I 

108TH CONGRESS 

1ST SESSION H. R. 1349

To amend the Public Health Service Act with respect to the National Vaccine 

Injury Compensation Program. 

IN THE HOUSE OF REPRESENTATIVES 

MARCH 19, 2003

Mr. BURTON of Indiana (for himself, Mr. PALLONE, Mr. SESSIONS, Mr. 

PAUL, Mrs. JO ANN DAVIS of Virginia, Mrs. MALONEY, Mr. FORD, Mr. 

MOORE, Mr. RYUN of Kansas, Mr. DUNCAN, Mr. STENHOLM, Mr. 

THORNBERRY, Mr. NADLER, Mr. WAMP, Mr. ALLEN, Mr. LATOURETTE, 

Mr. NORWOOD, Mr. ACKERMAN, Mr. PLATTS, Ms. WATSON, Mrs. CUBIN, 

Mr. SHAYS, Mr. GUTKNECHT, Mr. HOSTETTLER, Mr. HOEKSTRA, Mr. 

TANCREDO, Mr. TOOMEY, Mr. TURNER of Ohio, Mr. SMITH of Michigan, 

Mr. BARTLETT of Maryland, and Mr. JONES of North Carolina) introduced the following bill; which was referred to the Committee on Energy 

and Commerce 

A BILL

To amend the Public Health Service Act with respect to 

the National Vaccine Injury Compensation Program.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘National Vaccine In5 jury Compensation Program Improvement Act of 2003’’. 
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1 SEC. 2. BASIS FOR CALCULATING PROJECTED LOST EARN2 INGS. 

3 Section 2115(a)(3)(B) of the Public Health Service 

4 Act (42 U.S.C. 300aa–15(a)(3)(B)) is amended by strik5 ing all that follows ‘‘for loss of earnings’’ and inserting 

6 the following: ‘‘determined on the basis of the annual esti7 mate of the average (mean) gross weekly earnings of full8 time wage and salary workers age 18 and over in the pri9 vate nonfarm sector (which includes all industries other 

10 than agricultural production of crops and livestock), as 

11 calculated annually by the Bureau of Labor Statistics 

12 from the quarter sample data of the Current Population 

13 Survey, or as calculated by such similar method as the 

14 Secretary may prescribe by regulation, less appropriate 

15 taxes and the average cost of a health insurance policy, 

16 as determined by the Secretary.’’. 

17 SEC. 3. INCREASE OF AWARD IN THE CASE OF A VACCINE18 RELATED DEATH. 

19 Section 2115(a)(2) of the Public Health Service Act 

20 (42 U.S.C. 300aa–15(a)(2)) is amended by striking 

21 ‘‘$250,000’’ and inserting ‘‘$300,000’’. 

22 SEC. 4. ALLOWING COMPENSATION FOR FAMILY COUN23 SELING EXPENSES AND EXPENSES OF ESTAB24 LISHING GUARDIANSHIP. 

25 (a) FAMILY COUNSELING EXPENSES IN POST-1988 

26 CASES.—Section 2115(a) of the Public Health Service Act 
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1 (42 U.S.C. 300aa–15(a)) is amended by adding at the end 

2 the following: 

3 ‘‘(5) Actual nonreimbursable expenses that have 

4 been or will be incurred for family counseling deter5 mined to be reasonably necessary and that result 

6 from the vaccine-related injury for which the peti7 tioner seeks compensation.’’. 

8 (b) EXPENSES OF ESTABLISHING GUARDIANSHIPS IN

9 POST-1988 CASES.—Section 2115(a) of the Public Health 

10 Service Act (42 U.S.C. 300aa–15(a)) is further amended 

11 by adding at the end the following paragraph: 

12 ‘‘(6) Actual and nonreimbursable expenses that 

13 have been or will be incurred to establish and main14 tain a guardianship, conservatorship, or trust for an 

15 individual who has suffered a vaccine-related injury, 

16 including attorneys’ fees and other costs incurred in 

17 a proceeding to establish and maintain such a 

18 guardianship, conservatorship, or trust.’’. 

19 (c) CONFORMING AMENDMENT FOR CASES FROM

20 1988 AND EARLIER.—Section 2115(b) of the Public 

21 Health Service Act (42 U.S.C. 300aa–15(b)) is amend22 ed—

23 (1) in paragraph (2), by striking ‘‘and’’ at the 

24 end of the paragraph; 
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1 (2) by redesignating paragraph (3) as para2 graph (5) and by inserting a closing parenthesis be3 fore the period in that paragraph; and 

4 (3) by inserting after paragraph (2) the fol5 lowing paragraphs: 

6 ‘‘(3) family counseling expenses (as provided in 

7 paragraph (5) of subsection (a)), 

8 ‘‘(4) expenses of establishing and maintaining 

9 guardianships, conservatorships, or trusts (as pro10 vided in paragraph (6) of subsection (a)), and’’. 

