From the U.S. House of Representatives Downloadable U.S. Code
[uscode.house.gov]
[Laws in effect as of January 5, 1999]

[CITE: 42USC300aa-15]

 
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
    CHAPTER 6A - PUBLIC HEALTH SERVICE
    SUBCHAPTER XIX - VACCINES
    Part 2 - National Vaccine Injury Compensation Program
    subpart a - program requirements
 
-HEAD-
    Sec. 300aa-15. Compensation
 
-STATUTE-
    (a) General rule
      Compensation awarded under the Program to a petitioner under
    section 300aa-11 of this title for a vaccine-related injury or
    death associated with the administration of a vaccine after October
    1, 1988, shall include the following:
        (1)(A) Actual unreimbursable expenses incurred from the date of
      the judgment awarding such expenses and reasonable projected
      unreimbursable expenses which -
          (i) result from the vaccine-related injury for which the
        petitioner seeks compensation,
          (ii) have been or will be incurred by or on behalf of the
        person who suffered such injury, and
          (iii)(I) have been or will be for diagnosis and medical or
        other remedial care determined to be reasonably necessary, or
          (II) have been or will be for rehabilitation, developmental
        evaluation, special education, vocational training and
        placement, case management services, counseling, emotional or
        behavioral therapy, residential and custodial care and service
        expenses, special equipment, related travel expenses, and
        facilities determined to be reasonably necessary.
        (B) Subject to section 300aa-16(a)(2) of this title, actual
      unreimbursable expenses incurred before the date of the judgment
      awarding such expenses which -
          (i) resulted from the vaccine-related injury for which the
        petitioner seeks compensation,
          (ii) were incurred by or on behalf of the person who suffered
        such injury, and
          (iii) were for diagnosis, medical or other remedial care,
        rehabilitation, developmental evaluation, special education,
        vocational training and placement, case management services,
        counseling, emotional or behavioral therapy, residential and
        custodial care and service expenses, special equipment, related
        travel expenses, and facilities determined to be reasonably
        necessary.
        (2) In the event of a vaccine-related death, an award of
      $250,000 for the estate of the deceased.
        (3)(A) In the case of any person who has sustained a
      vaccine-related injury after attaining the age of 18 and whose
      earning capacity is or has been impaired by reason of such
      person's vaccine-related injury for which compensation is to be
      awarded, compensation for actual and anticipated loss of earnings
      determined in accordance with generally recognized actuarial
      principles and projections.
        (B) In the case of any person who has sustained a
      vaccine-related injury before attaining the age of 18 and whose
      earning capacity is or has been impaired by reason of such
      person's vaccine-related injury for which compensation is to be
      awarded and whose vaccine-related injury is of sufficient
      severity to permit reasonable anticipation that such person is
      likely to suffer impaired earning capacity at age 18 and beyond,
      compensation after attaining the age of 18 for loss of earnings
      determined on the basis of the average gross weekly earnings of
      workers in the private, non-farm sector, less appropriate taxes
      and the average cost of a health insurance policy, as determined
      by the Secretary.
        (4) For actual and projected pain and suffering and emotional
      distress from the vaccine-related injury, an award not to exceed
      $250,000.
    (b) Vaccines administered before effective date
      Compensation awarded under the Program to a petitioner under
    section 300aa-11 of this title for a vaccine-related injury or
    death associated with the administration of a vaccine before
    October 1, 1988, may include the compensation described in
    paragraphs (1)(A) and (2) of subsection (a) of this section and may
    also include an amount, not to exceed a combined total of $30,000,
    for -
        (1) lost earnings (as provided in paragraph (3) of subsection
      (a) of this section),
        (2) pain and suffering (as provided in paragraph (4) of
      subsection (a) of this section), and
        (3) reasonable attorneys' fees and costs (as provided in
      subsection (e) of this section. (FOOTNOTE 1)
       (FOOTNOTE 1) So in original.  Probably should be preceded by a
    closing parenthesis.
    (c) Residential and custodial care and service
      The amount of any compensation for residential and custodial care
    and service expenses under subsection (a)(1) of this section shall
    be sufficient to enable the compensated person to remain living at
    home.
