[Congressional Record (Bound Edition), Volume 149 (2003), Part 7]
[House]
[Pages 9691-9695]
[From the U.S. Government Publishing Office, www.gpo.gov]




          SMALLPOX EMERGENCY PERSONNEL PROTECTION ACT OF 2003

  Mr. BURR. Mr. Speaker, I ask unanimous consent that the Committee on 
Energy and Commerce, the Committee on Education and the Workforce, and 
the Committee on the Judiciary be discharged from further consideration 
of the bill (H.R. 1770) to provide benefits and other compensation for 
certain individuals with injuries resulting from administration of 
smallpox countermeasures, and for other purposes, and ask for its 
immediate consideration in the House.
  The Clerk read the title of the bill.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from North Carolina?
  Mrs. CAPPS. Mr. Speaker, reserving the right to object, the emergency 
supplemental appropriations bill which the Congress should pass shortly 
was going to include a smallpox vaccination compensation program. Now 
it is being presented for unanimous consent.
  For many months I have worked closely with the community of first 
responders. Many of them are nurses. I commend the leadership of the 
gentleman from Michigan (Mr. Dingell) and the gentleman from California 
(Mr. Waxman), who have worked with many other Members of this body to 
make this program, this compensation program as good as possible. And 
when we beat a bad bill, which was on the suspension calendar a few 
days ago as we did, then it gives us an opportunity to improve the 
program as it was presented. That is what has been attempted to do. 
Great efforts have been expended and have resulted in marked 
improvements on the woefully inadequate proposal that the 
administration initially put forward.
  I salute again my colleagues who have worked hard from within this 
body to represent the needs of our first responders as they anticipate 
and step forward to become a part of the shield against bioterrorist 
attack.
  The administration, however, was difficult in this area. I am not 
convinced that this end product which is before us today really will 
inspire enough confidence in nurses to make the vaccine program work. 
However, again, I reiterate that there are improvements in the initial 
bill that were put forward.
  But the process back and forth from the White House to the House of 
Representatives was very much in the arena of parsimonious, as the 
progress that was made came in bits and pieces. It felt to the 
community of first responders as if they were being nickeled and dimed. 
And now, with the product that we have, the nursing community, many of 
the people who will be the first responders, many of them tell me that 
the safety net provided in the bill before us today still has large 
holes in it. And it is told to us that the administration has refused 
to go any further than what is in this bill.

                              {time}  1400

  Now, time will tell us if this proposal succeeds, and the proof is 
actually not right here in this body but out in the community, in our 
homeland security efforts, in our communities where firefighters, 
police officers, EMTs, nurses will be asked to roll up their sleeves to 
become heroes on behalf of us all.
  If they feel confidence that the government will stand behind them 
with a good compensation package, they will be more inspired to do 
this. I wish I could be more confident. However, again I remark that 
there has been progress made.
  For example, I myself was recently asked by the Capitol physician to 
be a first responder here in the Congress. For that reason, I have been 
asked to get a smallpox vaccination myself; and I am presently 
consulting with my doctor, as I should do, and with other medical 
experts about the advisability of this.
  But if I do take this vaccine and something goes wrong, I know that 
my family and my dependents will be taken care of because I am covered 
by the Federal Employees Compensation Act.
  Under the bill that we will pass today under unanimous consent, a 
nurse in Santa Barbara, a firefighter in any community across this 
country who takes a vaccine to serve his or her country, may not have 
that same confidence. So this goes beyond the consideration of a 
particular vaccine; it really gets down to how we value our first 
responders and what we are asking them to do on behalf of their 
country.
  Many have said that on 9/11 we crossed through a threshold in this 
country, and life has been different ever since. We now face the 
prospect lurking every single day, the possibility of a terrorist 
attack.
  One of the real threats that we face as a nation to which we desire 
to protect ourselves is the threat of a bioterrorist attack. We saw 
that as the anthrax situation came upon us.
  Who are the first responders who are called upon to answer the call 
in the event of such an attack? These are those who work and live among 
us, ordinary citizens asked now by their government, by their 
President, to take on extraordinary responsibility.
  For many, life goes on as normal. They take the vaccine and nothing 
will happen. But for a few, and a very few, a drastic reaction could 
happen. There is a risk to this act of patriotism that we are asking 
our fellow citizens to take on.
  I want us to be, with every measure within us, standing behind them; 
so that for that handful of people who have life permanently altered 
for themselves and are never able to be the breadwinner for their 
family, as they have been in the past, because they stepped forward on 
behalf of their country, I want them to have the full measure of 
protection such as I have as a Federal employee.
  Reluctantly, I look at the package before us: parsimonious, in my 
regard. I will withdraw my reservation, but I will do so reluctantly, 
because I want this process to be better.
  Mr. Speaker, I will withdraw my reservation of objection with the 
hope that our administration, our leaders, will continue to work to 
give the assurance that screening, that education be available for 
every first responder to avoid the risks, as many of them as we can.
  We can work to make this package even better.
  Mr. BURR. Mr. Speaker, will the gentlewoman yield?
  Mrs. CAPPS. I yield to the gentleman from North Carolina.
  Mr. BURR. Mr. Speaker, I thank the gentlewoman for yielding to me.
  This process has been enhanced by the gentlewoman from California 
(Mrs. Capps) and her expertise and her passion on this particular 
issue.
  There is no doubt that this initiative is one that is needed for 
first responders, regardless of the community that they come from, 
because without identifying specifically where the threat may be, we 
have to make sure that we prepare 100 percent of our first responders 
and health care workers.
  Mr. Speaker, the unanimous consent request before us today for the 
Smallpox Emergency Personnel Protection Act of 2003, a bill critical to 
our public health security and to our national security against the 
potential devastating threat of a terrorist release of the deadly 
smallpox virus, this bill is based on H.R. 1463, which I introduced in 
the Committee on Energy and Commerce, but it contains refinements, 
refinements that have been agreed to on a bipartisan basis with the 
ranking member, the gentleman from Michigan (Mr. Dingell), the 
gentlewoman from California (Mrs. Capps), the gentleman from California 
(Mr. Waxman), and the gentleman from Louisiana (Chairman Tauzin).
  It has also been the subject of bipartisan negotiations with Senator 
Gregg, Senator Kennedy; and yes, the

