42 U.S.C. § 239a — Determination of eligibility and benefits

Page 127 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 239a (A) administration to the individual of a covered countermeasure during the effective period of the Declaration; or (B) accidental vaccinia inoculation of the individual in circumstances in which— (i) the vaccinia is contracted during the effective period of the Declaration or with- in 30 days after the end of such period; (ii) smallpox vaccine has not been ad- ministered to the individual; and (iii) the individual has been in contact with an individual who is (or who was acci- dentally inoculated by) a covered indi- vidual. (4) Declaration The term ‘‘Declaration’’ means the Declara- tion Regarding Administration of Smallpox Countermeasures issued by the Secretary on January 24, 2003, and published in the Federal Register on January 28, 2003. (5) Effective period of the Declaration The term ‘‘effective period of the Declara- tion’’ means the effective period specified in the Declaration, unless extended by the Sec- retary. (6) Eligible individual The term ‘‘eligible individual’’ means an in- dividual who is (as determined in accordance with section 239a of this title)— (A) a covered individual who sustains a covered injury in the manner described in paragraph (3)(A); or (B) an individual who sustains a covered injury in the manner described in paragraph (3)(B). (7) Smallpox emergency response plan The term ‘‘smallpox emergency response plan’’ or ‘‘plan’’ means a response plan detail- ing actions to be taken in preparation for a possible smallpox-related emergency during the period prior to the identification of an ac- tive case of smallpox either within or outside the United States. (b) Voluntary program The Secretary shall ensure that a State, local, or Department of Health and Human Services plan to vaccinate individuals that is approved by the Secretary establishes procedures to en- sure, consistent with the Declaration and any applicable guidelines of the Centers for Disease Control and Prevention, that— (1) potential participants are educated with respect to contraindications, the voluntary nature of the program, and the availability of potential benefits and compensation under this part; (2) there is voluntary screening provided to potential participants that can identify health conditions relevant to contraindications; and (3) there is appropriate post-inoculation medical surveillance that includes an evalua- tion of adverse health effects that may reason- ably appear to be due to such vaccine and prompt referral of, or the provision of appro- priate information to, any individual requir- ing health care as a result of such adverse health event. (July 1, 1944, ch. 373, title II, § 261, as added Pub. L. 108–20, § 2, Apr. 30, 2003, 117 Stat. 638.) § 239a. Determination of eligibility and benefits (a) In general The Secretary shall establish procedures for determining, as applicable with respect to an in- dividual— (1) whether the individual is an eligible indi- vidual; (2) whether an eligible individual has sus- tained a covered injury or injuries for which medical benefits or compensation may be available under sections 239c and 239d of this title, and the amount of such benefits or com- pensation; and (3) whether the covered injury or injuries of an eligible individual caused the individual’s death for purposes of benefits under section 239e of this title. (b) Covered individuals The Secretary may accept a certification, by a Federal, State, or local government entity or private health care entity participating in the administration of covered countermeasures under the Declaration, that an individual is a covered individual. (c) Criteria for reimbursement (1) Injuries specified in injury table In any case where an injury or other adverse effect specified in the injury table established under section 239b of this title as a known ef- fect of a vaccine manifests in an individual within the time period specified in such table, such injury or other effect shall be presumed to have resulted from administration of such vaccine. (2) Other determinations In making determinations other than those described in paragraph (1) as to the causation or severity of an injury, the Secretary shall employ a preponderance of the evidence stand- ard and take into consideration all relevant medical and scientific evidence presented for consideration, and may obtain and consider the views of qualified medical experts. (d) Deadline for filing request The Secretary shall not consider any request for a benefit under this part with respect to an individual, unless— (1) in the case of a request based on the ad- ministration of the vaccine to the individual, the individual files with the Secretary an ini- tial request for benefits or compensation under this part not later than one year after the date of administration of the vaccine; or (2) in the case of a request based on acci- dental vaccinia inoculation, the individual files with the Secretary an initial request for benefits or compensation under this part not later than two years after the date of the first symptom or manifestation of onset of the ad- verse effect. (e) Structured settlements at Secretary’s option In any case in which there is a reasonable likelihood that compensation or payment under section 239c, 239d, or 239e(b) of this title will be required for a period in excess of one year from the date an individual is determined eligible for 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-