II

104TH CONGRESS

2D SESSION S. 2008

To amend title 38, United States Code, to provide benefits for certain children

of Vietnam veterans who are born with spina bifida, and for other purposes.

IN THE SENATE OF THE UNITED STATES

JULY 31, 1996

Mr. DASCHLE (for himself, Mr. ROCKEFELLER, Mr. KERRY, Mr. WELLSTONE,

Ms. MIKULSKI, Mr. BYRD, Mr. DODD, Mr. CONRAD, Mr. INOUYE, Mr.

PELL, Mr. SIMON, Mr. FEINGOLD, Mr. BREAUX, Mrs. BOXER, Mr. DORGAN, Mrs. FEINSTEIN, Mr. GLENN, Mr. HARKIN, Mr. ROBB, and Mr.

KENNEDY) introduced the following bill; which was read twice and referred to the Committee on Veterans’ Affairs

A BILL

To amend title 38, United States Code, to provide benefits

for certain children of Vietnam veterans who are born

with spina bifida, and for other purposes.

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

3 SECTION 1. REFERENCES TO TITLE 38, UNITED STATES

4 CODE.

5 Except as otherwise expressly provided, whenever in

6 this Act an amendment or repeal is expressed in terms

7 of an amendment to, or repeal of, a section or other provi-
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1 sion, the reference shall be considered to be made to a

2 section or other provision of title 38, United States Code.

3 SEC. 2. BENEFITS FOR THE CHILDREN OF VIETNAM VETER4 ANS WHO ARE BORN WITH SPINA BIFIDA.

5 (a) SHORT TITLE.—This section may be cited as the

6 ‘‘Agent Orange Benefits Act of 1996’’.

7 (b) ESTABLISHMENT OF NEW CHAPTER 18.—Part II

8 is amended by inserting after chapter 17 the following new

9 chapter:

10 ‘‘CHAPTER 18—BENEFITS FOR THE CHILDREN OF

11 VIETNAM VETERANS WHO ARE BORN WITH

12 SPINA BIFIDA.

‘‘Sec.

‘‘1801. Purpose.

‘‘1802. Definitions

‘‘1803. Health care.

‘‘1804. Vocational training.

‘‘1805. Monetary allowance.

‘‘1806. Effective date of awards.

13 ‘‘§ 1801. Purpose

14 ‘‘The purpose of this chapter is to provide for the

15 special needs of certain children of Vietnam veterans who

16 were born with the birth defect spina bifida, possibly as

17 the result of the exposure of one or both parents to herbi18 cides during active service in the Republic of Vietnam dur19 ing the Vietnam era, through the provision of health care,

20 vocational training, and monetary benefits.

21 ‘‘§ 1802. Definitions

22 ‘‘For the purposes of this chapter—
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1 ‘‘(1) the term ‘child’ means a natural child of

2 a Vietnam veteran, regardless of age or marital sta3 tus, who was conceived after the date on which the

4 veteran first entered the Republic of Vietnam during

5 the Vietnam era;

6 ‘‘(2) the term ‘Vietnam veteran’ means a vet7 eran who, during active military, naval, or air serv8 ice, served in the Republic of Vietnam during the

9 Vietnam era; and

10 ‘‘(3) the term ‘spina bifida’ means all forms of

11 spina bifida other than spina bifida occulta.

12 ‘‘§ 1803. Health care

13 ‘‘(a) In accordance with regulations the Secretary

14 shall prescribe, the Secretary shall provide such health

15 care under this chapter as the Secretary determines is

16 needed to a child of a Vietnam veteran who is suffering

17 from spina bifida, for any disability associated with such

18 condition.

19 ‘‘(b) The Secretary may provide health care under

20 this section directly or by contract or other arrangement

21 with a health care provider.

22 ‘‘(c) For the purposes of this section—

23 ‘‘(1) the term ‘health care’ means home care,

24 hospital care, nursing home care, outpatient care,

25 preventive care, habilitative and rehabilitative care,
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1 case management, and respite care, and includes the

2 training of appropriate members of a child’s family

3 or household in the care of the child and provision

4 of such pharmaceuticals, supplies, equipment, de5 vices, appliances, assistive technology, direct trans6 portation costs to and from approved sources of

7 health care authorized under this section, and other

8 materials as the Secretary determines to be nec9 essary;

10 ‘‘(2) the term ‘health care provider’ includes,

11 but is not limited to, specialized spina bifida clinics,

12 healthcare plans, insurers, organizations, institu13 tions, or any other entity or individual who furnishes

14 health care services that the Secretary determines

15 are covered under this section;

16 ‘‘(3) the term ‘home care’ means outpatient

17 care, habilitative and rehabilitative care, preventive

18 health services, and health-related services furnished

19 to an individual in the individual’s home or other

20 place of residence.

