant has received or is entitled to receive as a result of having COVID–19. (C) Additional compensation for decedents In lieu of any compensation described in subparagraph (B), the amount of the compensation awarded under this part in the case of a claimant who died as a result of having COVID–19 shall be— (i) full payment of any outstanding educational loans of the decedent, including private loans, including principal and interest; (ii) a death benefit of $250,000 paid to the estate of the decedent; and (iii) an additional death benefit of $100,000 paid to the spouse and each dependent of the decedent. (4) Rights of claimant A claimant in a review under paragraph (1) shall have— (A) the right to be represented by an attorney; (B) the right to present evidence, including the presentation of witnesses and documents; and (C) any other due process rights determined appropriate by the Special Master. (5) No punitive damages The Special Master may not include amounts for punitive damages in any compensation paid under a claim under this part. (6) No cap The Special Master— (A) shall, with respect to each claimant, award the full amount of the compensation calculated under paragraph (3); and (B) may not impose a cap on the total amount of such compensation. (c) No consideration of race, ethnicity, gender, religion, or sex Notwithstanding any other provision of law, the Special Master and Eligibility Committee may not award damages to a claimant as part of any compensation under this part using a calculation of the projected future earning potential of that claimant that takes into account race, color, ethnicity, national origin, religion, disability, or sex (including gender, gender identity, and sexual orientation). (d) Eligibility (1) In general A claimant shall be determined to be an eligible essential COVID–19 frontline worker for purposes of this subsection if the Special Master determines that such claimant, during the COVID–19 emergency period, is an essential COVID–19 frontline worker (or is a representative acting on behalf of a deceased essential COVID–19 frontline worker) who was seriously injured or died as a result of having (including being presumed to have) COVID–19, including an essential COVID–19 frontline worker who committed suicide because of a mental health condition that was exacerbated or contributed to by COVID–19. (2) Single claim Not more than one claim may be submitted under this part with respect to compensation arising from the death of an eligible essential COVID–19 frontline worker. (3) Definition In this subsection, the term COVID–19 emergency period has the meaning given to the term emergency period in section 1135(g)(1)(B) of the Social Security Act. 275D. Payments to eligible individuals (a) In general Not later than 20 days after the date on which a determination is made by the Special Master regarding the amount of compensation due a claimant under this part, the Special Master shall authorize payment to such claimant of the amount determined with respect to the claimant. (b) Payment authority This part constitutes budget authority in advance of appropriations Acts and represents the obligation of the Federal Government to provide for the payment of amounts for compensation under this part. 275E. Regulations Not later than 90 days after the date of enactment of this part, the Secretary, in consultation with the Special Master, shall promulgate regulations to carry out this part, including regulations with respect to— (1) forms to be used in submitting claims under this part; (2) the information to be included in such forms; (3) procedures for hearing and the presentation of evidence; (4) procedures to assist an individual in filing and pursuing claims under this part; and (5) other matters determined appropriate by the Secretary. 275F. Right of subrogation The United States shall have the right of subrogation with respect to any claim paid by the United States under this part. 275G. Report on health outcomes Not later than 2 years after the date of enactment of this part, the Secretary of Health and Human Services shall submit to the Congress and make publicly available a report on— (1) whether the duration for which a health care provider or other worker is exposed to individuals with COVID–19 impacts health outcomes; and (2) whether the number of essential COVID–19 frontline workers residing in a community impacted the spread of COVID–19 in the community. 275H. Funding (a) Compensation To pay the compensation owed to claimants under this part, there is authorized to be appropriated, and there is appropriated, out of amounts in the Treasury not otherwise obligated, such sums as may be necessary. (b) Administrative and support costs For the administrative and support costs of carrying out this part, there are authorized to be appropriated such sums as may be necessary. 275I. Sunset date The program under this part shall terminate on January 1, 2035. .