    (d) Types of compensation prohibited
      Compensation awarded under the Program may not include the
    following:
        (1) Punitive or exemplary damages.
        (2) Except with respect to compensation payments under
      paragraphs (2) and (3) of subsection (a) of this section,
      compensation for other than the health, education, or welfare of
      the person who suffered the vaccine-related injury with respect
      to which the compensation is paid.
    (e) Attorneys' fees
      (1) In awarding compensation on a petition filed under section
    300aa-11 of this title the special master or court shall also award
    as part of such compensation an amount to cover -
        (A) reasonable attorneys' fees, and
        (B) other costs,
    incurred in any proceeding on such petition.  If the judgment of
    the United States Court of Federal Claims on such a petition does
    not award compensation, the special master or court may award an
    amount of compensation to cover petitioner's reasonable attorneys'
    fees and other costs incurred in any proceeding on such petition if
    the special master or court determines that the petition was
    brought in good faith and there was a reasonable basis for the
    claim for which the petition was brought.
      (2) If the petitioner, before October 1, 1988, filed a civil
    action for damages for any vaccine-related injury or death for
    which compensation may be awarded under the Program, and petitioned
    under section 300aa-11(a)(5) of this title to have such action
    dismissed and to file a petition for compensation under the
    Program, in awarding compensation on such petition the special
    master or court may include an amount of compensation limited to
    the costs and expenses incurred by the petitioner and the attorney
    of the petitioner before October 1, 1988, in preparing, filing, and
    prosecuting such civil action (including the reasonable value of
    the attorney's time if the civil action was filed under contingent
    fee arrangements).
      (3) No attorney may charge any fee for services in connection
    with a petition filed under section 300aa-11 of this title which is
    in addition to any amount awarded as compensation by the special
    master or court under paragraph (1).
    (f) Payment of compensation
      (1) Except as provided in paragraph (2), no compensation may be
    paid until an election has been made, or has been deemed to have
    been made, under section 300aa-21(a) of this title to receive
    compensation.
      (2) Compensation described in subsection (a)(1)(A)(iii) of this
    section shall be paid from the date of the judgment of the United
    States Court of Federal Claims under section 300aa-12 of this title
    awarding the compensation.  Such compensation may not be paid after
    an election under section 300aa-21(a) of this title to file a civil
    action for damages for the vaccine-related injury or death for
    which such compensation was awarded.
      (3) Payments of compensation under the Program and the costs of
    carrying out the Program shall be exempt from reduction under any
    order issued under part C of the Balanced Budget and Emergency
    Deficit Control Act of 1985 (2 U.S.C. 900 et seq.).
      (4)(A) Except as provided in subparagraph (B), payment of
    compensation under the Program shall be determined on the basis of
    the net present value of the elements of the compensation and shall
    be paid from the Vaccine Injury Compensation Trust Fund established
    under section 9510 of title 26 in a lump sum of which all or a
    portion may be used as ordered by the special master to purchase an
    annuity or otherwise be used, with the consent of the petitioner,
    in a manner determined by the special master to be in the best
    interests of the petitioner.
      (B) In the case of a payment of compensation under the Program to
    a petitioner for a vaccine-related injury or death associated with
    the administration of a vaccine before October 1, 1988, the
    compensation shall be determined on the basis of the net present
    value of the elements of compensation and shall be paid from
    appropriations made available under subsection (j) of this section
    in a lump sum of which all or a portion may be used as ordered by
    the special master to purchase an annuity or otherwise be used,
    with the consent of the petitioner, in a manner determined by the
    special master to be in the best interests of the petitioner.  Any
    reasonable attorneys' fees and costs shall be paid in a lump sum.
    If the appropriations under subsection (j) of this section are
    insufficient to make a payment of an annual installment, the
    limitation on civil actions prescribed by section 300aa-21(a) of
    this title shall not apply to a civil action for damages brought by
    the petitioner entitled to the payment.
      (C) In purchasing an annuity under subparagraph (A) or (B), the
    Secretary may purchase a guarantee for the annuity, may enter into
    agreements regarding the purchase price for and rate of return of
    the annuity, and may take such other actions as may be necessary to
    safeguard the financial interests of the United States regarding
    the annuity.  Any payment received by the Secretary pursuant to the
    preceding sentence shall be paid to the Vaccine Injury Compensation
    Trust Fund established under section 9510 of title 26, or to the
    appropriations account from which the funds were derived to
    purchase the annuity, whichever is appropriate.
