Assured compensation for first responders injured by experimental vaccines and drugs

(a)

Repeal

The Public Readiness and Emergency Preparedness Act (division C of the Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006 (Public Law 109–148)) is repealed. (b)

National Biodefense Injury Compensation Program

(1)

Establishment

Section 224 of the Public Health Service Act (42 U.S.C. 233) is amended by adding at the end the following:

(q)

Biodefense Injury Compensation Program

(1)

Establishment

There is established the Biodefense Injury Compensation Program (referred to in this subsection as the Compensation Program) under which compensation may be paid for death or any injury, illness, disability, or condition that is likely (based on best available evidence) to have been caused by the administration of a covered countermeasure to an individual pursuant to a declaration under subsection (p)(2). (2)

Administration and interpretation

The statutory provisions governing the Compensation Program shall be administered and interpreted in consideration of the program goals described in paragraph (4)(B)(iii). (3)

Procedures and standards

The Secretary shall by regulation establish procedures and standards applicable to the Compensation Program that follow the procedures and standards applicable under the National Vaccine Injury Compensation Program established under section 2110, except that the regulations promulgated under this paragraph shall permit a person claiming injury or death related to the administration of any covered countermeasure to file either— (A)a civil action for relief under subsection (p); or (B)a petition for compensation under this subsection. (4)

Injury table

(A)

Inclusion

For purposes of receiving compensation under the Compensation Program with respect to a countermeasure that is the subject of a declaration under subsection (p)(2), the Vaccine Injury Table under section 2114 shall be deemed to include death and the injuries, disabilities, illnesses, and conditions specified by the Secretary under subparagraph (B)(ii). (B)

Injuries, disabilities, illnesses, and conditions

(i)

Institute of medicine

Not later than 30 days after making a declaration described in subsection (p)(2), the Secretary shall enter into a contract with the Institute of Medicine, under which the Institute shall, within 180 days of the date on which the contract is entered into, and periodically thereafter as new information, including information derived from the monitoring of those who were administered the countermeasure, becomes available, provide its expert recommendations on the injuries, disabilities, illnesses, and conditions whose occurrence in one or more individuals are likely (based on best available evidence) to have been caused by the administration of a countermeasure that is the subject of the declaration. (ii)

Specification by secretary

Not later than 30 days after the receipt of the expert recommendations described in clause (i), the Secretary shall, based on such recommendations, specify those injuries, disabilities, illnesses, and conditions deemed to be included in the Vaccine Injury Table under section 2114 for the purposes described in subparagraph (A). (iii)

Program goals

The Institute of Medicine, under the contract under clause (i), shall make such recommendations, the Secretary shall specify, under clause (ii), such injuries, disabilities, illnesses, and conditions, and claims under the Compensation Program under this subsection shall be processed and decided taking into account the following goals of such program: (I)To encourage persons to develop, manufacture, and distribute countermeasures, and to administer covered countermeasures to individuals, by limiting such persons’ liability for damages related to death and such injuries, disabilities, illnesses, and conditions. (II)To encourage individuals to consent to the administration of a covered countermeasure by providing adequate and just compensation for damages related to death and such injuries, disabilities, illnesses, or conditions. (III)To provide individuals seeking compensation for damages related to the administration of a countermeasure with a non-adversarial administrative process for obtaining adequate and just compensation. (iv)

Use of best available evidence

Application of section 2115

With respect to section 2115(a)(2) as applied for purposes of this subsection, an award for the estate of the deceased shall be— (I)if the deceased was under the age of 18, an amount equal to the amount that may be paid to a survivor or survivors as death benefits under the Public Safety Officers’ Benefits Program under subpart 1 of part L of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3796 et seq.); or (II)if the deceased was 18 years of age or older, the greater of— (aa)the amount described in subclause (I); or (bb)the projected loss of employment income, except that the amount under this item may not exceed an amount equal to 400 percent of the amount that applies under item (aa). (vi)

Application of section 2116

Section 2116(b) shall apply to injuries, disabilities, illnesses, and conditions initially specified or revised by the Secretary under clause (ii), except that the exceptions contained in paragraphs (1) and (2) of such section shall not apply. (C)

Rule of construction

Section 13632 (a)(3) of Public Law 103–66 (107 Stat. 646) (making revisions by Secretary to the Vaccine Injury Table effective on the effective date of a corresponding tax) shall not be construed to apply to any revision to the Vaccine Injury Table made under regulations under this paragraph. (5)

Application

The Compensation Program applies to any death or injury, illness, disability, or condition that is likely (based on best available evidence) to have been caused by the administration of a covered countermeasure to an individual pursuant to a declaration under subsection (p)(2). (6)

Special masters

(A)

Hiring

In accordance with section 2112, the judges of the United States Claims Court shall appoint a sufficient number of special masters to address claims for compensation under this subsection. (B)

Budget authority

There are appropriated to carry out this subsection such sums as may be necessary for fiscal year 2006 and each fiscal year thereafter. This subparagraph constitutes budget authority in advance of appropriations and represents the obligation of the Federal Government. (7)

Covered countermeasure

For purposes of this subsection, the term covered countermeasure has the meaning given to such term in subsection (p)(7)(A). (8)

Funding

Compensation made under the Compensation Program shall be made from the same source of funds as payments made under subsection (p).

(2)

Effective Date

This subsection shall take effect as of November 25, 2002 (the date of enactment of the Homeland Security Act of 2002 (Public Law 107–296; 116 Stat. 2135)).