[[Page 9692]]

administration. I applaud the leadership of all parties in this matter. 
I have stated before, we need to get this done as soon as possible to 
improve homeland security, to make sure that we are covered in case 
something happens.
  In January of this year, HHS Secretary Tommy Thompson called on 
health professionals and emergency responders across the Nation to 
volunteer to receive the smallpox vaccination in order to join the 
smallpox emergency response team. The goal is to ensure that our 
country is better prepared to deal with any outbreak of this deadly 
disease caused by terrorists or rogue regimes, such as Iraq, by having 
in place thousands and potentially millions of first responders who 
could help treat others with smallpox or vaccinate the public without 
the fear of infection.
  This legislation, which has been requested by the administration, as 
the gentlewoman pointed out, is a top personal priority of the 
President and does a number of important things. Let me point those 
out, if I may.
  First, it provides coverage for reasonable and necessary medical 
expenses incurred by individuals who are vaccinated and suffer adverse 
effects, to the extent that such expenses are not picked up by the 
individual's primary health insurer.
  Second, the bill provides a lost-employment-income benefit if an 
individual misses more than 5 days of work due to an adverse effect 
from the vaccine. Under this benefit, an individual can receive up to 
75 percent of his monthly salary and up to $50,000 a year in 
supplemental wages.
  For partial disabilities, the amount of Federal benefits would be 
capped at the maximum amount of the death benefit amount payable under 
the Public Safety Officers Benefits Program, or PSOB, an existing 
Federal program that currently provides $262,000 in a lump sum to 
public safety officers who are killed or totally disabled in the line 
of work.
  Third, the act provides a PSOB-equivalent death benefit for health 
care workers and first responders in the unlikely and regrettable cases 
where there may be a fatal adverse reaction to the smallpox 
inoculation.
  Because of the rare, but potentially severe, adverse side effects 
uniquely associated with this particular vaccine, a compensation 
program such as this one is essential if we are to properly incentivize 
these volunteers, these public safety heroes, to roll up their sleeves 
and to take the shot at potential risk to themselves and to their 
spouses and dependents whom their death or injury could leave behind.
  While some might say our compensation program is too generous and 
others might say that it is not enough in some cases, I think we have 
struck a good balance, given the uniqueness and the urgency of the 
national security situation we face today with respect to the potential 
threat of smallpox.
  Finally, this legislation provides sensible, noncontroversial 
technical amendments to last year's homeland security bill to better 
provide liability protection to hospitals, doctors, nurses, and public 
health officials at the State and local levels whom we are asking to 
participate in this important national initiative.
  Again, without this protection, the program is unlikely to be 
successful. That hurts all of us. This bill has been intensely 
negotiated, and it is a bipartisan consensus product that is needed for 
our national security now.
  Mr. Speaker, let me say, seldom do we produce a perfect product, but 
we try our best. Because I believe we have tried our best in this case, 
I would urge unanimous consent for passage of this measure to be 
accepted.
  Mrs. CAPPS. Continuing to reserve my right to object, Mr. Speaker, I 
agree with the gentleman from North Carolina that progress has been 
made since the original presentation that the administration put forth 
before the House of Representatives.
  I would stand before the Members as a Member of Congress, but also as 
a first responder covered with the full protection of the Federal 
Government; and look forward to an opportunity, now it will be in the 
future, perhaps, when I can go among other first responders in our 
Nation with the full assurance that their protection and their 
compensation is as great as my own.
  This compensation package is only as good as the confidence that it 
inspires within our first responder community, these folks we ask to be 
heroes. So I make the request to my colleague, the gentleman from North 
Carolina (Mr. Burr), and to my colleagues in Congress that we must 
monitor this program as this piece of legislation is unanimously passed 
here in this body.
  We should keep track of it. If it does not work in its present form, 
we should make the commitment that we will revisit this.
  Again, this is a program that is only as good as it will be resulting 
in the goals that the administration has set before the Nation in terms 
of its bioterrorist protection.
  Mr. DINGELL. Mr. Speaker, I support this smallpox vaccine 
compensation program. The nurses and first responders recognize that 
this framework is, unfortunately, the best we can get from this 
Administration. And even though this compensation program may not be 
sufficient to build the necessary confidence in those we are asking to 
receive this risky vaccine, it is better than nothing. We need to begin 
protecting those we are asking to protect us.
  Of course, it remains in the Administration's hands to determine 
whether this program will ultimately work. Will the Administration 
devote the necessary resources to do a proper job of education and 
screening? Will the Administration work with those directly affected as 
it implements the program? Will the Administration take necessary steps 
to assure any inured party that the money to protect their families 
will be there?
  Given that Democrats have been seeking a viable and effective 
screening and compensation program for months, and given that any 
concessions from the Administration have been grudging at best, I am 
not optimistic. But because of the importance of the program, I will 
continue to fight on behalf of the nurses and other first responders to 
see that the Administration does not let it fail.
  Mrs. CAPPS. Mr. Speaker, I withdraw my reservation of objection.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from North Carolina?
  There was no objection.
  The Clerk read the bill, as follows:

                               H.R. 1770

       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 ``Smallpox Emergency Personnel 
     Protection Act of 2003''.

      SEC. 2. SMALLPOX EMERGENCY PERSONNEL PROTECTION.

       Title II of the Public Health Service Act (42 U.S.C. 202 et 
     seq.) is amended by adding at the end the following part:

           ``Part C--Smallpox Emergency Personnel Protection

     ``SEC. 261. GENERAL PROVISIONS.

       ``(a) Definitions.--For purposes of this part:
       ``(1) Covered countermeasure.--The term `covered 
     countermeasure' means a covered countermeasure as specified 
     in a Declaration made pursuant to section 224(p).
       ``(2) Covered individual.--The term `covered individual' 
     means an individual--
       ``(A) who is a health care worker, law enforcement officer, 
     firefighter, security personnel, emergency medical personnel, 
     other public safety personnel, or support personnel for such 
     occupational specialities;
       ``(B) who is or will be functioning in a role identified in 
     a State, local, or Department of Health and Human Services 
     smallpox emergency response plan (as defined in paragraph 
     (7)) approved by the Secretary;
       ``(C) who has volunteered and been selected to be a member 
     of a smallpox emergency response plan described in 
     subparagraph (B) prior to the time at which the Secretary 
     publicly announces that an active case of smallpox has been 
     identified either within or outside of the United States; and
       ``(D) to whom a smallpox vaccine is administered pursuant 
     to such approved plan during the effective period of the 
     Declaration (including the portion of such period before the 
     enactment of this part).
       ``(3) Covered injury.--The term `covered injury' means an 
     injury, disability, illness, condition, or death (other than 
     a minor injury such as minor scarring or minor local 
     reaction) determined, pursuant to the procedures established 
     under section 262, to have been sustained by an individual as 
     the direct result of--
       ``(A) administration to the individual of a covered 
     countermeasure during the effective period of the 
     Declaration; or
       ``(B) accidental vaccinia inoculation of the individual in 
     circumstances in which--

[[Page 9693]]