11 SEC. 5. ALLOWING PAYMENT OF INTERIM ATTORNEYS’ 

12 FEES AND COSTS. 

13 Section 2115(e) of the Public Health Service Act (42 

14 U.S.C. 300aa–15(e)) is amended by adding at the end the 

15 following: 

16 ‘‘(4) Upon completion of a conference required 

17 by Rule 5 of Appendix J of the Rules of the United 

18 States Court of Federal Claims, a special master 

19 may make an interim award of attorneys’ fees and 

20 costs if—

21 ‘‘(A) the case involves a vaccine adminis22 tered on or after October 1, 1988, 

23 ‘‘(B) in tentative findings and conclusions, 

24 the special master determines that the peti25 tioner’s claim has a reasonable basis, 
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1 ‘‘(C) the award is limited to reasonable at2 torneys’ fees and other costs (within the mean3 ing of paragraph (1)(B)) incurred in the pro4 ceeding, and 

5 ‘‘(D) the petitioner provides documentation 

6 verifying the expenditure of the amount for 

7 which compensation is sought. 

8 ‘‘(5) An interim award of attorneys’ fees and 

9 costs by a special master under paragraph (4) shall 

10 be promptly paid by the Secretary pursuant to the 

11 special master’s order and without need of a judg12 ment. The special master’s order for interim attor13 neys’ fees and costs is not subject to review under 

14 sections 2112(e) and 2112(f) until after the special 

15 master has made a determination regarding an 

16 award of attorneys’ fees and costs under paragraph 

17 (1). 

18 ‘‘(6) The attorneys’ fees and costs awarded as 

19 compensation on a petition under paragraph (1) 

20 shall be for the total attorneys’ fees and costs in21 curred in any proceeding on such petition, less the 

22 amount awarded for interim attorneys’ fees and 

23 costs. In determining fees and costs under para24 graph (1), a special master may reconsider and mod-
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1 ify the amounts awarded for fees and costs under 

2 paragraph (4).’’. 

3 SEC. 6. PROCEDURE FOR PAYING ATTORNEYS’ FEES. 

4 Section 2115(e) of the Public Health Service Act (42 

5 U.S.C. 300aa–15(e)), as amended by section 5, is amend6 ed by adding at the end the following: 

7 ‘‘(7) When a special master or court awards at8 torneys’ fees or costs under paragraph (1) or (4), it 

9 may order that such fees and costs be payable solely 

10 to the petitioner’s attorney if—

11 ‘‘(A) the petitioner expressly consents, or 

12 ‘‘(B) the special master or court, after af13 fording to the Secretary and all interested per14 sons the opportunity to submit relevant infor15 mation, determines that—

16 ‘‘(i) the petitioner cannot be located 

17 or refuses to respond to a request by the 

18 special master or court for information, 

19 and there is no practical alternative means 

20 to ensure that the attorney will be reim21 bursed for such fees and costs expedi22 tiously, or 

23 ‘‘(ii) there are other exceptional cir24 cumstances and good cause for paying 
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1 such fees and costs solely to the peti2 tioner’s attorney.’’. 

3 SEC. 7. EXTENSION OF STATUTE OF LIMITATIONS. 

4 (a) GENERAL RULE.—Section 2116(a) of the Public 

5 Health Service Act (42 U.S.C. 300aa–16(a)) is amend6 ed—

7 (1) in paragraph (2), by striking ‘‘36 months’’ 

8 and inserting ‘‘6 years’’; and 

9 (2) in paragraph (3)—

10 (A) by striking ‘‘24 months’’ and inserting 

11 ‘‘6 years’’; and 

12 (B) by striking ‘‘48 months’’ and inserting 

13 ‘‘6 years’’. 

14 (b) ADDITIONAL EXTENSION.—

15 (1) LIMITATION PERIOD.—Notwithstanding sec16 tion 2116(a) of the Public Health Service Act (42 

17 U.S.C. 300aa–16(a)), in the case of a vaccine set 

18 forth in the Vaccine Injury Table that is adminis19 tered after September 30, 1988, and before the date 

20 of the enactment of this Act, if a vaccine-related in21 jury or death occurred as a result of the administra22 tion of such vaccine, the end of the limitation period 

23 for filing a petition is the later of—
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1 (A) the applicable date under section 

2 2116(a) of the Public Health Service Act (42 

3 U.S.C. 300aa–16(a)); or 

4 (B) the date that is 2 years after the date 

5 of the enactment of this Act. 

6 (2) EFFECT OF PREVIOUS DISMISSAL.—Not7 withstanding section 2111(b)(2) of the Public 

8 Health Service Act (42 U.S.C. 300aa–11(b)(2)), if a 

9 petition is filed within the limitation period applica10 ble under paragraph (1), the petition may not be 

11 dismissed on the basis of a previous dismissal for 

12 untimely filing. 

13 (c) CLAIMS BASED ON REVISIONS TO TABLE.—Sec14 tion 2116(b) of the Public Health Service Act (42 U.S.C. 