    (g) Program not primarily liable
      Payment of compensation under the Program shall not be made for
    any item or service to the extent that payment has been made, or
    can reasonably be expected to be made, with respect to such item or
    service (1) under any State compensation program, under an
    insurance policy, or under any Federal or State health benefits
    program (other than under title XIX of the Social Security Act (42
    U.S.C. 1396 et seq.)), or (2) by an entity which provides health
    services on a prepaid basis.
    (h) Liability of health insurance carriers, prepaid health plans,
        and benefit providers
      No policy of health insurance may make payment of benefits under
    the policy secondary to the payment of compensation under the
    Program and -
        (1) no State, and
        (2) no entity which provides health services on a prepaid basis
      or provides health benefits,
    may make the provision of health services or health benefits
    secondary to the payment of compensation under the Program, except
    that this subsection shall not apply to the provision of services
    or benefits under title XIX of the Social Security Act (42 U.S.C.
    1396 et seq.).
    (i) Source of compensation
      (1) Payment of compensation under the Program to a petitioner for
    a vaccine-related injury or death associated with the
    administration of a vaccine before October 1, 1988, shall be made
    by the Secretary from appropriations under subsection (j) of this
    section.
      (2) Payment of compensation under the Program to a petitioner for
    a vaccine-related injury or death associated with the
    administration of a vaccine on or after October 1, 1988, shall be
    made from the Vaccine Injury Compensation Trust Fund established
    under section 9510 of title 26.
    (j) Authorization
      For the payment of compensation under the Program to a petitioner
    for a vaccine-related injury or death associated with the
    administration of a vaccine before October 1, 1988, there are
    authorized to be appropriated to the Department of Health and Human
    Services $80,000,000 for fiscal year 1989, $80,000,000 for fiscal
    year 1990, $80,000,000 for fiscal year 1991, $80,000,000 for fiscal
    year 1992, $110,000,000 for fiscal year 1993, and $110,000,000 for
    each succeeding fiscal year in which a payment of compensation is
    required under subsection (f)(4)(B) of this section.  Amounts
    appropriated under this subsection shall remain available until
    expended.
 
-SOURCE-
    (July 1, 1944, ch. 373, title XXI, Sec. 2115, as added Pub. L.
    99-660, title III, Sec. 311(a), Nov. 14, 1986, 100 Stat. 3767;
    amended Pub. L. 100-203, title IV, Sec. 4302(b), 4303(a)-(d)(1),
    (e), (g), 4307(5), (6), Dec. 22, 1987, 101 Stat. 1330-221 to
    1330-223, 1330-225; Pub. L. 100-360, title IV, Sec. 411(o)(1), July
    1, 1988, 102 Stat. 808; Pub. L. 101-239, title VI, Sec. 6601(c)(8),
    (l), Dec. 19, 1989, 103 Stat. 2286, 2290; Pub. L. 101-502, Sec.
    5(d), Nov. 3, 1990, 104 Stat. 1287; Pub. L. 102-168, title II, Sec.
    201(e), (f), Nov. 26, 1991, 105 Stat. 1103; Pub. L. 102-531, title
    III, Sec. 314, Oct. 27, 1992, 106 Stat. 3508; Pub. L. 102-572,
    title IX, Sec. 902(b)(1), Oct. 29, 1992, 106 Stat. 4516; Pub. L.
    103-66, title XIII, Sec. 13632(b), Aug. 10, 1993, 107 Stat. 646.)
 
-REFTEXT-
                             REFERENCES IN TEXT
      The Balanced Budget and Emergency Deficit Control Act of 1985,
    referred to in subsec. (f)(3), is title II of Pub. L. 99-177, Dec.
    12, 1985, 99 Stat. 1038. Part C of the Act is classified generally
    to subchapter I (Sec. 900 et seq.) of chapter 20 of Title 2, The
    Congress. For complete classification of this Act to the Code, see
    Short Title note set out under section 900 of Title 2 and Tables.
