42 U.S.C. § 239d — Compensation for lost employment in-

Page 128 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 239b 1 So in original. No subsec. (b) has been enacted. such compensation or payment, the Secretary shall have the discretion to make a lump-sum payment, purchase an annuity or medical insur- ance policy, or execute an appropriate struc- tured settlement agreement, provided that such payment, annuity, policy, or agreement is actu- arially determined to have a value equal to the present value of the projected total amount of benefits or compensation that the individual is eligible to receive under such section or sec- tions. (f) Review of determination (1) Secretary’s review authority The Secretary may review a determination under this section at any time on the Sec- retary’s own motion or on application, and may affirm, vacate, or modify such determina- tion in any manner the Secretary deems ap- propriate. The Secretary shall develop a proc- ess by which an individual may file a request for reconsideration of any determination made by the Secretary under this section. (2) Judicial and administrative review No court of the United States, or of any State, District, territory or possession thereof, shall have subject matter jurisdiction to re- view, whether by mandamus or otherwise, any action by the Secretary under this section. No officer or employee of the United States shall review any action by the Secretary under this section (unless the President specifically di- rects otherwise). (July 1, 1944, ch. 373, title II, § 262, as added Pub. L. 108–20, § 2, Apr. 30, 2003, 117 Stat. 640.) § 239b. Smallpox vaccine injury table (a) 1 Smallpox vaccine injury table (1) Establishment required The Secretary shall establish by interim final regulation a table identifying adverse ef- fects (including injuries, disabilities, illnesses, conditions, and deaths) that shall be presumed to result from the administration of (or expo- sure to) a smallpox vaccine, and the time pe- riod in which the first symptom or manifesta- tion of onset of each such adverse effect must manifest in order for such presumption to apply. (2) Amendments The Secretary may by regulation amend the table established under paragraph (1). An amendment to the table takes effect on the date of the promulgation of the final rule that makes the amendment, and applies to all re- quests for benefits or compensation under this part that are filed on or after such date or are pending as of such date. In addition, the amendment applies retroactively to an indi- vidual who was not with respect to the injury involved an eligible individual under the table as in effect before the amendment but who with respect to such injury is an eligible indi- vidual under the table as amended. With re- spect to a request for benefits or compensation under this part by an individual who becomes an eligible individual as described in the pre- ceding sentence, the Secretary may not pro- vide such benefits or compensation unless the request (or amendment to a request, as appli- cable) is filed before the expiration of one year after the effective date of the amendment to the table in the case of an individual to whom the vaccine was administered and before the expiration of two years after such effective date in the case of a request based on acci- dental vaccinia inoculation. (July 1, 1944, ch. 373, title II, § 263, as added Pub. L. 108–20, § 2, Apr. 30, 2003, 117 Stat. 641.) § 239c. Medical benefits (a) In general Subject to the succeeding provisions of this section, the Secretary shall make payment or reimbursement for medical items and services as reasonable and necessary to treat a covered injury of an eligible individual, including the services, appliances, and supplies prescribed or recommended by a qualified physician, which the Secretary considers likely to cure, give re- lief, reduce the degree or the period of dis- ability, or aid in lessening the amount of monthly compensation. (b) Benefits secondary to other coverage Payment or reimbursement for services or benefits under subsection (a) shall be secondary to any obligation of the United States or any third party (including any State or local govern- mental entity, private insurance carrier, or em- ployer) under any other provision of law or con- tractual agreement, to pay for or provide such services or benefits. (July 1, 1944, ch. 373, title II, § 264, as added Pub. L. 108–20, § 2, Apr. 30, 2003, 117 Stat. 641.) § 239d. Compensation for lost employment in- come (a) In general Subject to the succeeding provisions of this section, the Secretary shall provide compensa- tion to an eligible individual for loss of employ- ment income (based on such income at the time of injury) incurred as a result of a covered in- jury, at the rate specified in subsection (b). (b) Amount of compensation (1) In general Compensation under subsection (a) shall be at the rate of 662⁄3 percent of the relevant pay period (weekly, monthly, or otherwise), except as provided in paragraph (2). (2) Augmented compensation for dependents If an eligible individual has one or more de- pendents, the basic compensation for loss of employment income as described in paragraph (1) shall be augmented at the rate of 81⁄3 per- cent. (3) Consideration of other programs (A) In general The Secretary may consider the provisions of sections 8114, 8115, and 8146a of title 5, and any implementing regulations, in deter- Page 129 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 239e 1 So in original. Probably should be ‘‘involved’’. 