21 ‘‘(4) the term ‘hospital care’ means care and

22 treatment for a disability furnished to an individual

23 who has been admitted to a hospital as a patient;

24 ‘‘(5) the term ‘nursing home care’ means care

25 and treatment for a disability furnished to an indi-
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1 vidual who has been admitted to a nursing home as

2 a resident;

3 ‘‘(6) the term ‘outpatient care’ means care and

4 treatment of a disability, and preventive health serv5 ices, furnished to an individual other than hospital

6 care or nursing home care;

7 ‘‘(7) the term ‘preventive care’ means care and

8 treatment furnished to prevent disability or illness,

9 including periodic examinations, immunizations, pa10 tient health education, and such other services as

11 the Secretary determines are necessary to provide ef12 fective and economical preventive health care;

13 ‘‘(8) the term ‘habilitative and rehabilitative

14 care’ means such professional, counseling, and guid15 ance services and treatment programs (other than

16 vocational training under section 1804 of this title)

17 as are necessary to develop, maintain, or restore, to

18 the maximum extent, the functioning of a disabled

19 person; and

20 ‘‘(9) the term ‘respite care’ means care fur21 nished on an intermittent basis in a Department fa22 cility for a limited period to an individual who re23 sides primarily in a private residence when such care

24 will help the individual to continue residing in such

25 private residence.
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1 ‘‘§ 1804. Vocational training

2 ‘‘(a) Pursuant to such regulations as the Secretary

3 may prescribe, the Secretary may provide vocational train4 ing under this section to a child of a Vietnam veteran who

5 is suffering from spina bifida if the Secretary determines

6 that the achievement of a vocational goal by such child

7 is reasonably feasible.

8 ‘‘(b)(1) If a child elects to pursue a program of voca9 tional training under this section, the program shall be

10 designed in consultation with the child in order to meet

11 the child’s individual needs and shall be set forth in an

12 individualized written plan of vocational rehabilitation.

13 ‘‘(2)(A) Subject to subparagraph (B) of this para14 graph, a vocational training program under this sub15 section shall consist of such vocationally oriented services

16 and assistance, including such placement and post-place17 ment services and personal and work adjustment training,

18 as the Secretary determines are necessary to enable the

19 child to prepare for and participate in vocational training

20 or employment.

21 ‘‘(B) A vocational training program under this sub22 section—

23 ‘‘(i) may not exceed 24 months unless, based on

24 a determination by the Secretary that an extension

25 is necessary in order for the child to achieve a voca26 tional goal identified (before the end of the first 24
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1 months of such program) in the written plan formu2 lated for the child, the Secretary grants an extension

3 for a period not to exceed 24 months;

4 ‘‘(ii) may not include the provision of any loan

5 or subsistence allowance or any automobile adaptive

6 equipment; and

7 ‘‘(iii) may include a program of education at an

8 institution of higher learning only in a case in which

9 the Secretary determines that the program involved

10 is predominantly vocational in content.

11 ‘‘(c)(1) A child who is pursuing a program of voca12 tional training under this section who is also eligible for

13 assistance under a program under chapter 35 of this title

14 may not receive assistance under both of such programs

15 concurrently but shall elect (in such form and manner as

16 the Secretary may prescribe) under which program to re17 ceive assistance.

18 ‘‘(2) The aggregate period for which a child may re19 ceive assistance under this section and chapter 35 of this

20 title may not exceed 48 months (or the part-time equiva21 lent thereof).

22 ‘‘§ 1805. Monetary allowance

23 ‘‘(a) The Secretary shall pay a monthly allowance

24 under this chapter to any child of a Vietnam veteran for
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1 disability resulting from spina bifida suffered by such

2 child.

3 ‘‘(b) The amount of the allowance paid under this

4 section shall be based on the degree of disability suffered

5 by a child as determined in accordance with such schedule

6 for rating disabilities resulting from spina bifida as the

7 Secretary may prescribe. The Secretary shall, in prescrib8 ing the rating schedule for the purposes of this section,

9 establish three levels of disability upon which the amount

10 of the allowance provided by this section shall be based.

11 The allowance shall be $200 per month for the lowest level

12 of disability prescribed, $700 per month for the intermedi13 ate level of disability prescribed, and $1,200 per month

14 for the highest level of disability prescribed.