      The Social Security Act, referred to in subsecs. (g) and (h), is
    act Aug. 14, 1935, ch. 531, 49 Stat. 620, as amended.  Title XIX of
    the Social Security Act is classified generally to subchapter XIX
    (Sec. 1396 et seq.) of chapter 7 of this title.  For complete
    classification of this Act to the Code, see section 1305 of this
    title and Tables.
 
-COD-
                                CODIFICATION
      In subsecs. (a), (b), (e)(2), (f)(4)(B), (i), and (j), ''October
    1, 1988'' substituted for ''the effective date of this subpart'' on
    authority of section 323 of Pub. L. 99-660, as amended, set out as
    an Effective Date note under section 300aa-1 of this title.
 
-MISC3-
                              PRIOR PROVISIONS
      A prior section 300aa-15, act July 1, 1944, Sec. 2116, was
    successively renumbered by subsequent acts and transferred, see
    section 238m of this title.
      A prior section 2115 of act July 1, 1944, was successively
    renumbered by subsequent acts and transferred, see section 238l of
    this title.
                                 AMENDMENTS
      1993 - Subsec. (j). Pub. L. 103-66 substituted ''$110,000,000 for
    each succeeding fiscal year'' for ''$80,000,000 for each succeeding
    fiscal year''.
      1992 - Subsecs. (e)(1), (f)(2). Pub. L. 102-572 substituted
    ''United States Court of Federal Claims'' for ''United States
    Claims Court''.
      Subsec. (j). Pub. L. 102-531 increased authorization for fiscal
    year 1993 from $80,000,000 to $110,000,000.
      1991 - Subsec. (f)(4)(A). Pub. L. 102-168, Sec. 201(e)(1)(A),
    (2), struck out ''of the proceeds'' after ''portion'' and
    substituted ''Vaccine Injury Compensation Trust Fund established
    under section 9510 of title 26'' for ''trust fund''.
      Subsec. (f)(4)(B). Pub. L. 102-168, Sec. 201(e)(1)(B), which
    directed substitution of ''shall be paid from appropriations made
    available under subsection (j) of this section in a lump sum of
    which all or a portion'' for ''paid in 4 equal installments of
    which all or portion of the proceeds'' was executed by making the
    substitution for ''paid in 4 equal annual installments of which all
    or a portion of the proceeds'' to reflect the probable intent of
    Congress.
      Subsec. (f)(4)(C). Pub. L. 102-168, Sec. 201(f), added subpar.
    (C).
      1990 - Subsec. (e)(2). Pub. L. 101-502, Sec. 5(d)(1), inserted
    ''of compensation'' before ''limited to the costs''.
      Subsec. (f)(2). Pub. L. 101-502, Sec. 5(d)(2)(A), substituted
    ''section 300aa-21(a)'' for ''section 300aa-21(b)''.
      Subsec. (f)(4)(B). Pub. L. 101-502, Sec. 5(d)(2)(B), substituted
    ''subsection (j)'' for ''subsection (i)'' and ''the limitation on
    civil actions prescribed by section 300aa-21(a) of this title'' for
    ''section 300aa-11(a) of this title''.
      Subsec. (j). Pub. L. 101-502, Sec. 5(d)(3), inserted before
    period at end of first sentence '', and $80,000,000 for each
    succeeding fiscal year in which a payment of compensation is
    required under subsection (f)(4)(B) of this section''.
      1989 - Subsec. (b). Pub. L. 101-239, Sec. 6601(l)(1), substituted
    ''may include the compensation described in paragraphs (1)(A) and
    (2) of subsection (a) of this section and may also include an
    amount, not to exceed a combined total of $30,000, for - '' and
    cls. (1) to (3) for ''may not include the compensation described in
    paragraph (1)(B) of subsection (a) of this section and may include
    attorneys' fees and other costs included in a judgment under
    subsection (e) of this section, except that the total amount that
    may be paid as compensation under paragraphs (3) and (4) of
    subsection (a) of this section and included as attorneys' fees and
    other costs under subsection (e) of this section may not exceed
    $30,000.''
      Subsec. (e)(1). Pub. L. 101-239, Sec. 6601(l)(2)(A), substituted
    ''In awarding compensation on a petition filed under section
    300aa-11 of this title the special master or court shall also award
    as part of such compensation an amount to cover'' for ''The
    judgment of the United States Claims Court on a petition filed
    under section 300aa-11 of this title awarding compensation shall
    include an amount to cover''.
