Sec. 2115. COMPENSATION

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## Sec. 2115 COMPENSATION **[**300aa–15**]** ###

(a)General Rule Compensation awarded under the Program to a petitioner under section 2111 for a vaccine-related injury or death associated with the administration of a vaccine after the effective date of this part8 shall include the following: 8Effective October 1, 1988. ####

(1)#####

(A)Actual unreimbursable expenses incurred from the date of the judgment awarding such expenses and reasonable projected unreimbursable expenses which— ######

(i)result from the vaccine-related injury for which the petitioner seeks compensation, ######

(ii)have been or will be incurred by or on behalf of the person who suffered such injury, and ######

(iii)######

(I)have been or will be for diagnosis and medical or other remedial care determined to be reasonably necessary, or ######

(II)have been or will be for rehabilitation, developmental evaluation, special education, vocational training and placement, case management services, counseling, emotional or behavioral therapy, residential and custodial care and service expenses, special equipment, related travel expenses, and facilities determined to be reasonably necessary. #####

(B)Subject to section 2116(a)(2), actual unreimbursable expenses incurred before the date of the judgment awarding such expenses which— ######

(i)resulted from the vaccine-related injury for which the petitioner seeks compensation, ######

(ii)were incurred by or on behalf of the person who suffered such injury, and ######

(iii)were for diagnosis, medical or other remedial care, rehabilitation, developmental evaluation, special education, vocational training and placement, case management services, counseling, emotional or behavioral therapy, residential and custodial care and service expenses, special equipment, related travel expenses, and facilities determined to be reasonably necessary. ####

(2)In the event of a vaccine-related death, an award of $250,000 for the estate of the deceased. ####

(3)#####

(A)In the case of any person who has sustained a vaccine-related injury after attaining the age of 18 and whose earning capacity is or has been impaired by reason of such person's vaccine-related injury for which compensation is to be awarded, compensation for actual and anticipated loss of earnings determined in accordance with generally recognized actuarial principles and projections. #####

(B)In the case of any person who has sustained a vaccine-related injury before attaining the age of 18 and whose earning capacity is or has been impaired by reason of such person's vaccine-related injury for which compensation is to be awarded and whose vaccine-related injury is of sufficient severity to permit reasonable anticipation that such person is likely to suffer impaired earning capacity at age 18 and beyond, compensation after attaining the age of 18 for loss of earnings determined on the basis of the average gross weekly earnings of workers in the private, non-farm sector, less appropriate taxes and the average cost of a health insurance policy, as determined by the Secretary. ####

(4)For actual and projected pain and suffering and emotional distress from the vaccine-related injury, an award not to exceed $250,000. ###

(b)Vaccines Administered Before the Effective Date Compensation awarded under the Program to a petitioner under section 2111 for a vaccine-related injury or death associated with the administration of a vaccine before the effective date of this part9 may include the compensation described in paragraphs (1)(A) and

(2)of subsection

(a)and may also include an amount, not to exceed a combined total of $30,000, for— 9Effective October 1, 1988. ####

(1)lost earnings (as provided in paragraph

(3)of subsection (a)), ####

(2)pain and suffering (as provided in paragraph

(4)of subsection (a)), and ####

(3)reasonable attorneys' fees and costs (as provided in subsection (e)10. 10So in law. Probably should be a closing parenthesis after “subsection (e)”. ###

(c)Residential and Custodial Care and Service The amount of any compensation for residential and custodial care and service expenses under subsection (a)(1) shall be sufficient to enable the compensated person to remain living at home. ###

(d)Types of Compensation Prohibited Compensation awarded under the Program may not include the following: ####

(1)Punitive or exemplary damages. ####

(2)Except with respect to compensation payments under paragraphs

(2)and

(3)of subsection (a), compensation for other than the health, education, or welfare of the person who suffered the vaccine-related injury with respect to which the compensation is paid. ###

(e)Attorneys' Fees ####

(1)In awarding compensation on a petition filed under section 2111 the special master or court shall also award as part of such compensation an amount to cover— #####

(A)reasonable attorneys' fees, and #####

(B)other costs, incurred in any proceeding on such petition. If the judgment of a special master or court on such a petition does not award compensation, the special master or court may award an amount of compensation to cover petitioner's reasonable attorneys' fees and other costs incurred in any proceeding on such petition if the special master or court determines that the petition was brought in good faith and there was a reasonable basis for the claim for which the petition was brought. ####

(2)If the petitioner, before the effective date of this part,11 filed a civil action for damages for any vaccine-related injury or death for which compensation may be awarded under the Program, and petitioned under section 2111(a)(5) to have such action dismissed and to file a petition for compensation under the Program, in awarding compensation on such petition the special master or court may include an amount of compensation limited to the costs and expenses incurred by the petitioner and the attorney of the petitioner before the effective date of this part11 in preparing, filing, and prosecuting such civil action (including the reasonable value of the attorney's time if the civil action was filed under contingent fee arrangements). 11Effective October 1, 1988. ####

(3)No attorney may charge any fee for services in connection with a petition filed under section 2111 which is in addition to any amount awarded as compensation by the special master or court under paragraph (1). ###

