[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[H.R. 6391 Introduced in House (IH)]







110th CONGRESS
  2d Session
                                H. R. 6391

  To amend the Public Health Service Act with respect to the National 
                  Vaccine Injury Compensation Program.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             June 26, 2008

Mr. Burton of Indiana (for himself, Mr. Putnam, Mr. Paul, Mr. Smith of 
 New Jersey, Ms. Watson, and Mr. Bartlett of Maryland) 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.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``National Vaccine Injury Compensation 
Program Improvement Act of 2008''.

SEC. 2. BASIS FOR CALCULATING PROJECTED LOST EARNINGS.

    Section 2115(a)(3)(B) of the Public Health Service Act (42 U.S.C. 
300aa-15(a)(3)(B)) is amended by striking all that follows ``for loss 
of earnings'' and inserting the following: ``determined on the basis of 
the annual estimate of the average (mean) gross weekly earnings of 
full-time wage and salary workers age 18 and over in the private 
nonfarm sector (which includes all industries other than agricultural 
production of crops and livestock), as calculated annually by the 
Bureau of Labor Statistics from the quarter sample data of the Current 
Population Survey, or as calculated by such similar method as the 
Secretary may prescribe by regulation, less appropriate taxes and the 
average cost of a health insurance policy, as determined by the 
Secretary.''.

SEC. 3. INCREASE OF AWARD IN THE CASE OF A VACCINE-RELATED DEATH.

    Section 2115(a)(2) of the Public Health Service Act (42 U.S.C. 
300aa-15(a)(2)) is amended by striking ``$250,000'' and inserting 
``$300,000''.

SEC. 4. ALLOWING COMPENSATION FOR FAMILY COUNSELING EXPENSES AND 
              EXPENSES OF ESTABLISHING GUARDIANSHIP.

    (a) Family Counseling Expenses in Post-1988 Cases.--Section 2115(a) 
of the Public Health Service Act (42 U.S.C. 300aa-15(a)) is amended by 
adding at the end the following:
            ``(5) Actual nonreimbursable expenses that have been or 
        will be incurred for family counseling determined to be 
        reasonably necessary and that result from the vaccine-related 
        injury for which the petitioner seeks compensation.''.
    (b) Expenses of Establishing Guardianships in Post-1988 Cases.--
Section 2115(a) of the Public Health Service Act (42 U.S.C. 300aa-
15(a)) is further amended by adding at the end the following paragraph:
            ``(6) Actual and nonreimbursable expenses that have been or 
        will be incurred to establish and maintain a guardianship, 
        conservatorship, or trust for an individual who has suffered a 
        vaccine-related injury, including attorneys' fees and other 
        costs incurred in a proceeding to establish and maintain such a 
        guardianship, conservatorship, or trust.''.
    (c) Conforming Amendment for Cases From 1988 and Earlier.--Section 
2115(b) of the Public Health Service Act (42 U.S.C. 300aa-15(b)) is 
amended--
            (1) in paragraph (2), by striking ``and'' at the end of the 
        paragraph;
            (2) by redesignating paragraph (3) as paragraph (5) and by 
        inserting a closing parenthesis before the period in that 
        paragraph; and
            (3) by inserting after paragraph (2) the following 
        paragraphs:
            ``(3) family counseling expenses (as provided in paragraph 
        (5) of subsection (a)),
            ``(4) expenses of establishing and maintaining 
        guardianships, conservatorships, or trusts (as provided in 
        paragraph (6) of subsection (a)), and''.

SEC. 5. ALLOWING PAYMENT OF INTERIM ATTORNEYS' FEES AND COSTS.