      Pub. L. 101-239, Sec. 6601(l)(2)(B), (C), substituted ''the
    special master or court may award an amount of compensation to
    cover'' for ''the court may include in the judgment an amount to
    cover'' and ''the special master or court determines that the
    petition was brought in good faith and there was a reasonable basis
    for the claim for which the petition'' for ''the court determines
    that the civil action was brought in good faith and there was a
    reasonable basis for the claim for which the civil action''.
      Subsec. (e)(2). Pub. L. 101-239, Sec. 6601(l)(2)(D), which
    directed amendment of par. (2) by substituting ''the special master
    or court may also award an amount of compensation'' for ''the
    judgment of the court on such petition may include an amount'',
    could not be executed because of the prior amendment by Pub. L.
    101-239, Sec. 6601(c)(8)(B), see Amendment note below.
      Pub. L. 101-239, Sec. 6601(c)(8), substituted ''and petitioned
    under section 300aa-11(a)(5) of this title to have such action
    dismissed'' for ''and elected under section 300aa-11(a)(4) of this
    title to withdraw such action'' and ''in awarding compensation on
    such petition the special master or court may include'' for ''the
    judgment of the court on such petition may include''.
      Subsec. (e)(3). Pub. L. 101-239, Sec. 6601(l)(2)(E), substituted
    ''awarded as compensation by the special master or court under
    paragraph (1)'' for ''included under paragraph (1) in a judgment on
    such petition''.
      Subsec. (f)(3). Pub. L. 101-239, Sec. 6601(l)(3)(A), inserted
    ''under the Program and the costs of carrying out the Program''
    after ''Payments of compensation''.
      Subsec. (f)(4)(A). Pub. L. 101-239, Sec. 6601(l)(3)(B), struck
    out ''made in a lump sum'' after ''the Program shall be'' and
    inserted ''and shall be paid from the trust fund in a lump sum of
    which all or a portion of the proceeds may be used as ordered by
    the special master to purchase an annuity or otherwise be used,
    with the consent of the petitioner, in a manner determined by the
    special master to be in the best interests of the petitioner''
    after ''elements of the compensation''.
      Subsec. (f)(4)(B). Pub. L. 101-239, Sec. 6601(l)(3)(C),
    substituted ''determined on the basis of the net present value of
    the elements of compensation and paid in 4 equal annual
    installments of which all or a portion of the proceeds may be used
    as ordered by the special master to purchase an annuity or
    otherwise be used, with the consent of the petitioner, in a manner
    determined by the special master to be in the best interests of the
    petitioner.  Any reasonable attorneys' fees and costs shall be paid
    in a lump sum'' for ''paid in 4 equal annual installments''.
      Subsec. (g). Pub. L. 101-239, Sec. 6601(l)(4)(A), inserted
    ''(other than under title XIX of the Social Security Act)'' after
    ''State health benefits program''.
      Subsec. (h). Pub. L. 101-239, Sec. 6601(l)(4)(B), inserted before
    period at end '', except that this subsection shall not apply to
    the provision of services or benefits under title XIX of the Social
    Security Act''.
      Subsec. (i)(1). Pub. L. 101-239, Sec. 6601(l)(5), which directed
    amendment of par. (1) by substituting ''(j)'' for ''(i)'', could
    not be executed because ''(i)'' did not appear.
      Subsec. (j). Pub. L. 101-239, Sec. 6601(l)(6), struck out ''and''
    after ''fiscal year 1991,'' and inserted '', $80,000,000 for fiscal
    year 1993'' after ''fiscal year 1992''.
      1988 - Subsec. (i)(1). Pub. L. 100-360, Sec. 411(o)(1)(A),
    substituted ''by the Secretary from appropriations under subsection
    (j)'' for ''from appropriations under subsection (i)''.
      Subsec. (j). Pub. L. 100-360, Sec. 411(o)(1)(B), inserted ''to
    the Department of Health and Human Services''.
      1987 - Subsec. (a). Pub. L. 100-203, Sec. 4302(b)(1), substituted
    ''effective date of this subpart'' for ''effective date of this
    part''.