1 See References in Text note below. mining the amount of payment under sub- section (a) and the circumstances under which such payments are reasonable and necessary. (B) Minors With respect to an eligible individual who is a minor, the Secretary may consider the provisions of section 8113 of title 5, and any implementing regulations, in determining the amount of payment under subsection (a) and the circumstances under which such payments are reasonable and necessary. (4) Treatment of self-employment income For purposes of this section, the term ‘‘em- ployment income’’ includes income from self- employment. (c) Limitations (1) Benefits secondary to other coverage (A) In general Any compensation under subsection (a) shall be secondary to the obligation of the United States or any third party (including any State or local governmental entity, pri- vate insurance carrier, or employer), under any other law or contractual agreement, to pay compensation for loss of employment in- come or to provide disability or retirement benefits. (B) Relation to other obligations Compensation under subsection (a) shall not be made to an eligible individual to the extent that the total of amounts paid to the individual under such subsection and under the other obligations referred to in subpara- graph (A) is an amount that exceeds the rate specified in subsection (b)(1). If under any such other obligation a lump-sum payment is made, such payment shall, for purposes of this paragraph, be deemed to be received over multiple years rather than received in a single year. The Secretary may, in the dis- cretion of the Secretary, determine how to apportion such payment over multiple years. (2) No benefits in case of death No payment shall be made under subsection (a) in compensation for loss of employment in- come subsequent to the receipt, by the sur- vivor or survivors of an eligible individual, of benefits under section 239e of this title for death. (3) Limit on total benefits (A) In general Except as provided in subparagraph (B)— (i) total compensation paid to an indi- vidual under subsection (a) shall not ex- ceed $50,000 for any year; and (ii) the lifetime total of such compensa- tion for the individual may not exceed an amount equal to the amount authorized to be paid under section 239e of this title. (B) Permanent and total disability The limitation under subparagraph (A)(ii) does not apply in the case of an eligible indi- vidual who is determined to have a covered injury or injuries meeting the definition of disability in section 416(i) of this title. (4) Waiting period (A) In general Except as provided in subparagraph (B), an eligible individual shall not be provided compensation under this section for the first 5 work days of loss of employment income. (B) Exception Subparagraph (A) does not apply if the pe- riod of loss of employment income of an eli- gible individual is 10 or more work days. (5) Termination of benefits No payment shall be made under subsection (a) in compensation for loss of employment in- come once the eligible individual involves 1 reaches the age of 65. (d) Benefit in addition to medical benefits A benefit under subsection (a) shall be in addi- tion to any amounts received by an eligible indi- vidual under section 239c of this title. (July 1, 1944, ch. 373, title II, § 265, as added Pub. L. 108–20, § 2, Apr. 30, 2003, 117 Stat. 642.) § 239e. Payment for death (a) Death benefit (1) In general The Secretary shall pay, in the case of an el- igible individual whose death is determined to have resulted from a covered injury or inju- ries, a death benefit in the amount determined under paragraph (2) to the survivor or sur- vivors in the same manner as death benefits are paid pursuant to the Public Safety Offi- cers’ Benefits Program under subpart 1 of part L of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3796 et seq.) 1 with respect to an eligible deceased (except that in the case of an eligible individual who is a minor with no living parent, the legal guardian shall be considered the survivor in the place of the parent). (2) Benefit amount (A) In general The amount of the death benefit under paragraph (1) in a fiscal year shall equal the amount of the comparable benefit calculated under the Public Safety Officers’ Benefits Program under subpart 1 of part L of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3796 et seq.) 1 in such fiscal year, without regard to any re- duction attributable to a limitation on ap- propriations, but subject to subparagraph (B). (B) Reduction for payments for lost employ- ment income The amount of the benefit as determined under subparagraph (A) shall be reduced by the total amount of any benefits paid under section 239d of this title with respect to lost employment income.