§ 38.2-5009. Commission awards for birth-related neurological injuries;notice of award.
A. Upon determining (i) that an infant has sustained a birth-relatedneurological injury and (ii) that obstetrical services were delivered by aparticipating physician at the birth or that the birth occurred in aparticipating hospital, the Commission shall make an award providingcompensation for the following items relative to such injury:
1. Actual medically necessary and reasonable expenses of medical andhospital, rehabilitative, therapeutic, nursing, attendant, residential andcustodial care and service, medications, supplies, special equipment orfacilities, and related travel, such expenses to be paid as they areincurred. Reimbursement may be provided for nursing and attendant care thatis provided by a relative or legal guardian of a Program beneficiary so longas that care is beyond the scope of child care duties and services normallyand gratuitously provided by family members to uninjured children. However,such expenses shall not include:
a. Expenses for items or services that the infant has received, or isentitled to receive, under the laws of any state or the federal governmentexcept to the extent prohibited by federal law;
b. Expenses for items or services that the infant has received, or iscontractually entitled to receive, from any prepaid health plan, healthmaintenance organization, or other private insuring entity;
c. Expenses for which the infant has received reimbursement, or for which theinfant is entitled to receive reimbursement, under the laws of any state orfederal government except to the extent prohibited by federal law; and
d. Expenses for which the infant has received reimbursement, or for which theinfant is contractually entitled to receive reimbursement, pursuant to theprovisions of any health or sickness insurance policy or other privateinsurance program.
Expenses of medical and hospital services under this subdivision shall belimited to such charges as prevail in the same community for similartreatment of injured persons of a like standard of living when such treatmentis paid for by the injured person.
In order to provide coverage for expenses of medical and hospital servicesunder this subdivision, the Commission, in all cases where a comparativeanalysis of the costs, including the effects on the infant's family's healthinsurance coverage, and benefits indicates that such action is morecost-effective than awarding payment of medical and hospital expenses, shall(i) require the claimant to purchase private health insurance providingcoverage for such expenses, provided that the premium or other costs of suchcoverage shall be paid by the Fund; (ii) require the claimant to participatein the State Medicaid Program, the Children's Health Insurance Program orother state or federal health insurance program for which the infant iseligible; or (iii) if the Commission determines that it would be unreasonablyburdensome to require the claimant to purchase private health insurance andthat the infant is ineligible for a health insurance program described inclause (ii), to make an award providing compensation for the cost of privateaccident and sickness insurance for the infant.
2. Loss of earnings from the age of 18 are to be paid in regular installmentsbeginning on the eighteenth birthday of the infant. An infant found to havesustained a birth-related neurological injury shall be conclusively presumedto have been able to earn income from work from the age of 18 through the ageof 65, if he had not been injured, in the amount of 50 percent of the averageweekly wage in the Commonwealth of workers in the private, nonfarm sector.Payments shall be calculated based on the Commonwealth's reporting periodimmediately preceding the 18th birthday of the claimant child, andsubsequently adjusted based upon the succeeding annual reports of theCommonwealth. The provisions of § 65.2-531 shall apply to any benefitsawarded under this subdivision.
3. Reasonable expenses incurred in connection with the filing of a claimunder this chapter, including reasonable attorneys' fees, which shall besubject to the approval and award of the Commission.
A copy of the award shall be sent immediately by registered or certified mailto the parties.
B. The amendments to this section enacted pursuant to Chapter 535 of the Actsof Assembly of 1990 shall be retroactively effective in all cases arisingprior to July 1, 1990, that have been timely filed and are not yet final.
(1987, c. 540; 1989, c. 523; 1990, c. 535; 1999, c. 823; 2000, c. 1038; 2003,c. 897; 2004, cc. 896, 931; 2008, cc. 267, 520.)
§ 38.2-5009. Commission awards for birth-related neurological injuries;notice of award.
A. Upon determining (i) that an infant has sustained a birth-relatedneurological injury and (ii) that obstetrical services were delivered by aparticipating physician at the birth or that the birth occurred in aparticipating hospital, the Commission shall make an award providingcompensation for the following items relative to such injury:
1. Actual medically necessary and reasonable expenses of medical andhospital, rehabilitative, therapeutic, nursing, attendant, residential andcustodial care and service, medications, supplies, special equipment orfacilities, and related travel, such expenses to be paid as they areincurred. Reimbursement may be provided for nursing and attendant care thatis provided by a relative or legal guardian of a Program beneficiary so longas that care is beyond the scope of child care duties and services normallyand gratuitously provided by family members to uninjured children. However,such expenses shall not include:
a. Expenses for items or services that the infant has received, or isentitled to receive, under the laws of any state or the federal governmentexcept to the extent prohibited by federal law;
b. Expenses for items or services that the infant has received, or iscontractually entitled to receive, from any prepaid health plan, healthmaintenance organization, or other private insuring entity;
c. Expenses for which the infant has received reimbursement, or for which theinfant is entitled to receive reimbursement, under the laws of any state orfederal government except to the extent prohibited by federal law; and
d. Expenses for which the infant has received reimbursement, or for which theinfant is contractually entitled to receive reimbursement, pursuant to theprovisions of any health or sickness insurance policy or other privateinsurance program.