15 ‘‘(c)(1) Whenever there is an increase in benefit

16 amounts payable under title II of the Social Security Act

17 (42 U.S.C. 401 et seq.) as a result of a determination

18 under section 215(i) of such Act (42 U.S.C. 415(i)), the

19 Secretary shall, effective on the date of such increase in

20 benefit amounts, increase each rate of allowance under

21 this section, as such rates were in effect immediately prior

22 to the date of such increase in benefits payable under title

23 II of the Social Security Act, by the same percentage as

24 the percentage by which such benefit amounts are in25 creased.
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1 ‘‘(2) Whenever there is an increase in the rates of

2 the allowance payable under this section, the Secretary

3 shall publish such rates in the Federal Register.

4 ‘‘(3) Whenever such rates are so increased, the Sec5 retary may round such rates in such manner as the Sec6 retary considers equitable and appropriate for ease of ad7 ministration.

8 ‘‘(d) Notwithstanding any other provision of law, re9 ceipt by a child of an allowance under this section shall

10 not impair, infringe, or otherwise affect the right of such

11 child to receive any other benefit to which the child may

12 otherwise be entitled under any law administered by the

13 Secretary, nor shall such receipt impair, infringe, or other14 wise affect the right of any individual to receive any bene15 fit to which he or she is entitled under any law adminis16 tered by the Secretary that is based on the child’s relation17 ship to such individual.

18 ‘‘(e) Notwithstanding any other provision of law, the

19 allowance paid to a child under this section shall not be

20 considered income or resources in determining eligibility

21 for or the amount of benefits under any Federal or feder22 ally assisted program.

23 ‘‘§ 1806. Effective date of awards

24 ‘‘Effective date for an award for benefits under this

25 chapter shall be fixed in accordance with the facts found,
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1 but shall not be earlier than the date of receipt of applica2 tion therefor.’’.

3 (c) EFFECTIVE DATE.—The amendments made by

4 this section shall become effective on October 1, 1996.

5 (d) CLERICAL AMENDMENT.—The tables of chapters

6 before part I and at the beginning of part II are each

7 amended by inserting after the item referring to chapter

8 17 the following new item:

‘‘18. Benefits for children of Vietnam veterans who are born with spina

bifida ............................................................................. 1801’’.

9 SEC. 3. CLARIFICATION OF ENTITLEMENT FOR BENEFITS

10 FOR DISABILITY RESULTING FROM TREAT11 MENT OR VOCATIONAL SERVICES PROVIDED

12 BY DEPARTMENT OF VETERANS AFFAIRS.

13 (a) Section 1151 is amended—

14 (1) by striking out the first sentence and insert15 ing in lieu thereof the following:

16 ‘‘(a) Compensation under this chapter and depend17 ency and indemnity compensation under chapter 13 of this

18 title shall be awarded for qualifying additional disability

19 to or death of a veteran in the same manner as if such

20 additional disability or death were service-connected. For

21 purposes of this section, additional disability or death is

22 qualifying only if it was not the result of the veteran’s

23 willful misconduct and—
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1 ‘‘(1) it was caused by hospital care, medical or

2 surgical treatment, or examination furnished the vet3 eran under any law administered by the Secretary,

4 either by a Department employee or in a Depart5 ment facility as defined in section 1701(3)(A) of this

6 title, where the additional disability or death proxi7 mately resulted—

8 ‘‘(A) from carelessness, negligence, lack of

9 proper skill, error in judgment, or similar in10 stance of fault on the part of the Department

11 in furnishing the hospital care, medical or sur12 gical treatment, or examination; or

13 ‘‘(B) from an event not reasonably foresee14 able; or

15 ‘‘(2) it was incurred as a proximate result of

16 the provision of training and rehabilitation services

17 by the Secretary (including by a service-provider

18 used by the Secretary for such purpose under sec19 tion 3115 of this title) as part of an approved reha20 bilitation program under chapter 31 of this title.’’;

21 and

22 (2) in the second sentence—

23 (A) by redesignating that sentence as sub24 section (b);
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1 (B) by striking out ‘‘, aggravation,’’ both

2 places it appears; and

3 (C) by striking out ‘‘sentence’’ and sub4 stituting in lieu thereof ‘‘subsection’’.

5 (b) The amendments made by subsection (a) shall

6 govern all administrative and judicial determinations of

7 eligibility for benefits under section 1151 of title 38, Unit8 ed States Code, made with respect to claims filed on or

9 after the date of enactment of this Act, including those

10 based on original applications and applications seeking to

11 reopen, revise, reconsider, or otherwise readjudicate on

12 any basis claims for benefits under section 1151 of that

13 title or predecessor provisions of law.

Æ