       ``(i) the vaccinia is contracted during the effective 
     period of the Declaration or within 30 days after the end of 
     such period;
       ``(ii) smallpox vaccine has not been administered to the 
     individual; and
       ``(iii) the individual has been in contact with an 
     individual who is (or who was accidentally inoculated by) a 
     covered individual.
       ``(4) Declaration.--The term `Declaration' means the 
     Declaration Regarding Administration of Smallpox 
     Countermeasures issued by the Secretary on January 24, 2003, 
     and published in the Federal Register on January 28, 2003.
       ``(5) Effective period of the declaration.--The term 
     `effective period of the Declaration' means the effective 
     period specified in the Declaration, unless extended by the 
     Secretary.
       ``(6) Eligible individual.--The term `eligible individual' 
     means an individual who is (as determined in accordance with 
     section 262)--
       ``(A) a covered individual who sustains a covered injury in 
     the manner described in paragraph (3)(A); or
       ``(B) an individual who sustains a covered injury in the 
     manner described in paragraph (3)(B).
       ``(7) Smallpox emergency response plan.--The term `smallpox 
     emergency response plan' or `plan' means a response plan 
     detailing actions to be taken in preparation for a possible 
     smallpox-related emergency during the period prior to the 
     identification of an active case of smallpox either within or 
     outside the United States.
       ``(b) Voluntary Program.--The Secretary shall ensure that a 
     State, local, or Department of Health and Human Services plan 
     to vaccinate individuals that is approved by the Secretary 
     establishes procedures to ensure, consistent with the 
     Declaration and any applicable guidelines of the Centers for 
     Disease Control and Prevention, that--
       ``(1) 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;
       ``(2) there is voluntary screening provided to potential 
     participants that can identify health conditions relevant to 
     contraindications; and
       ``(3) there is appropriate post-inoculation medical 
     surveillance that includes an evaluation of adverse health 
     effects that may reasonably appear to be due to such vaccine 
     and prompt referral of, or the provision of appropriate 
     information to, any individual requiring health care as a 
     result of such adverse health event.

     ``SEC. 262. DETERMINATION OF ELIGIBILITY AND BENEFITS.

       ``(a) In General.--The Secretary shall establish procedures 
     for determining, as applicable with respect to an 
     individual--
       ``(1) whether the individual is an eligible individual;
       ``(2) whether an eligible individual has sustained a 
     covered injury or injuries for which medical benefits or 
     compensation may be available under sections 264 and 265, and 
     the amount of such benefits or compensation; and
       ``(3) whether the covered injury or injuries of an eligible 
     individual caused the individual's death for purposes of 
     benefits under section 266.
       ``(b) Covered Individuals.--The Secretary may accept a 
     certification, by a Federal, State, or local government 
     entity or private health care entity participating in the 
     administration of covered countermeasures under the 
     Declaration, that an individual is a covered individual.
       ``(c) Criteria for Reimbursement.--
       ``(1) Injuries specified in injury table.--In any case 
     where an injury or other adverse effect specified in the 
     injury table established under section 263 as a known effect 
     of a vaccine manifests in an individual within the time 
     period specified in such table, such injury or other effect 
     shall be presumed to have resulted from administration of 
     such vaccine.
       ``(2) Other determinations.--In making determinations other 
     than those described in paragraph (1) as to the causation or 
     severity of an injury, the Secretary shall employ a 
     preponderance of the evidence standard and take into 
     consideration all relevant medical and scientific evidence 
     presented for consideration, and may obtain and consider the 
     views of qualified medical experts.
       ``(d) Deadline for Filing Request.--The Secretary shall not 
     consider any request for a benefit under this part with 
     respect to an individual, unless--
       ``(1) in the case of a request based on the administration 
     of the vaccine to the individual, the individual files with 
     the Secretary an initial request for benefits or compensation 
     under this part not later than one year after the date of 
     administration of the vaccine; or
       ``(2) in the case of a request based on accidental vaccinia 
     inoculation, the individual files with the Secretary an 
     initial request for benefits or compensation under this part 
     not later than two years after the date of the first symptom 
     or manifestation of onset of the adverse effect.
       ``(e) Structured Settlements at Secretary's Option.--In any 
     case in which there is a reasonable likelihood that 
     compensation or payment under section 264, 265, or 266(b) 
     will be required for a period in excess of one year from the 
     date an individual is determined eligible for such 
     compensation or payment, the Secretary shall have the 
     discretion to make a lump-sum payment, purchase an annuity or 
     medical insurance policy, or execute an appropriate 
     structured settlement agreement, provided that such payment, 
     annuity, policy, or agreement is actuarially determined to 
     have a value equal to the present value of the projected 
     total amount of benefits or compensation that the individual 
     is eligible to receive under such section or sections.
       ``(f) Review of Determination.--
       ``(1) Secretary's review authority.--The Secretary may 
     review a determination under this section at any time on the 
     Secretary's own motion or on application, and may affirm, 
     vacate, or modify such determination in any manner the 
     Secretary deems appropriate. The Secretary shall develop a 
     process by which an individual may file a request for 
     reconsideration of any determination made by the Secretary 
     under this section.
       ``(2) Judicial and administrative review.--No court of the 
     United States, or of any State, District, territory or 
     possession thereof, shall have subject matter jurisdiction to 
     review, whether by mandamus or otherwise, any action by the 
     Secretary under this section. No officer or employee of the 
     United States shall review any action by the Secretary under 
     this section (unless the President specifically directs 
     otherwise).

     ``SEC. 263. SMALLPOX VACCINE INJURY TABLE.

