(a) Establishment of Fund
Upon the issuance by the Secretary of a declaration under section
247d–6d(b) of this title, there is hereby established in the Treasury an emergency fund designated as the "Covered Countermeasure Process Fund" for purposes of providing timely, uniform, and adequate compensation to eligible individuals for covered injuries directly caused by the administration or use of a covered countermeasure pursuant to such declaration, which Fund shall consist of such amounts designated as emergency appropriations under section
402 of H. Con. Res. 95 of the 109th Congress, this emergency designation shall remain in effect through October 1, 2006.
(b) Payment of compensation
(1) In general
If the Secretary issues a declaration under 247d–6d(b) of this title, the Secretary shall, after amounts have by law been provided for the Fund under subsection (a), provide compensation to an eligible individual for a covered injury directly caused by the administration or use of a covered countermeasure pursuant to such declaration.
(2) Elements of compensation
The compensation that shall be provided pursuant to paragraph (1) shall have the same elements, and be in the same amount, as is prescribed by sections
239c, 239d, and 239e of this title in the case of certain individuals injured as a result of administration of certain countermeasures against smallpox, except that section
239e(a)(2)(B) of this title shall not apply.
(3) Rule of construction
Neither reasonable and necessary medical benefits nor lifetime total benefits for lost employment income due to permanent and total disability shall be limited by section
239e of this title.
(4) Determination of eligibility and compensation
Except as provided in this section, the procedures for determining, and for reviewing a determination of, whether an individual is an eligible individual, whether such individual has sustained a covered injury, whether compensation may be available under this section, and the amount of such compensation shall be those stated in section
239a of this title (other than in subsection (d)(2) of such section), in regulations issued pursuant to that section, and in such additional or alternate regulations as the Secretary may promulgate for purposes of this section. In making determinations under this section, other than those described in paragraph (5)(A) as to the direct causation of a covered injury, the Secretary may only make such determination based on compelling, reliable, valid, medical and scientific evidence.
(5) Covered countermeasure injury table
(A) In general
The Secretary shall by regulation establish a table identifying covered injuries that shall be presumed to be directly caused by the administration or use of a covered countermeasure 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. The Secretary may only identify such covered injuries, for purpose of inclusion on the table, where the Secretary determines, based on compelling, reliable, valid, medical and scientific evidence that administration or use of the covered countermeasure directly caused such covered injury.
(B) Amendments
The provisions of section
239b of this title (other than a provision of subsection (a)(2) of such section that relates to accidental vaccinia inoculation) shall apply to the table established under this section.
(C) Judicial review
No court of the United States, or of any State, shall have subject matter jurisdiction to review, whether by mandamus or otherwise, any action by the Secretary under this paragraph.
(6) Meanings of terms
In applying sections
239a, 239b, 239c, 239d, and 239e of this title for purposes of this section—
(A) the terms "vaccine" and "smallpox vaccine" shall be deemed to mean a covered countermeasure;
(B) the terms "smallpox vaccine injury table" and "table established under section
239b of this title" shall be deemed to refer to the table established under paragraph (4); and
(C) other terms used in those sections shall have the meanings given to such terms by this section.
(c) Voluntary program
The Secretary shall ensure that a State, local, or Department of Health and Human Services plan to administer or use a covered countermeasure is consistent with any declaration under 247d–6d of this title and any applicable guidelines of the Centers for Disease Control and Prevention and that 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.
(d) Exhaustion; exclusivity; election
(1) Exhaustion
Subject to paragraph (5), a covered individual may not bring a civil action under section
247d–6d(d) of this title against a covered person (as such term is defined in section
247d–6d(i)(2) of this title) unless such individual has exhausted such remedies as are available under subsection (a), except that if amounts have not by law been provided for the Fund under subsection (a), or if the Secretary fails to make a final determination on a request for benefits or compensation filed in accordance with the requirements of this section within 240 days after such request was filed, the individual may seek any remedy that may be available under section
247d–6d(d) of this title.
(2) Tolling of statute of limitations
The time limit for filing a civil action under section
247d–6d(d) of this title for an injury or death shall be tolled during the pendency of a claim for compensation under subsection (a).
(3) Rule of construction
This section shall not be construed as superseding or otherwise affecting the application of a requirement, under chapter 171 of title 28, to exhaust administrative remedies.
(4) Exclusivity
The remedy provided by subsection (a) shall be exclusive of any other civil action or proceeding for any claim or suit this section encompasses, except for a proceeding under section
247d–6d of this title.
(5) Election
If under subsection (a) the Secretary determines that a covered individual qualifies for compensation, the individual has an election to accept the compensation or to bring an action under section
247d–6d(d) of this title. If such individual elects to accept the compensation, the individual may not bring such an action.
(e) Definitions
For purposes of this section, the following terms shall have the following meanings:
(1) Covered countermeasure
The term "covered countermeasure" has the meaning given such term in section
247d–6d of this title.
(2) Covered individual
The term "covered individual", with respect to administration or use of a covered countermeasure pursuant to a declaration, means an individual—
(A) who is in a population specified in such declaration, and with respect to whom the administration or use of the covered countermeasure satisfies the other specifications of such declaration; or
(B) who uses the covered countermeasure, or to whom the covered countermeasure is administered, in a good faith belief that the individual is in the category described by subparagraph (A).
(3) Covered injury
The term "covered injury" means serious physical injury or death.
(4) Declaration
The term "declaration" means a declaration under section
247d–6d(b) of this title.
(5) Eligible individual
The term "eligible individual" means an individual who is determined, in accordance with subsection (b), to be a covered individual who sustains a covered injury.