      Pub. L. 100-203, Sec. 4303(d)(1)(A), struck out last two
    sentences which read as follows: ''Payments for projected expenses
    shall be paid on a periodic basis (but no payment may be made for a
    period in excess of 1 year).  Payments for pain and suffering and
    emotional distress and incurred expenses may be paid in a lump
    sum.''
      Subsec. (a)(1). Pub. L. 100-203, Sec. 4303(c), struck out last
    sentence of subpars. (A) and (B) each of which read as follows:
    ''The amount of unreimbursable expenses which may be recovered
    under this subparagraph shall be limited to the amount in excess of
    the amount set forth in section 300aa-11(c)(1)(D)(ii) of this
    title.''
      Subsec. (b). Pub. L. 100-203, Sec. 4303(e), substituted ''may not
    include the compensation described in paragraph (1)(B) of
    subsection (a) of this section and may include attorneys' fees and
    other costs included in a judgment under subsection (e) of this
    section, except that the total amount that may be paid as
    compensation under paragraphs (3) and (4) of subsection (a) of this
    section and included as attorneys' fees and other costs under
    subsection (e) of this section may not exceed $30,000'' for ''shall
    only include the compensation described in paragraphs (1)(A) and
    (2) of subsection (a) of this section''.
      Pub. L. 100-203, Sec. 4302(b)(1), substituted ''effective date of
    this subpart'' for ''effective date of this part''.
      Subsec. (e)(1). Pub. L. 100-203, Sec. 4307(5), substituted ''of
    the United States Claims Court'' for ''of a court'' in two places.
      Subsec. (e)(2). Pub. L. 100-203, Sec. 4302(b), substituted
    ''effective date of this subpart, filed a'' for ''effective date of
    this subchapter, filed a'' and ''effective date of this subpart in
    preparing'' for ''effective date of this part in preparing''.
      Subsec. (f). Pub. L. 100-203, Sec. 4303(d)(1)(B), (g), added par.
    (4) and redesignated a second subsec. (f), relating to the Program
    not being primarily liable, as subsec. (g).
      Subsec. (f)(2). Pub. L. 100-203, Sec. 4307(6), substituted
    ''United States Claims Court'' for ''district court of the United
    States''.
      Subsecs. (g), (h). Pub. L. 100-203, Sec. 4303(g), redesignated a
    second subsec. (f), relating to the Program not being liable, as
    (g) and redesignated former subsec. (g) as (h).
      Subsecs. (i), (j). Pub. L. 100-203, Sec. 4303(a), (b), added
    subsecs. (i) and (j).
                      EFFECTIVE DATE OF 1992 AMENDMENT
      Amendment by Pub. L. 102-572 effective Oct. 29, 1992, see section
    911 of Pub. L. 102-572, set out as a note under section 171 of
    Title 28, Judiciary and Judicial Procedure.
                      EFFECTIVE DATE OF 1991 AMENDMENT
      Amendment by section 201(f) of Pub. L. 102-168 effective as if in
    effect on and after Oct. 1, 1988, see section 201(i)(2) of Pub. L.
    102-168, set out as a note under section 300aa-11 of this title.
                      EFFECTIVE DATE OF 1990 AMENDMENT
      Amendment by Pub. L. 101-502 effective Sept. 30, 1990, see
    section 5(h) of Pub. L. 101-502, set out as a note under section
    300aa-11 of this title.
                      EFFECTIVE DATE OF 1989 AMENDMENT
      Amendment by Pub. L. 101-239 applicable to all pending and
    subsequently filed petitions, see section 6601(s)(2) of Pub. L.
    101-239, set out as a note under section 300aa-10 of this title.
                      EFFECTIVE DATE OF 1988 AMENDMENT
      Except as specifically provided in section 411 of Pub. L.
    100-360, amendment by Pub. L. 100-360, as it relates to a provision
    in the Omnibus Budget Reconciliation Act of 1987, Pub. L. 100-203,
    effective as if included in the enactment of that provision in Pub.
    L. 100-203, see section 411(a) of Pub. L. 100-360, set out as a
    Reference to OBRA; Effective Date note under section 106 of Title
    1, General Provisions.