       ``(a) Smallpox Vaccine Injury Table.--
       ``(1) Establishment required.--The Secretary shall 
     establish by interim final regulation a table identifying 
     adverse effects (including injuries, disabilities, illnesses, 
     conditions, and deaths) that shall be presumed to result from 
     the administration of (or exposure to) a smallpox vaccine, 
     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.
       ``(2) Amendments.--The Secretary may by regulation amend 
     the table established under paragraph (1). An amendment to 
     the table takes effect on the date of the promulgation of the 
     final rule that makes the amendment, and applies to all 
     requests for benefits or compensation under this part that 
     are filed on or after such date or are pending as of such 
     date. In addition, the amendment applies retroactively to an 
     individual who was not with respect to the injury involved an 
     eligible individual under the table as in effect before the 
     amendment but who with respect to such injury is an eligible 
     individual under the table as amended. With respect to a 
     request for benefits or compensation under this part by an 
     individual who becomes an eligible individual as described in 
     the preceding sentence, the Secretary may not provide such 
     benefits or compensation unless the request (or amendment to 
     a request, as applicable) is filed before the expiration of 
     one year after the effective date of the amendment to the 
     table in the case of an individual to whom the vaccine was 
     administered and before the expiration of two years after 
     such effective date in the case of a request based on 
     accidental vaccinia inoculation.

     ``SEC. 264. MEDICAL BENEFITS.

       ``(a) In General.--Subject to the succeeding provisions of 
     this section, the Secretary shall make payment or 
     reimbursement for medical items and services as reasonable 
     and necessary to treat a covered injury of an eligible 
     individual, including the services, appliances, and supplies 
     prescribed or recommended by a qualified physician, which the 
     Secretary considers likely to cure, give relief, reduce the 
     degree or the period of disability, or aid in lessening the 
     amount of monthly compensation.
       ``(b) Benefits Secondary to Other Coverage.--Payment or 
     reimbursement for services or benefits under subsection (a) 
     shall be secondary to any obligation of the United States or 
     any third party (including any State or local governmental 
     entity, private insurance carrier, or employer) under any 
     other provision of law or contractual agreement, to pay for 
     or provide such services or benefits.

     ``SEC. 265. COMPENSATION FOR LOST EMPLOYMENT INCOME.

       ``(a) In General.--Subject to the succeeding provisions of 
     this section, the Secretary shall provide compensation to an 
     eligible individual for loss of employment income (based on 
     such income at the time of injury) incurred as a result of a 
     covered injury, at the rate specified in subsection (b).
       ``(b) Amount of Compensation.--
       ``(1) In general.--Compensation under subsection (a) shall 
     be at the rate of 66 2/3 percent of the relevant pay period 
     (weekly, monthly, or otherwise), except as provided in 
     paragraph (2).
       ``(2) Augmented compensation for dependents.--If an 
     eligible individual has one or more dependents, the basic 
     compensation for loss of employment income as described in 
     paragraph (1) shall be augmented at the rate of 8 1/3 
     percent.
       ``(3) Consideration of other programs.--
       ``(A) In general.--The Secretary may consider the 
     provisions of sections 8114, 8115, and 8146a of title 5, 
     United States Code, and any

[[Page 9694]]

     implementing regulations, in determining the amount of 
     payment under subsection (a) and the circumstances under 
     which such payments are reasonable and necessary.
       ``(B) Minors.--With respect to an eligible individual who 
     is a minor, the Secretary may consider the provisions of 
     section 8113 of title 5, United States Code, and any 
     implementing regulations, in determining the amount of 
     payment under subsection (a) and the circumstances under 
     which such payments are reasonable and necessary.
       ``(4) Treatment of self-employment income.--For purposes of 
     this section, the term `employment income' includes income 
     from self-employment.
       ``(c) Limitations.--
       ``(1) Benefits secondary to other coverage.--
       ``(A) In general.--Any compensation under subsection (a) 
     shall be secondary to the obligation of the United States or 
     any third party (including any State or local governmental 
     entity, private insurance carrier, or employer), under any 
     other law or contractual agreement, to pay compensation for 
     loss of employment income or to provide disability or 
     retirement benefits.
       ``(B) Relation to other obligations.--Compensation under 
     subsection (a) shall not be made to an eligible individual to 
     the extent that the total of amounts paid to the individual 
     under such subsection and under the other obligations 
     referred to in subparagraph (A) is an amount that exceeds the 
     rate specified in subsection (b)(1). If under any such other 
     obligation a lump-sum payment is made, such payment shall, 
     for purposes of this paragraph, be deemed to be received over 
     multiple years rather than received in a single year. The 
     Secretary may, in the discretion of the Secretary, determine 
     how to apportion such payment over multiple years.
       ``(2) No benefits in case of death.--No payment shall be 
     made under subsection (a) in compensation for loss of 
     employment income subsequent to the receipt, by the survivor 
     or survivors of an eligible individual, of benefits under 
     section 266 for death.
       ``(3) Limit on total benefits.--
       ``(A) In general.--Except as provided in subparagraph (B)--
       ``(i) total compensation paid to an individual under 
     subsection (a) shall not exceed $50,000 for any year; and
       ``(ii) the lifetime total of such compensation for the 
     individual may not exceed an amount equal to the amount 
     authorized to be paid under section 266.
       ``(B) Permanent and total disability.--The limitation under 
     subparagraph (A)(ii) does not apply in the case of an 
     eligible individual who is determined to have a covered 
     injury or injuries meeting the definition of disability in 
     section 216(i) of the Social Security Act (42 U.S.C. 416(i)).
       ``(4) Waiting period.--
       ``(A) In general.--Except as provided in subparagraph (B), 
     an eligible individual shall not be provided compensation 
     under this section for the first 5 work days of loss of 
     employment income.
       ``(B) Exception.--Subparagraph (A) does not apply if the 
     period of loss of employment income of an eligible individual 
     is 10 or more work days.
       ``(5) Termination of benefits.--No payment shall be made 
     under subsection (a) in compensation for loss of employment 
     income once the eligible individual involves reaches the age 
     of 65.
       ``(d) Benefit in Addition to Medical Benefits.--A benefit 
     under subsection (a) shall be in addition to any amounts 
     received by an eligible individual under section 264.

