I 

111TH CONGRESS 

1ST SESSION H. R. 2459 

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

Injury Compensation Program. 

IN THE HOUSE OF REPRESENTATIVES 

MAY 18, 2009 

Mr. BURTON of Indiana (for himself and Mr. WEXLER) 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 2009’’. 

6 SEC. 2. BASIS FOR CALCULATING PROJECTED LOST EARN7 INGS. 

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

9 Act (42 U.S.C. 300aa–15(a)(3)(B)) is amended by strik10 ing all that follows ‘‘for loss of earnings’’ and inserting 


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1 the following: ‘‘determined on the basis of the annual esti2 mate of the average (mean) gross weekly earnings of full3 time wage and salary workers age 18 and over in the pri4 vate nonfarm sector (which includes all industries other 

5 than agricultural production of crops and livestock), as 

6 calculated annually by the Bureau of Labor Statistics 

7 from the quarter sample data of the Current Population 

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

9 Secretary may prescribe by regulation, less appropriate 

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

11 as determined by the Secretary.’’. 

12 SEC. 3. INCREASE OF AWARD IN THE CASE OF A VACCINE13 RELATED DEATH. 

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

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

16 ‘‘$250,000’’ and inserting ‘‘$300,000’’. 

17 SEC. 4. ALLOWING COMPENSATION FOR FAMILY COUN18 SELING EXPENSES AND EXPENSES OF ESTAB19 LISHING GUARDIANSHIP. 

20 (a) FAMILY COUNSELING EXPENSES IN POST-1988 

21 CASES.—Section 2115(a) of the Public Health Service Act 

22 (42 U.S.C. 300aa–15(a)) is amended by adding at the end 

23 the following: 

24 ‘‘(5) Actual nonreimbursable expenses that have 

25 been or will be incurred for family counseling deterVerDate Nov 24 2008 06:32 May 19, 2009 Jkt 079200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H2459.IH H2459

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1 mined to be reasonably necessary and that result 

2 from the vaccine-related injury for which the peti3 tioner seeks compensation.’’. 

4 (b) EXPENSES OF ESTABLISHING GUARDIANSHIPS IN

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

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

7 by adding at the end the following paragraph: 

8 ‘‘(6) Actual and nonreimbursable expenses that 

9 have been or will be incurred to establish and main10 tain a guardianship, conservatorship, or trust for an 

11 individual who has suffered a vaccine-related injury, 

12 including attorneys’ fees and other costs incurred in 

13 a proceeding to establish and maintain such a 

14 guardianship, conservatorship, or trust.’’. 

15 (c) CONFORMING AMENDMENT FOR CASES FROM

16 1988 AND EARLIER.—Section 2115(b) of the Public 

17 Health Service Act (42 U.S.C. 300aa–15(b)) is amend18 ed— 

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

20 end of the paragraph; 

21 (2) by redesignating paragraph (3) as para22 graph (5) and by inserting a closing parenthesis be23 fore the period in that paragraph; and 

24 (3) by inserting after paragraph (2) the fol25 lowing paragraphs: 


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

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

3 ‘‘(4) expenses of establishing and maintaining 

4 guardianships, conservatorships, or trusts (as pro5 vided in paragraph (6) of subsection (a)), and’’. 

6 SEC. 5. ALLOWING PAYMENT OF INTERIM ATTORNEYS’ 

7 FEES AND COSTS. 

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

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

10 following: 

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

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

13 States Court of Federal Claims, a special master 

14 may make an interim award of attorneys’ fees and 

15 costs if— 

16 ‘‘(A) the case involves a vaccine adminis17 tered on or after October 1, 1988, 

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

19 the special master determines that the peti20 tioner’s claim has a reasonable basis, 

21 ‘‘(C) the award is limited to reasonable at22 torneys’ fees and other costs (within the mean23 ing of paragraph (1)(B)) incurred in the pro24 ceeding, and 


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1 ‘‘(D) the petitioner provides documentation 

2 verifying the expenditure of the amount for 

3 which compensation is sought. 

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

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

6 be promptly paid by the Secretary pursuant to the 

7 special master’s order and without need of a judg8 ment. The special master’s order for interim attor9 neys’ fees and costs is not subject to review under 

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

11 master has made a determination regarding an 

12 award of attorneys’ fees and costs under paragraph 

13 (1). 

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

15 compensation on a petition under paragraph (1) 

16 shall be for the total attorneys’ fees and costs in17 curred in any proceeding on such petition, less the 

18 amount awarded for interim attorneys’ fees and 

19 costs. In determining fees and costs under para20 graph (1), a special master may reconsider and mod21 ify the amounts awarded for fees and costs under 

22 paragraph (4).’’. 


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

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

3 U.S.C. 300aa–15(e)), as amended by section 5, is amend4 ed by adding at the end the following: 

5 ‘‘(7) When a special master or court awards at6 torneys’ fees or costs under paragraph (1) or (4), it 

7 may order that such fees and costs be payable solely 

8 to the petitioner’s attorney if— 

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

10 ‘‘(B) the special master or court, after af11 fording to the Secretary and all interested per12 sons the opportunity to submit relevant infor13 mation, determines that— 

14 ‘‘(i) the petitioner cannot be located 

15 or refuses to respond to a request by the 

16 special master or court for information, 

17 and there is no practical alternative means 

18 to ensure that the attorney will be reim19 bursed for such fees and costs expedi20 tiously, or 

21 ‘‘(ii) there are other exceptional cir22 cumstances and good cause for paying 

23 such fees and costs solely to the peti24 tioner’s attorney.’’. 


