42 U.S.C. § 300aa–15 — Compensation

(a) General rule For a vaccine-related injury or death from a vaccine given after October 1, 1988, compensation awarded under the Program must include: Unreimbursed expenses, in two parts. First, actual expenses starting from the date of the judgment awarding them, plus reasonably projected future expenses — as long as they come from the injury, have been or will be paid by or for the injured person, and are for necessary diagnosis and medical or other remedial care, or for things like rehabilitation, developmental evaluation, special education, vocational training and placement, case management, counseling, emotional or behavioral therapy, residential and custodial care, special equipment, related travel, and needed facilities. Second — subject to a limit in section 300aa–16(a)(2) — actual unreimbursed expenses from before the judgment, for those same kinds of care, as long as they resulted from the injury and were paid by or for the injured person. If the vaccine caused a death, a flat $250,000 award for the deceased person's estate. Lost earnings: for someone injured after turning 18 whose ability to earn money is or was hurt by the injury, compensation for actual and expected lost earnings, figured using standard actuarial methods; for someone injured before turning 18 whose injury is serious enough to reasonably expect reduced earning power at 18 and beyond, compensation — starting once they turn 18 — based on the average weekly earnings of private-sector, non-farm workers, minus appropriate taxes and the average cost of a health insurance policy, as the Secretary determines. An award of up to $250,000 for actual and expected pain, suffering, and emotional distress caused by the injury. (b) Vaccines administered before effective date For a vaccine-related injury or death from a vaccine given before October 1, 1988, compensation may include the unreimbursed-expense and $250,000 death benefits described above, plus an amount — not to exceed a combined total of $30,000 — covering lost earnings, pain and suffering, and reasonable attorneys' fees and costs. (c) Residential and custodial care and service Compensation for residential and custodial care and service expenses must be enough to let the injured person keep living at home. (d) Types of compensation prohibited Compensation may never include punitive or exemplary damages. And — except for the death benefit and the lost-earnings compensation — compensation may not cover anything other than the health, education, or welfare of the person who suffered the injury. (e) Attorneys' fees When compensation is awarded on a petition, the special master or court must also award reasonable attorneys' fees and other proceeding costs. Even when the Court of Federal Claims' judgment does not award compensation, the special master or court may still award reasonable attorneys' fees and costs if it finds the petition was filed in good faith with a reasonable basis for the claim. If a petitioner had a pre-October-1988 lawsuit dismissed in order to file a Program petition instead, the compensation may include the costs and expenses of that earlier lawsuit, including the reasonable value of the attorney's time on a contingent-fee case. No attorney may charge any fee beyond what the special master or court awards as compensation. (f) Payment of compensation Generally, no compensation may be paid until the petitioner elects, or is deemed to elect, to receive compensation instead of pursuing a lawsuit. Compensation for expenses under subsection (a)(1)(A)(iii) is paid starting from the date of the Court of Federal Claims' judgment awarding it, but stops if the petitioner later elects to file a civil lawsuit instead. Program compensation payments and administrative costs are protected from cuts under budget-control laws. Payment amounts are based on the net present value of the compensation elements. For injuries or deaths from vaccines given on or after October 1, 1988, payment is a lump sum from the Vaccine Injury Compensation Trust Fund, part or all of which — with the petitioner's consent — the special master may order used to buy an annuity or otherwise handled in whatever way is in the petitioner's best interest. For injuries or deaths from vaccines given before October 1, 1988, payment instead comes as a lump sum from the specific appropriation in subsection (j), under the same net-present-value and annuity rules, except that attorneys' fees and costs are always paid as a lump sum; if that appropriation is too small to cover an annual payment, the usual lawsuit deadline bar under section 300aa–21(a) does not apply, and the petitioner may sue in regular court. When buying an annuity, the Secretary may add a guarantee, negotiate the purchase price and rate of return, and take other steps to protect the government's financial interest; any money the Secretary later receives back is paid into the Trust Fund or into whichever appropriations account originally funded the annuity. (g) Program not primarily liable The Program will not pay for any item or service to the extent payment has been made, or can reasonably be expected to be made, under a state compensation program, an insurance policy, another federal or state health benefits program (other than Medicaid), or by a prepaid health services entity. (h) Liability of health insurance carriers, prepaid health plans, and benefit providers No health insurance policy may make its benefits secondary to Program compensation. No state, and no prepaid health services or health benefits entity, may make its services or benefits secondary to Program compensation — except this rule does not apply to services or benefits under Medicaid. (i) Source of compensation For injuries or deaths from vaccines given before October 1, 1988, the Secretary pays compensation from the appropriation authorized in subsection (j). For injuries or deaths from vaccines given on or after October 1, 1988, compensation is paid from the Vaccine Injury Compensation Trust Fund. (j) Authorization Congress authorized $80,000,000 for each of fiscal years 1989 through 1992, $110,000,000 for fiscal year 1993, and $110,000,000 for each later fiscal year in which a payment is required under subsection (f)(4)(B) — all to pay compensation tied to vaccines given before October 1, 1988. These amounts stay available until spent.