     ``SEC. 266. PAYMENT FOR DEATH.

       ``(a) Death Benefit.--
       ``(1) In general.--The Secretary shall pay, in the case of 
     an eligible individual whose death is determined to have 
     resulted from a covered injury or injuries, a death benefit 
     in the amount determined under paragraph (2) to the survivor 
     or survivors in the same manner as death benefits are paid 
     pursuant to 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.) 
     with respect to an eligible deceased (except that in the case 
     of an eligible individual who is a minor with no living 
     parent, the legal guardian shall be considered the survivor 
     in the place of the parent).
       ``(2) Benefit amount.--
       ``(A) In general.--The amount of the death benefit under 
     paragraph (1) in a fiscal year shall equal the amount of the 
     comparable benefit calculated 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.) in such fiscal year, without regard 
     to any reduction attributable to a limitation on 
     appropriations, but subject to subparagraph (B).
       ``(B) Reduction for payments for lost employment income.--
     The amount of the benefit as determined under subparagraph 
     (A) shall be reduced by the total amount of any benefits paid 
     under section 265 with respect to lost employment income.
       ``(3) Limitations.--
       ``(A) In general.--No benefit is payable under paragraph 
     (1) with respect to the death of an eligible individual if--
       ``(i) a disability benefit is paid with respect to such 
     individual 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) a death benefit is paid or payable with respect to 
     such individual 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.).
       ``(B) Exception in the case of a limitation on 
     appropriations for disability benefits under psob.--In the 
     event that disability benefits available to an eligible 
     individual 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.) 
     are reduced because of a limitation on appropriations, and 
     such reduction would affect the amount that would be payable 
     under subparagraph (A) without regard to this subparagraph, 
     benefits shall be available under paragraph (1) to the extent 
     necessary to ensure that the survivor or survivors of such 
     individual receives a total amount equal to the amount 
     described in paragraph (2).
       ``(b) Election in Case of Dependents.--
       ``(1) In general.--In the case of an eligible individual 
     whose death is determined to have resulted from a covered 
     injury or injuries, if the individual had one or more 
     dependents under the age of 18, the legal guardian of the 
     dependents may, in lieu of the death benefit under subsection 
     (a), elect to receive on behalf of the aggregate of such 
     dependents payments in accordance with this subsection. An 
     election under the preceding sentence is effective in lieu of 
     a request under subsection (a) by an individual who is not 
     the legal guardian of such dependents.
       ``(2) Amount of payments.--Payments under paragraph (1) 
     with respect to an eligible individual described in such 
     paragraph shall be made as if such individual were an 
     eligible individual to whom compensation would be paid under 
     subsection (a) of section 265, with the rate augmented in 
     accordance with subsection (b)(2) of such section and with 
     such individual considered to be an eligible individual 
     described in subsection (c)(3)(B) of such section.
       ``(3) Limitations.--
       ``(A) Age of dependents.--No payments may be made under 
     paragraph (1) once the youngest of the dependents involved 
     reaches the age of 18.
       ``(B) Benefits secondary to other coverage.--
       ``(i) In general.--Any payment under paragraph (1) shall be 
     secondary to the obligation of the United States or any third 
     party (including any State or local governmental entity, 
     private insurance carrier, or employer), under any other law 
     or contractual agreement, to pay compensation for loss of 
     employment income or to provide disability benefits, 
     retirement benefits, life insurance benefits on behalf of 
     dependents under the age of 18, or death benefits.
       ``(ii) Relation to other obligations.--Payments under 
     paragraph (1) shall not be made to with respect to an 
     eligible individual to the extent that the total of amounts 
     paid with respect to the individual under such paragraph and 
     under the other obligations referred to in clause (i) is an 
     amount that exceeds the rate of payment that applies under 
     paragraph (2). If under any such other obligation a lump-sum 
     payment is made, such payment shall, for purposes of this 
     subparagraph, be deemed to be received over multiple years 
     rather than received in a single year. The Secretary may, in 
     the discretion of the Secretary, determine how to apportion 
     such payment over multiple years.
       ``(c) Benefit in Addition to Medical Benefits.--A benefit 
     under subsection (a) or (b) shall be in addition to any 
     amounts received by an eligible individual under section 264.