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1 SEC. 7. EXTENSION OF STATUTE OF LIMITATIONS. 

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

3 Health Service Act (42 U.S.C. 300aa–16(a)) is amend4 ed— 

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

6 and inserting ‘‘6 years’’; and 

7 (2) in paragraph (3)— 

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

9 ‘‘6 years’’; and 

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

11 ‘‘6 years’’. 

12 (b) ADDITIONAL EXTENSION.— 

13 (1) LIMITATION PERIOD.—Notwithstanding sec14 tion 2116(a) of the Public Health Service Act (42 

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

16 forth in the Vaccine Injury Table that is adminis17 tered after September 30, 1988, and before the date 

18 of the enactment of this Act, if a vaccine-related in19 jury or death occurred as a result of the administra20 tion of such vaccine, the end of the limitation period 

21 for filing a petition is the later of— 

22 (A) the applicable date under section 

23 2116(a) of the Public Health Service Act (42 

24 U.S.C. 300aa–16(a)); or 

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

26 of the enactment of this Act. 


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1 (2) EFFECT OF PREVIOUS DISMISSAL.—Not2 withstanding section 2111(b)(2) of the Public 

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

4 petition is filed within the limitation period applica5 ble under paragraph (1), the petition may not be 

6 dismissed on the basis of a previous dismissal for 

7 untimely filing. 

8 (c) CLAIMS BASED ON REVISIONS TO TABLE.—Sec9 tion 2116(b) of the Public Health Service Act (42 U.S.C. 

10 300aa–16(b)) is amended by striking all that follows ‘‘file 

11 a petition for such compensation’’ and inserting the fol12 lowing: ‘‘if— 

13 ‘‘(1) the vaccine-related death or injury with re14 spect to which the petition is filed occurred no more 

15 than 8 years before the effective date of the revision 

16 of the table; and 

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

18 stated in subsection (a); or 

19 ‘‘(B) the date of occurrence of the first symp20 tom or manifestation of onset of injury occurred 

21 more than 4 years before the petition is filed, and 

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

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

24 (d) REPORTS.— 


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1 (1) TRANSMISSION.—The Secretary of Health 

2 and Human Services shall transmit to the Congress 

3 two annual reports that shall each include the fol4 lowing: 

5 (A) Identification of the number of peti6 tions filed for compensation under the National 

7 Vaccine Injury Compensation Program that 

8 would have been time-barred absent the limita9 tion period provided by subsection (b). 

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

11 on the ability of the Secretary to administer the 

12 National Vaccine Injury Compensation Program 

13 and adjudicate petitions under such Program in 

14 a timely manner. 

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

16 this subsection, the Secretary of Health and Human 

17 Services shall transmit— 

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

19 after the date of the enactment of this Act; and 

20 (B) the second report not later than 2 

21 years after the date of the enactment of this 

22 Act. 

23 SEC. 8. ADVISORY COMMISSION ON CHILDHOOD VACCINES. 

24 (a) SELECTION OF INDIVIDUALS INJURED BY VAC25 CINES AS PUBLIC MEMBERS.—Section 2119(a)(1)(B) of 


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

2 19(a)(1)(B)) is amended by striking all that follows the 

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

4 the legal representative of a child who has suffered a vac5 cine-related injury or death, and at least 1 other shall be 

6 either the legal representative of a child who has suffered 

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

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

9 (b) MANDATORY MEETING SCHEDULE ELIMI10 NATED.—Section 2119(c) of the Public Health Service Act 

11 (42 U.S.C. 300aa–19(c)) is amended by striking ‘‘not less 

12 often than four times per year and’’. 

13 SEC. 9. CONFORMING AMENDMENT TO TRUST FUND PROVI14 SION. 

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

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

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

18 and inserting ‘‘(as in effect on the effective date of the 

19 National Vaccine Injury Compensation Program Improve20 ment Act of 2009) for vaccine-related injury or death’’. 

21 SEC. 10. INCREASE IN LIMIT ON ADMINISTRATIVE EX22 PENSES. 

23 (a) INCREASE IN LIMIT ON ADMINISTRATIVE EX24 PENSES.—Section 9510(c)(1)(B) of the Internal Revenue 

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


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

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

3 (b) ADMINISTRATIVE EXPENSES OF BUREAU OF

4 PUBLIC DEBT.—Section 9510(c)(1) of the Internal Rev5 enue Code of 1986, as amended by section 9 and sub6 section (a), is further amended— 

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

8 the end; 

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

10 at the end and inserting ‘‘, or’’; and 

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

12 ‘‘(C) the payment of administrative and 

13 personnel expenses that the Bureau of the Pub14 lic Debt incurs for financial services for the 

15 Trust Fund.’’. 

16 SEC. 11. PUBLIC SERVICE ANNOUNCEMENT CAMPAIGN. 

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

18 U.S.C. 300aa–10(c)) is amended by striking the period at 

19 the end and inserting ‘‘, including by conducting a public 

20 service announcement campaign.’’. 

21 SEC. 12. APPLICATION. 

22 The provisions of and amendments made by sections 

23 2, 3, 4, 5, 6, 7, and 9 apply to a petition filed under sec24 tion 2111 of the Public Health Service Act (42 U.S.C. 


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1 300aa–11) if the petition is pending on or filed after the 

2 date of the enactment of this Act. 

Æ 


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