    Section 2115(e) of the Public Health Service Act (42 U.S.C. 300aa-
15(e)) is amended by adding at the end the following:
            ``(4) Upon completion of a conference required by Rule 5 of 
        Appendix J of the Rules of the United States Court of Federal 
        Claims, a special master may make an interim award of 
        attorneys' fees and costs if--
                    ``(A) the case involves a vaccine administered on 
                or after October 1, 1988,
                    ``(B) in tentative findings and conclusions, the 
                special master determines that the petitioner's claim 
                has a reasonable basis,
                    ``(C) the award is limited to reasonable attorneys' 
                fees and other costs (within the meaning of paragraph 
                (1)(B)) incurred in the proceeding, and
                    ``(D) the petitioner provides documentation 
                verifying the expenditure of the amount for which 
                compensation is sought.
            ``(5) An interim award of attorneys' fees and costs by a 
        special master under paragraph (4) shall be promptly paid by 
        the Secretary pursuant to the special master's order and 
        without need of a judgment. The special master's order for 
        interim attorneys' fees and costs is not subject to review 
        under sections 2112(e) and 2112(f) until after the special 
        master has made a determination regarding an award of 
        attorneys' fees and costs under paragraph (1).
            ``(6) The attorneys' fees and costs awarded as compensation 
        on a petition under paragraph (1) shall be for the total 
        attorneys' fees and costs incurred in any proceeding on such 
        petition, less the amount awarded for interim attorneys' fees 
        and costs. In determining fees and costs under paragraph (1), a 
        special master may reconsider and modify the amounts awarded 
        for fees and costs under paragraph (4).''.

SEC. 6. PROCEDURE FOR PAYING ATTORNEYS' FEES.

    Section 2115(e) of the Public Health Service Act (42 U.S.C. 300aa-
15(e)), as amended by section 5, is amended by adding at the end the 
following:
            ``(7) When a special master or court awards attorneys' fees 
        or costs under paragraph (1) or (4), it may order that such 
        fees and costs be payable solely to the petitioner's attorney 
        if--
                    ``(A) the petitioner expressly consents, or
                    ``(B) the special master or court, after affording 
                to the Secretary and all interested persons the 
                opportunity to submit relevant information, determines 
                that--
                            ``(i) the petitioner cannot be located or 
                        refuses to respond to a request by the special 
                        master or court for information, and there is 
                        no practical alternative means to ensure that 
                        the attorney will be reimbursed for such fees 
                        and costs expeditiously, or
                            ``(ii) there are other exceptional 
                        circumstances and good cause for paying such 
                        fees and costs solely to the petitioner's 
                        attorney.''.

SEC. 7. EXTENSION OF STATUTE OF LIMITATIONS.

    (a) General Rule.--Section 2116(a) of the Public Health Service Act 
(42 U.S.C. 300aa-16(a)) is amended--
            (1) in paragraph (2), by striking ``36 months'' and 
        inserting ``6 years''; and
            (2) in paragraph (3)--
                    (A) by striking ``24 months'' and inserting ``6 
                years''; and
                    (B) by striking ``48 months'' and inserting ``6 
                years''.
    (b) Additional Extension.--
            (1) Limitation period.--Notwithstanding section 2116(a) of 
        the Public Health Service Act (42 U.S.C. 300aa-16(a)), in the 
        case of a vaccine set forth in the Vaccine Injury Table that is 
        administered after September 30, 1988, and before the date of 
        the enactment of this Act, if a vaccine-related injury or death 
        occurred as a result of the administration of such vaccine, the 
        end of the limitation period for filing a petition is the later 
        of--
                    (A) the applicable date under section 2116(a) of 
                the Public Health Service Act (42 U.S.C. 300aa-16(a)); 
                or
                    (B) the date that is 2 years after the date of the 
                enactment of this Act.
            (2) Effect of previous dismissal.--Notwithstanding section 
        2111(b)(2) of the Public Health Service Act (42 U.S.C. 300aa-
        11(b)(2)), if a petition is filed within the limitation period 
        applicable under paragraph (1), the petition may not be 
        dismissed on the basis of a previous dismissal for untimely 
        filing.
    (c) Claims Based on Revisions to Table.--Section 2116(b) of the 
Public Health Service Act (42 U.S.C. 300aa-16(b)) is amended by 
striking all that follows ``file a petition for such compensation'' and 
inserting the following: ``if--
            ``(1) the vaccine-related death or injury with respect to 
        which the petition is filed occurred no more than 8 years 
        before the effective date of the revision of the table; and
            ``(2)(A) the petition satisfies the conditions stated in 
        subsection (a); or
            ``(B) the date of occurrence of the first symptom or 
        manifestation of onset of injury occurred more than 4 years 
        before the petition is filed, and the petition is filed no more 
        than 2 years after the effective date of the revision of the 
        table.''.
    (d) Reports.--
            (1) Transmission.--The Secretary of Health and Human 
        Services shall transmit to the Congress two annual reports that 
        shall each include the following:
                    (A) Identification of the number of petitions filed 
                for compensation under the National Vaccine Injury 
                Compensation Program that would have been time-barred 
                absent the limitation period provided by subsection 
                (b).
                    (B) Describe the effects of subsection (b) on the 
                ability of the Secretary to administer the National 
                Vaccine Injury Compensation Program and adjudicate 
                petitions under such Program in a timely manner.
            (2) Dates of submission.--In carrying out this subsection, 
        the Secretary of Health and Human Services shall transmit--
                    (A) the first report not later than 1 year after 
                the date of the enactment of this Act; and
                    (B) the second report not later than 2 years after 
                the date of the enactment of this Act.

