HR 1287 IH

To amend the Public Health Service Act with respect to the Vaccine Injury Compensation Program.

March 29, 2001

Mr. WELDON of Florida (for himself, Mr. NADLER, Mr. BURTON of Indiana, Mr. FRANK, Mr. SESSIONS, Mr. MCGOVERN, Mr. HORN, Ms. MCCARTHY of Missouri, and Mr. TURNER) introduced the following bill; which was referred to the Committee on Energy and Commerce

To amend the Public Health Service Act with respect to the Vaccine Injury Compensation Program.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Vaccine Injured Children's Compensation Act of 2001'.

SEC. 2. PURPOSE OF PROGRAM.

Section 2110(a) of the Public Health Service Act, such Act (42 U.S.C. 300aa-10(a)) is amended by adding at the end the following sentence: `Such Program is a remedial program that is to be construed, both as to causation and damages, in a fashion that gives broad effect to the remedial purpose of this subtitle. Concepts of sovereign immunity do not apply in such Program.'.

SEC. 3. BURDEN OF PROOF.

Section 2113 of the Public Health Service Act (42 U.S.C. 300aa-13) is amended--

(1) in subsection (a)(1)--

(A) in subparagraph (A), by striking `a preponderance of the evidence' and inserting the following: `submitting evidence sufficient to justify a belief by a fair and impartial individual that petitioner's claims are well grounded as to'; and

(B) in the matter after and below subparagraph (B), by adding at the end the following: `When, after consideration of all evidence and material of record in a case, there is an approximate balance of positive and negative evidence, while applying the standard under subparagraph (A), regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to petitioner.';

(2) in subsection (a)(2)(B)--

(A) by inserting `only' before `include infection'; and

(B) by inserting a comma after `metabolic disturbances';

(3) in subsection (a), by adding at the end the following paragraph:

`(3) Any defense raised by respondent that the illness, disability, injury, condition, or death described in the petition was in fact due to factors unrelated to the administration of the vaccine must be proved by clear and convincing evidence and may not be made on the basis of a repudiation of the Vaccine Injury Table.'; and

(4) in subsection (b)(1), in the matter after and below subparagraph (B), by striking `shall consider the entire record and the course of the injury' and inserting the following: `shall consider the entire record. In the evaluation of damages and future needs, the special master or court shall consider the course of injury'.

SEC. 4. COMPENSATION ISSUES.

Section 2115 of the Public Health Service Act (42 U.S.C. 300aa-15) is amended--

(1) in subsection (a)--

(A) in paragraph (1)(A)--

(i) in clause (ii), by striking `and' at the end;

(ii) in clause (iii), by striking the period at the end of subclause (II) and inserting `; and'; and

(iii) by adding at the end the following clause:

`(iv) are necessary for the establishment and maintenance of a trust to receive program funds.';

(B) in paragraph (4), by adding after the period the following sentence: `No reduction to net present value shall be applied to this portion of a petitioner's award.'; and

(C) by adding at the end the following paragraph:

`(5) Actual unreimbursable expenses that have been or will be incurred for family counseling and/

or training determined to be reasonably necessary and that result from the vaccine-related injury for which the petitioner seeks compensation.';

(2) in subsection (b)--

(A) in paragraph (1), by adding `and' after the comma at the end;

(B) in paragraph (2), by striking `, and' and inserting a period; and

(C) by striking paragraph (3); and

(3) in subsection (e), by adding at the end the following paragraph:

`(4)(A) During the pendency of a petition filed under section 2111 (whether for a vaccine administered after the effective date of this part or before such date), the special master or court may, upon application of the petitioner, award payments to cover the petitioner's reasonable attorneys' fees and other costs that have been incurred with respect to the petition.

`(B) Payments under subparagraph (A) regarding the petition involved may not be made more frequently than once every 90 days.' .

SEC. 5. LIMITATIONS OF ACTIONS.

Section 2116 of the Public Health Service Act (42 U.S.C. 300aa-16) is amended--

(1) in subsection (a)--

(A) in paragraph (2), by striking `36 months' and inserting `72 months';

(B) in paragraph (3)--

(i) by striking `24 months' and inserting `36 months'; and

(ii) by striking `48 months' and inserting `72 months'; and

(C) by adding after and below paragraph (3) the following:

`Notwithstanding the limitations contained in this subtitle as amended by the Vaccine Injury Compensation Program Corrective Amendments of 2001, the time period for filing a petition shall be extended an additional 36 months from the date the petitioner first knew or reasonably should have known that the petitioner may have been eligible for compensation under this subtitle, including knowledge not only that the injury or death involved may have been caused by the vaccine, but also that a petition under section 2111 was a potential remedy.';

(2) in subsection (b), in the matter preceding paragraph (1), by striking `2 years' and inserting `72 months'; and

(3) by adding at the end the following subsections:

`(d) The statute of limitations for filing a petition under section 2111 shall be tolled until petitioner reaches the age of 18, and, if a petitioner is incompetent, until 24 months after a guardian is appointed or otherwise qualified by a court of competent jurisdiction.

`(e) Notwithstanding section 2114(c)(4) or 2111(b)(2), if a petitioner who previously filed a petition under section 2111 was denied compensation because of (1) failure to satisfy the former $1,000 unreimbursed expenses requirement of section 2111(c)(1)(D)(I), or (2) failure to satisfy the filing deadlines set forth in section 2114, in any case in which the petitioner would have satisfied the limitations of actions provisions of this subtitle as amended by the Vaccine Injury Compensation Program Corrective Amendments of 2001, then the petitioner shall have the right to refile the petition within 72 months after reaching the age of majority, or within 24 months after the effective date of such Amendments, whichever is the longer period.'.

END