42 U.S.C. § 239b — Smallpox vaccine injury table

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-