     ``SEC. 267. ADMINISTRATION.

       ``(a) Administration by Agreement With Other Agency or 
     Agencies.--The Secretary may administer any or all of the 
     provisions of this part through Memorandum of Agreement with 
     the head of any appropriate Federal agency.
       ``(b) Regulations.--The head of the agency administering 
     this part or provisions thereof (including any agency head 
     administering such Act or provisions through a Memorandum of 
     Agreement under subsection (a)) may promulgate such 
     implementing regulations as may be found necessary and 
     appropriate. Initial implementing regulations may be interim 
     final regulations.

     ``SEC. 268. AUTHORIZATION OF APPROPRIATIONS.

       ``For the purpose of carrying out this part, there are 
     authorized to be appropriated such sums as may be necessary 
     for each of the fiscal years 2003 through 2007, to remain 
     available until expended, including administrative costs and 
     costs of provision and payment of benefits. The Secretary's 
     payment of any benefit under section 264, 265, or 266 shall 
     be subject to the availability of appropriations under this 
     section.

     ``SEC. 269. RELATIONSHIP TO OTHER LAWS.

       ``Except as explicitly provided herein, nothing in this 
     part shall be construed to override or limit any rights an 
     individual may have to seek compensation, benefits, or 
     redress under any other provision of Federal or State law.''.

[[Page 9695]]



     SEC. 3. AMENDMENTS TO PROVISION REGARDING TORT LIABILITY FOR 
                   ADMINISTRATION OF SMALLPOX COUNTERMEASURES.

       (a) Amendment to Accidental Vaccinia Inoculation 
     Provision.--Section 224(p)(2)(C)(ii)(II) of such Act (42 
     U.S.C. 233(p)(2)(C)(ii)(II)) is amended by striking ``resides 
     or has resided with'' and inserting ``has resided with, or 
     has had contact with,''.
       (b) Deeming Acts and Omissions to be Within Scope of 
     Employment.--Section 224(p)(2) of such Act (42 U.S.C. 
     233(p)(2)) is amended by adding at the end the following new 
     subparagraph:
       ``(D) Acts and omissions deemed to be within scope of 
     employment.--
       ``(i) In general.--In the case of a claim arising out of 
     alleged transmission of vaccinia from an individual described 
     in clause (ii), acts or omissions by such individual shall be 
     deemed to have been taken within the scope of such 
     individual's office or employment for purposes of--

       ``(I) subsection (a); and
       ``(II) section 1346(b) and chapter 171 of title 28, United 
     States Code.

       ``(ii) Individuals to whom deeming applies.--An individual 
     is described by this clause if--

       ``(I) vaccinia vaccine was administered to such individual 
     as provided by subparagraph (B); and
       ``(II) such individual was within a category of individuals 
     covered by a declaration under subparagraph (A)(i).''.

       (c) Exhaustion; Exclusivity; Offset.--Section 224(p)(3) of 
     such Act (42 U.S.C. 233(p)(3)) is amended to read as follows:
       ``(3) Exhaustion; exclusivity; offset.--
       ``(A) Exhaustion.--
       ``(i) In general.--A person may not bring a claim under 
     this subsection unless such person has exhausted such 
     remedies as are available under part C of this title, except 
     that if the Secretary fails to make a final determination on 
     a request for benefits or compensation filed in accordance 
     with the requirements of such part within 240 days after such 
     request was filed, the individual may seek any remedy that 
     may be available under this section.
       ``(ii) Tolling of statute of limitations.--The time limit 
     for filing a claim under this subsection, or for filing an 
     action based on such claim, shall be tolled during the 
     pendency of a request for benefits or compensation under part 
     C of this title.
       ``(iii) Construction.--This subsection 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.
       ``(B) Exclusivity.--The remedy provided by subsection (a) 
     shall be exclusive of any other civil action or proceeding 
     for any claim or suit this subsection encompasses, except for 
     a proceeding under part C of this title.
       ``(C) Offset.--The value of all compensation and benefits 
     provided under part C of this title for an incident or series 
     of incidents shall be offset against the amount of an award, 
     compromise, or settlement of money damages in a claim or suit 
     under this subsection based on the same incident or series of 
     incidents.''.
       (d) Requirement To Cooperate With United States.--Section 
     224(p)(5) of such Act (42 U.S.C. 233(p)(5)) is amended in the 
     caption by striking ``Defendant'' and inserting ``Covered 
     person''.
       (e) Amendment to Definition of Covered Countermeasure.--
     Section 224(p)(7)(A)(i)(II) of such Act (42 U.S.C. 
     233(p)(7)(A)(i)(II)) is amended to read as follows:

       ``(II) used to control or treat the adverse effects of 
     vaccinia inoculation or of administration of another covered 
     countermeasure; and''.