(f)Payment of Compensation ####

(1)Except as provided in paragraph (2), no compensation may be paid until an election has been made, or has been deemed to have been made, under section 2121(a) to receive compensation. ####

(2)Compensation described in subsection (a)(1)(A)(iii) shall be paid from the date of the judgment of the United States Claims Court under section 2112 awarding the compensation. Such compensation may not be paid after an election under section 2121(a) to file a civil action for damages for the vaccine-related injury or death for which such compensation was awarded. ####

(3)Payments of compensation under the Program and the costs of carrying out the Program shall be exempt from reduction under any order issued under part C of the Balanced Budget and Emergency Deficit Control Act of 1985. ####

(4)##### (A)12 Except as provided in subparagraph (B), payment of compensation under the Program shall be determined on the basis of the net present value of the elements of the compensation and shall be paid from the Vaccine Injury Compensation Trust Fund established under section 9510 of the Internal Revenue Code of 1986 in a lump sum of which all or a portion may be used as ordered by the special master to purchase an annuity or otherwise be used, with the consent of the petitioner, in a manner determined by the special master to be in the best interests of the petitioner. 12See footnote for section 2112(g). #####

(B)In the case of a payment of compensation under the Program to a petitioner for a vaccine-related injury or death associated with the administration of a vaccine before the effective date of this part13 the compensation shall be determined on the basis of the net present value of the elements of compensation and paid in 4 equal annual installments of which all or a portion of the proceeds14 may be used as ordered by the special master to purchase an annuity or otherwise be used, with the consent of the petitioner, in a manner determined by the special master to be in the best interests of the petitioner. Any reasonable attorneys' fees and costs shall be paid in a lump sum. If the appropriations under subsection

(j)are insufficient to make a payment of an annual installment, the limitation on civil actions prescribed by section 2121(a) shall not apply to a civil action for damages brought by the petitioner entitled to the payment. 13Effective October 1, 1988. 14Section 201(e)(1)(B) of Public Law 102–168 (105 Stat. 1103) provided that this subparagraph is amended by striking out “paid in 4 equal installments of which all or portion of the proceeds” and inserting in lieu thereof “shall be paid from appropriations made available under subsection

(j)in a lump sum of which all or a portion”. The amendment cannot be executed because the term to be struck does not appear in the law. (Compare “equal installments” with “equal annual installments” and “or portion” with “or a portion”.) #####

(C)In purchasing an annuity under subparagraph

(A)or (B), the Secretary may purchase a guarantee for the annuity, may enter into agreements regarding the purchase price for and rate of return of the annuity, and may take such other actions as may be necessary to safeguard the financial interests of the United States regarding the annuity. Any payment received by the Secretary pursuant to the preceding sentence shall be paid to the Vaccine Injury Compensation Trust Fund established under section 9510 of the Internal Revenue Code of 1986, or to the appropriations account from which the funds were derived to purchase the annuity, whichever is appropriate. ###

(g)Program Not Primarily Liable Payment of compensation under the Program shall not be made for any item or service to the extent that payment has been made, or can reasonably be expected to be made, with respect to such item or service

(1)under any State compensation program, under an insurance policy, or under any Federal or State health benefits program (other than under title XIX of the Social Security Act), or

(2)by an entity which provides health services on a prepaid basis. ###

(h)Liability of Health Insurance Carriers, Prepaid Health Plans, and Benefit Providers No policy of health insurance may make payment of benefits under the policy secondary to the payment of compensation under the Program and— ####

(1)no State, and ####

(2)no entity which provides health services on a prepaid basis or provides health benefits, may make the provision of health services or health benefits secondary to the payment of compensation under the Program, except that this subsection shall not apply to the provision of services or benefits under title XIX of the Social Security Act. ###

(i)Source of Compensation ####

(1)Payment of compensation under the Program to a petitioner for a vaccine-related injury or death associated with the administration of a vaccine before the effective date of this part15 shall be made by the Secretary from appropriations under subsection (j). 15Effective October 1, 1988. ####

(2)Payment of compensation under the Program to a petitioner for a vaccine-related injury or death associated with the administration of a vaccine on or after the effective date of this part15 shall be made from the Vaccine Injury Compensation Trust Fund established under section 9510 of the Internal Revenue Code of 1986. ###

(j)Authorization For the payment of compensation under the Program to a petitioner for a vaccine-related injury or death associated with the administration of a vaccine before the effective date of this part15 there are authorized to be appropriated to the Department of Health and Human Services $80,000,000 for fiscal year 1989, $80,000,000 for fiscal year 1990, $80,000,000 for fiscal year 1991, $80,000,000 for fiscal year 1992, $110,000,000 for fiscal year 1993, and $110,000,000 for each succeeding fiscal year in which a payment of compensation is required under subsection (f)(4)(B). Amounts appropriated under this subsection shall remain available until expended.

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Pub. L. 102-168
105 Stat. 1103

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Sec. 2115

COMPENSATION

Pub. L.Pub. L. 102-168

Stat.105 Stat. 1103

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