I

106TH CONGRESS

2D SESSION H. R. 5327

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

Compensation Program.

IN THE HOUSE OF REPRESENTATIVES

SEPTEMBER 27, 2000

Mr. WELDON of Florida introduced the following bill; which was referred to

the Committee on Commerce

A BILL

To amend the Public Health Service Act with respect to

the 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 ‘‘Vaccine Injury Com5 pensation Program Corrective Amendments of 2000’’.

6 SEC. 2. PURPOSE OF PROGRAM.

7 Section 2110(a) of the Public Health Service Act

8 such Act (42 U.S.C. 300aa–10(a)) is amended by adding

9 at the end the following sentence: ‘‘Such Program is a re10 medial program that is to be construed, both as to causa-
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1 tion and damages, in a fashion that gives broad effect to

2 the remedial purpose of this subtitle. Concepts of sov3 ereign immunity do not apply in such Program.’’.

4 SEC. 3. BURDEN OF PROOF.

5 Section 2113 of the Public Health Service Act (42

6 U.S.C. 300aa–13) is amended—

7 (1) in subsection (a)(1)—

8 (A) in subparagraph (A), by striking ‘‘a

9 preponderance of the evidence’’ and inserting

10 the following: ‘‘submitting evidence sufficient to

11 justify a belief by a fair and impartial indi12 vidual that petitioner’s claims are well grounded

13 as to’’; and

14 (B) in the matter after and below subpara15 graph (B), by adding at the end the following:

16 ‘‘When, after consideration of all evidence and

17 material of record in a case, there is an approx18 imate balance of positive and negative evidence,

19 while applying the standard under subpara20 graph (A), regarding the merits of an issue ma21 terial to the determination of the matter, the

22 benefit of the doubt in resolving each such issue

23 shall be given to petitioner.’’;

24 (2) in subsection (a)(2)(B)—
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1 (A) by inserting ‘‘only’’ before ‘‘include in2 fection’’; and

3 (B) by inserting a comma after ‘‘metabolic

4 disturbances’’;

5 (3) in subsection (a), by adding at the end the

6 following paragraph:

7 ‘‘(3) Any defense raised by respondent that the

8 illness, disability, injury, condition, or death de9 scribed in the petition was in fact due to factors un10 related to the administration of the vaccine must be

11 proved by clear and convincing evidence and may not

12 be made on the basis of a repudiation of the Vaccine

13 Injury Table.’’; and

14 (4) in subsection (b)(1), in the matter after and

15 below subparagraph (B), by striking ‘‘shall consider

16 the entire record and the course of the injury’’ and

17 inserting the following: ‘‘shall consider the entire

18 record. In the evaluation of damages and future

19 needs, the special master or court shall consider the

20 course of injury’’.

21 SEC. 4. COMPENSATION ISSUES.

22 Section 2115 of the Public Health Service Act (42

23 U.S.C. 300aa–15) is amended—

24 (1) in subsection (a)—

25 (A) in paragraph (1)(A)—
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1 (i) in clause (ii), by striking ‘‘and’’ at

2 the end;

3 (ii) in clause (iii), by striking the pe4 riod at the end of subclause (II) and in5 serting ‘‘; and’’; and

6 (iii) by adding at the end the fol7 lowing clause:

8 ‘‘(iv) are necessary for the establishment

9 and maintenance of a trust to receive program

10 funds.’’;

11 (B) in paragraph (4), by adding after the

12 period the following sentence: ‘‘No reduction to

13 net present value shall be applied to this por14 tion of a petitioner’s award.’’; and

15 (C) by adding at the end the following

16 paragraph:

17 ‘‘(5) Actual unreimbursable expenses that have

18 been or will be incurred for family counseling and/

19 or training determined to be reasonably necessary

20 and that result from the vaccine-related injury for

21 which the petitioner seeks compensation.’’;

22 (2) in subsection (b)—

23 (A) in paragraph (1), by adding ‘‘and’’

24 after the comma at the end;
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1 (B) in paragraph (2), by striking ‘‘, and’’

2 and inserting a period; and

3 (C) by striking paragraph (3); and

4 (3) in subsection (e), by adding at the end the

5 following paragraph:

6 ‘‘(4)(A) During the pendency of a petition filed

7 under section 2111 (whether for a vaccine adminis8 tered after the effective date of this part or before

9 such date), the special master or court may, upon

10 application of the petitioner, award payments to

11 cover the petitioner’s reasonable attorneys’ fees and

12 other costs that have been incurred with respect to

13 the petition.

14 ‘‘(B) Payments under subparagraph (A) re15 garding the petition involved may not be made more

16 frequently than once every 90 days.’’ .

17 SEC. 5. LIMITATIONS OF ACTIONS.

18 Section 2116 of the Public Health Service Act (42

19 U.S.C. 300aa–16) is amended—

20 (1) in subsection (a)—

21 (A) in paragraph (2), by striking ‘‘36

22 months’’ and inserting ‘‘72 months’’;

23 (B) in paragraph (3)—

24 (i) by striking ‘‘24 months’’ and in25 serting ‘‘36 months’’; and
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1 (ii) by striking ‘‘48 months’’ and in2 serting ‘‘72 months’’; and

3 (C) by adding after and below paragraph

4 (3) the following:

5 ‘‘Notwithstanding the limitations contained in this subtitle

6 as amended by the Vaccine Injury Compensation Program

7 Corrective Amendments of 2000, the time period for filing

8 a petition shall be extended an additional 36 months from

9 the date the petitioner first knew or reasonably should

10 have known that the petitioner may have been eligible for

11 compensation under this subtitle, including knowledge not

12 only that the injury or death involved may have been

13 caused by the vaccine, but also that a petition under sec14 tion 2111 was a potential remedy.’’;

15 (2) in subsection (b), in the matter preceding

16 paragraph (1), by striking ‘‘2 years’’ and inserting

17 ‘‘72 months’’; and

18 (3) by adding at the end the following sub19 sections:

20 ‘‘(d) The statute of limitations for filing a petition

21 under section 2111 shall be tolled until petitioner reaches

22 the age of 18, and, if a petitioner is incompetent, until

23 24 months after a guardian is appointed or otherwise

24 qualified by a court of competent jurisdiction.
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1 ‘‘(e) Notwithstanding section 2114(c)(4) or

2 2111(b)(2), if a petitioner who previously filed a petition

3 under section 2111 was denied compensation because of

4 (1) failure to satisfy the former $1,000 unreimbursed ex5 penses requirement of section 2111(c)(1)(D)(I), or (2)

6 failure to satisfy the filing deadlines set forth in section

7 2114, in any case in which the petitioner would have satis8 fied the limitations of actions provisions of this subtitle

9 as amended by the Vaccine Injury Compensation Program

10 Corrective Amendments of 2000, then the petitioner shall

11 have the right to refile the petition within 72 months after

12 reaching the age of majority, or within 24 months after

13 the effective date of such Amendments, whichever is the

14 longer period.’’.

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