15 300aa–16(b)) is amended by striking all that follows ‘‘file 

16 a petition for such compensation’’ and inserting the fol17 lowing: ‘‘if—

18 ‘‘(1) the vaccine-related death or injury with re19 spect to which the petition is filed occurred no more 

20 than 8 years before the effective date of the revision 

21 of the table; and 

22 ‘‘(2)(A) the petition satisfies the conditions 

23 stated in subsection (a); or 

24 ‘‘(B) the date of occurrence of the first symp25 tom or manifestation of onset of injury occurred 
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1 more than 4 years before the petition is filed, and 

2 the petition is filed no more than 2 years after the 

3 effective date of the revision of the table.’’. 

4 (d) REPORTS.—

5 (1) TRANSMISSION.—The Secretary of Health 

6 and Human Services shall transmit to the Congress 

7 2 annual reports that shall each include the fol8 lowing: 

9 (A) Identification of the number of peti10 tions filed for compensation under the National 

11 Vaccine Injury Compensation Program that 

12 would have been time-barred absent the limita13 tion period provided by subsection (b) . 

14 (B) Describe the effects of subsection (b) 

15 on the ability of the Secretary to administer the 

16 National Vaccine Injury Compensation Program 

17 and adjudicate petitions under such Program in 

18 a timely manner. 

19 (2) DATES OF SUBMISSION.—In carrying out 

20 this subsection, the Secretary of Health and Human 

21 Services shall transmit—

22 (A) the first report not later than 1 year 

23 after the date of the enactment of this Act; and 
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1 (B) the second report not later than 2 

2 years after the date of the enactment of this 

3 Act. 

4 SEC. 8. ADVISORY COMMISSION ON CHILDHOOD VACCINES. 

5 (a) SELECTION OF INDIVIDUALS INJURED BY VAC6 CINES AS PUBLIC MEMBERS.—Section 2119(a)(1)(B) of 

7 the Public Health Service Act (42 U.S.C. 300aa–

8 19(a)(1)(B)) is amended by striking all that follows the 

9 comma and inserting the following: ‘‘of whom 1 shall be 

10 the legal representative of a child who has suffered a vac11 cine-related injury or death, and at least 1 other shall be 

12 either the legal representative of a child who has suffered 

13 a vaccine-related injury or death or an individual who has 

14 personally suffered a vaccine-related injury.’’. 

15 (b) MANDATORY MEETING SCHEDULE ELIMI16 NATED.—Section 2119(c) of the Public Health Service Act 

17 (42 U.S.C. 300aa–19(c)) is amended by striking ‘‘not less 

18 often than four times per year and’’. 

19 SEC. 9. CONFORMING AMENDMENT TO TRUST FUND PROVI20 SION. 

21 Section 9510(c)(1)(A) of the Internal Revenue Code 

22 of 1986 is amended by striking ‘‘(as in effect’’ and all 

23 that follows through ‘‘for vaccine-related injury or death’’ 

24 and inserting ‘‘(as in effect on the effective date of the 
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1 National Vaccine Injury Compensation Program Improve2 ment Act of 2003) for vaccine-related injury or death’’. 

3 SEC. 10. INCREASE IN LIMIT ON ADMINISTRATIVE EX4 PENSES. 

5 (a) INCREASE IN LIMIT ON ADMINISTRATIVE EX6 PENSES.—Section 9510(c)(1)(B) of the Internal Revenue 

7 Code of 1986 is amended by striking ‘‘(but not in excess 

8 of $9,500,000 for any fiscal year)’’ and inserting ‘‘(but 

9 not in excess of $10,000,000 for any fiscal year)’’. 

10 (b) ADMINISTRATIVE EXPENSES OF BUREAU OF

11 PUBLIC DEBT.—Section 9510(c)(1) of the Internal Rev12 enue Code of 1986, as amended by section 9 and sub13 section (a), is further amended—

14 (1) in subparagraph (A)(ii), by striking ‘‘or’’ at 

15 the end; 

16 (2) in subparagraph (B), by striking the period 

17 at the end and inserting ‘‘, and’’; and 

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

19 ‘‘(C) the payment of administrative and 

20 personnel expenses that the Bureau of the Pub21 lic Debt incurs for financial services for the 

22 Trust Fund.’’. 

23 SEC. 11. PUBLIC SERVICE ANNOUNCEMENT CAMPAIGN. 

24 Section 2110(c) of the Public Health Service Act (42 

25 U.S.C. 300aa–10(c)) is amended by striking the period at 
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1 the end and inserting ‘‘, including by conducting a public 

2 service announcement campaign.’’. 

3 SEC. 12. APPLICATION. 

4 The provisions of and amendments made by sections 

5 2, 3, 4, 5, 6, 7, and 9 apply to a petition filed under sec6 tion 2111 of the Public Health Service Act (42 U.S.C. 

7 300aa–11) if the petition is pending on or filed after the 

8 date of the enactment of this Act.

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