Short title

This Act may be cited as the

National Vaccine Injury Compensation Program Improvement Act of 2009

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..

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.

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

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).

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.

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.

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.

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 2009) for vaccine-related injury or death.

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.

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..

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.