       (f) Amendment to Definition of Covered Person.--Section 
     224(p)(7)(B) of such Act (42 U.S.C. 233(p)(7)(B)) is 
     amended--
       (1) by striking ``includes any person'' and inserting 
     ``means a person'';
       (2) in clause (ii)--
       (A) by striking ``auspices'' and inserting ``auspices--'';
       (B) by redesignating ``such countermeasure'' and all that 
     follows as clause (I) and indenting accordingly; and
       (C) by adding at the end the following:

       ``(II) a determination was made as to whether, or under 
     what circumstances, an individual should receive a covered 
     countermeasure;
       ``(III) the immediate site of administration on the body of 
     a covered countermeasure was monitored, managed, or cared 
     for; or
       ``(IV) an evaluation was made of whether the administration 
     of a countermeasure was effective;'';

       (3) in clause (iii) by striking ``or'';
       (4) by striking clause (iv) and inserting the following:
       ``(iv) a State, a political subdivision of a State, or an 
     agency or official of a State or of such a political 
     subdivision, if such State, subdivision, agency, or official 
     has established requirements, provided policy guidance, 
     supplied technical or scientific advice or assistance, or 
     otherwise supervised or administered a program with respect 
     to administration of such countermeasures;
       ``(v) in the case of a claim arising out of alleged 
     transmission of vaccinia from an individual--

       ``(I) the individual who allegedly transmitted the 
     vaccinia, if vaccinia vaccine was administered to such 
     individual as provided by paragraph (2)(B) and such 
     individual was within a category of individuals covered by a 
     declaration under paragraph (2)(A)(i); or
       ``(II) an entity that employs an individual described by 
     clause (I) or where such individual has privileges or is 
     otherwise authorized to provide health care;

       ``(vi) an official, agent, or employee of a person 
     described in clause (i), (ii), (iii), or (iv);
       ``(vii) a contractor of, or a volunteer working for, a 
     person described in clause (i), (ii), or (iv), if the 
     contractor or volunteer performs a function for which a 
     person described in clause (i), (ii), or (iv) is a covered 
     person; or
       ``(viii) an individual who has privileges or is otherwise 
     authorized to provide health care under the auspices of an 
     entity described in clause (ii) or (v)(II).''.
       (g) Amendment to Definition of Qualified Person.--Section 
     224(p)(7)(C) of such Act (42 U.S.C. 233(p)(7)(C)) is 
     amended--
       (1) by designating ``is authorized to'' and all that 
     follows as clause (i) and indenting accordingly;
       (2) by striking ``individual who'' and inserting 
     ``individual who--''; and
       (3) by striking the period and inserting ``; or
       ``(ii) is otherwise authorized by the Secretary to 
     administer such countermeasure.''.
       (h) Definition of ``Arising out of Administration of a 
     Covered Countermeasure''.--Section 224(p)(7) of such Act (42 
     U.S.C. 233(p)(7)) is amended by adding at the end the 
     following new subparagraph:
       ``(D) Arising out of administration of a covered 
     countermeasure.--The term `arising out of administration of a 
     covered countermeasure', when used with respect to a claim or 
     liability, includes a claim or liability arising out of--
       ``(i) determining whether, or under what conditions, an 
     individual should receive a covered countermeasure;
       ``(ii) obtaining informed consent of an individual to the 
     administration of a covered countermeasure;
       ``(iii) monitoring, management, or care of an immediate 
     site of administration on the body of a covered 
     countermeasure, or evaluation of whether the administration 
     of the countermeasure has been effective; or
       ``(iv) transmission of vaccinia virus by an individual to 
     whom vaccinia vaccine was administered as provided by 
     paragraph (2)(B).''.
       (i) Technical Correction.--Section 224(p)(2)(A)(ii) of such 
     Act (42 U.S.C. 233(p)(2)(A)(ii)) is amended by striking 
     ``paragraph (8)(A)'' and inserting ``paragraph (7)(A)''.
       (j) Effective Date.--This section shall take effect as of 
     November 25, 2002.

  The bill was ordered to be engrossed and read a third time, was read 
the third time, and passed, and a motion to reconsider was laid on the 
table.

                          ____________________