SEC. 8. ADVISORY COMMISSION ON CHILDHOOD VACCINES.

    (a) Selection of Individuals Injured by Vaccines as Public 
Members.--Section 2119(a)(1)(B) of the Public Health Service Act (42 
U.S.C. 300aa-19(a)(1)(B)) is amended by striking all that follows the 
comma and inserting the following: ``of whom 1 shall be the legal 
representative of a child who has suffered a vaccine-related injury or 
death, and at least 1 other shall be either the legal representative of 
a child who has suffered a vaccine-related injury or death or an 
individual who has personally suffered a vaccine-related injury.''.
    (b) Mandatory Meeting Schedule Eliminated.--Section 2119(c) of the 
Public Health Service Act (42 U.S.C. 300aa-19(c)) is amended by 
striking ``not less often than four times per year and''.

SEC. 9. CONFORMING AMENDMENT TO TRUST FUND PROVISION.

    Section 9510(c)(1)(A) of the Internal Revenue Code of 1986 is 
amended by striking ``(as in effect'' and all that follows through 
``for vaccine-related injury or death'' and inserting ``(as in effect 
on the effective date of the National Vaccine Injury Compensation 
Program Improvement Act of 2008) for vaccine-related injury or death''.

SEC. 10. INCREASE IN LIMIT ON ADMINISTRATIVE EXPENSES.

    (a) Increase in Limit on Administrative Expenses.--Section 
9510(c)(1)(B) of the Internal Revenue Code of 1986 is amended by 
striking ``(but not in excess of $9,500,000 for any fiscal year)'' and 
inserting ``(but not in excess of $10,000,000 for any fiscal year)''.
    (b) Administrative Expenses of Bureau of Public Debt.--Section 
9510(c)(1) of the Internal Revenue Code of 1986, as amended by section 
9 and subsection (a), is further amended--
            (1) in subparagraph (A)(ii), by striking ``or'' at the end;
            (2) in subparagraph (B), by striking the period at the end 
        and inserting ``, or''; and
            (3) by adding at the end the following:
                    ``(C) the payment of administrative and personnel 
                expenses that the Bureau of the Public Debt incurs for 
                financial services for the Trust Fund.''.

SEC. 11. PUBLIC SERVICE ANNOUNCEMENT CAMPAIGN.

    Section 2110(c) of the Public Health Service Act (42 U.S.C. 300aa-
10(c)) is amended by striking the period at the end and inserting ``, 
including by conducting a public service announcement campaign.''.

SEC. 12. APPLICATION.

    The provisions of and amendments made by sections 2, 3, 4, 5, 6, 7, 
and 9 apply to a petition filed under section 2111 of the Public Health 
Service Act (42 U.S.C. 300aa-11) if the petition is pending on or filed 
after the date of the enactment of this Act.
                                 <all>