H. R. 2863—151
Fund shall consist of such amounts designated as emergency appro-
priations under section 402 of H. Con. Res. 95 of the 109th Congress, 
this emergency designation shall remain in effect through October 
1, 2006. 
‘‘(b) PAYMENT OF COMPENSATION.—
‘‘(1) IN
GENERAL.—If the Secretary issues a declaration 
under 319F–3(b), the Secretary shall, after amounts have by 
law been provided for the Fund under subsection (a), provide 
compensation to an eligible individual for a covered injury 
directly caused by the administration or use of a covered 
countermeasure pursuant to such declaration. 
‘‘(2) ELEMENTS OF COMPENSATION.—The compensation that 
shall be provided pursuant to paragraph (1) shall have the 
same elements, and be in the same amount, as is prescribed 
by sections 264, 265, and 266 in the case of certain individuals 
injured as a result of administration of certain countermeasures 
against smallpox, except that section 266(a)(2)(B) shall not 
apply. 
‘‘(3) RULE OF CONSTRUCTION.—Neither reasonable and nec-
essary medical benefits nor lifetime total benefits for lost 
employment income due to permanent and total disability shall 
be limited by section 266. 
‘‘(4) DETERMINATION OF ELIGIBILITY AND COMPENSATION.—
Except as provided in this section, the procedures for deter-
mining, and for reviewing a determination of, whether an indi-
vidual is an eligible individual, whether such individual has 
sustained a covered injury, whether compensation may be avail-
able under this section, and the amount of such compensation 
shall be those stated in section 262 (other than in subsection 
(d)(2) of such section), in regulations issued pursuant to that 
section, and in such additional or alternate regulations as the 
Secretary may promulgate for purposes of this section. In 
making determinations under this section, other than those 
described in paragraph (5)(A) as to the direct causation of 
a covered injury, the Secretary may only make such determina-
tion based on compelling, reliable, valid, medical and scientific 
evidence. 
‘‘(5) COVERED COUNTERMEASURE INJURY TABLE.—
‘‘(A) IN GENERAL.—The Secretary shall by regulation 
establish a table identifying covered injuries that shall 
be presumed to be directly caused by the administration 
or use of a covered countermeasure and the time period 
in which the first symptom or manifestation of onset of 
each such adverse effect must manifest in order for such 
presumption to apply. The Secretary may only identify 
such covered injuries, for purpose of inclusion on the table, 
where the Secretary determines, based on compelling, reli-
able, valid, medical and scientific evidence that administra-
tion or use of the covered countermeasure directly caused 
such covered injury. 
‘‘(B) AMENDMENTS.—The provisions of section 263 
(other than a provision of subsection (a)(2) of such section 
that relates to accidental vaccinia inoculation) shall apply 
to the table established under this section. 
‘‘(C) JUDICIAL REVIEW.—No court of the United States, 
or of any State, shall have subject matter jurisdiction to
H. R. 2863—152
review, whether by mandamus or otherwise, any action 
by the Secretary under this paragraph. 
‘‘(6) MEANINGS OF TERMS.—In applying sections 262, 263, 
264, 265, and 266 for purposes of this section—
‘‘(A) the terms ‘vaccine’ and ‘smallpox vaccine’ shall 
be deemed to mean a covered countermeasure; 
‘‘(B) the terms ‘smallpox vaccine injury table’ and ‘table 
established under section 263’ shall be deemed to refer 
to the table established under paragraph (4); and 
‘‘(C) other terms used in those sections shall have 
the meanings given to such terms by this section. 
‘‘(c) VOLUNTARY PROGRAM.—The Secretary shall ensure that 
a State, local, or Department of Health and Human Services plan 
to administer or use a covered countermeasure is consistent with 
any declaration under 319F–3 and any applicable guidelines of 
the Centers for Disease Control and Prevention and that potential 
participants are educated with respect to contraindications, the 
voluntary nature of the program, and the availability of potential 
benefits and compensation under this part. 
‘‘(d) EXHAUSTION; EXCLUSIVITY; ELECTION.—
‘‘(1) EXHAUSTION.—Subject to paragraph (5), a covered indi-
vidual may not bring a civil action under section 319F–3(d) 
against a covered person (as such term is defined in section 
319F–3(i)(2)) unless such individual has exhausted such rem-
edies as are available under subsection (a), except that if 
amounts have not by law been provided for the Fund under 
subsection (a), or if the Secretary fails to make a final deter-
mination on a request for benefits or compensation filed in 
accordance with the requirements of this section within 240 
days after such request was filed, the individual may seek 
any remedy that may be available under section 319F–3(d). 
‘‘(2) TOLLING OF STATUTE OF LIMITATIONS.—The time limit 
for filing a civil action under section 319F–3(d) for an injury 
or death shall be tolled during the pendency of a claim for 
compensation under subsection (a). 
‘‘(3) RULE OF CONSTRUCTION.—This section shall not be 
construed as superseding or otherwise affecting the application 
of a requirement, under chapter 171 of title 28, United States 
Code, to exhaust administrative remedies. 
‘‘(4) EXCLUSIVITY.—The remedy provided by subsection (a) 
shall be exclusive of any other civil action or proceeding for 
any claim or suit this section encompasses, except for a pro-
ceeding under section 319F–3. 
‘‘(5) ELECTION.—If under subsection (a) the Secretary deter-
mines that a covered individual qualifies for compensation, 
the individual has an election to accept the compensation or 
to bring an action under section 319F–3(d). If such individual 
elects to accept the compensation, the individual may not bring 
such an action. 
‘‘(e) DEFINITIONS.—For purposes of this section, the following 
terms shall have the following meanings: 
‘‘(1) 
COVERED
COUNTERMEASURE.—The 
term 
‘covered 
countermeasure’ has the meaning given such term in section 
319F–3. 
‘‘(2) COVERED INDIVIDUAL.—The term ‘covered individual’, 
with respect to administration or use of a covered counter-
measure pursuant to a declaration, means an individual—
H. R. 2863—153
‘‘(A) who is in a population specified in such declara-
tion, and with respect to whom the administration or use 
of the covered countermeasure satisfies the other specifica-
tions of such declaration; or 
‘‘(B) who uses the covered countermeasure, or to whom 
the covered countermeasure is administered, in a good 
faith belief that the individual is in the category described 
by subparagraph (A). 
‘‘(3) COVERED INJURY.—The term ‘covered injury’ means 
serious physical injury or death. 
‘‘(4) DECLARATION.—The term ‘declaration’ means a declara-
tion under section 319F–3(b). 
‘‘(5) ELIGIBLE INDIVIDUAL.—The term ‘eligible individual’ 
means an individual who is determined, in accordance with 
subsection (b), to be a covered individual who sustains a covered 
injury.’’. 
This Act may be cited as the ‘‘Department of Defense, Emer-
gency Supplemental Appropriations to Address Hurricanes in the 
Gulf of Mexico, and Pandemic Influenza Act, 2006’’.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.