Expenses of medical and hospital services under this subdivision shall belimited to such charges as prevail in the same community for similartreatment of injured persons of a like standard of living when such treatmentis paid for by the injured person.
In order to provide coverage for expenses of medical and hospital servicesunder this subdivision, the Commission, in all cases where a comparativeanalysis of the costs, including the effects on the infant's family's healthinsurance coverage, and benefits indicates that such action is morecost-effective than awarding payment of medical and hospital expenses, shall(i) require the claimant to purchase private health insurance providingcoverage for such expenses, provided that the premium or other costs of suchcoverage shall be paid by the Fund; (ii) require the claimant to participatein the State Medicaid Program, the Children's Health Insurance Program orother state or federal health insurance program for which the infant iseligible; or (iii) if the Commission determines that it would be unreasonablyburdensome to require the claimant to purchase private health insurance andthat the infant is ineligible for a health insurance program described inclause (ii), to make an award providing compensation for the cost of privateaccident and sickness insurance for the infant.
2. Loss of earnings from the age of 18 are to be paid in regular installmentsbeginning on the eighteenth birthday of the infant. An infant found to havesustained a birth-related neurological injury shall be conclusively presumedto have been able to earn income from work from the age of 18 through the ageof 65, if he had not been injured, in the amount of 50 percent of the averageweekly wage in the Commonwealth of workers in the private, nonfarm sector.Payments shall be calculated based on the Commonwealth's reporting periodimmediately preceding the 18th birthday of the claimant child, andsubsequently adjusted based upon the succeeding annual reports of theCommonwealth. The provisions of § 65.2-531 shall apply to any benefitsawarded under this subdivision.
3. Reasonable expenses incurred in connection with the filing of a claimunder this chapter, including reasonable attorneys' fees, which shall besubject to the approval and award of the Commission.
A copy of the award shall be sent immediately by registered or certified mailto the parties.
B. The amendments to this section enacted pursuant to Chapter 535 of the Actsof Assembly of 1990 shall be retroactively effective in all cases arisingprior to July 1, 1990, that have been timely filed and are not yet final.
(1987, c. 540; 1989, c. 523; 1990, c. 535; 1999, c. 823; 2000, c. 1038; 2003,c. 897; 2004, cc. 896, 931; 2008, cc. 267, 520.)
§ 38.2-5009. Commission awards for birth-related neurological injuries;notice of award.
A. Upon determining (i) that an infant has sustained a birth-relatedneurological injury and (ii) that obstetrical services were delivered by aparticipating physician at the birth or that the birth occurred in aparticipating hospital, the Commission shall make an award providingcompensation for the following items relative to such injury:
1. Actual medically necessary and reasonable expenses of medical andhospital, rehabilitative, therapeutic, nursing, attendant, residential andcustodial care and service, medications, supplies, special equipment orfacilities, and related travel, such expenses to be paid as they areincurred. Reimbursement may be provided for nursing and attendant care thatis provided by a relative or legal guardian of a Program beneficiary so longas that care is beyond the scope of child care duties and services normallyand gratuitously provided by family members to uninjured children. However,such expenses shall not include:
a. Expenses for items or services that the infant has received, or isentitled to receive, under the laws of any state or the federal governmentexcept to the extent prohibited by federal law;
b. Expenses for items or services that the infant has received, or iscontractually entitled to receive, from any prepaid health plan, healthmaintenance organization, or other private insuring entity;
c. Expenses for which the infant has received reimbursement, or for which theinfant is entitled to receive reimbursement, under the laws of any state orfederal government except to the extent prohibited by federal law; and
d. Expenses for which the infant has received reimbursement, or for which theinfant is contractually entitled to receive reimbursement, pursuant to theprovisions of any health or sickness insurance policy or other privateinsurance program.
Expenses of medical and hospital services under this subdivision shall belimited to such charges as prevail in the same community for similartreatment of injured persons of a like standard of living when such treatmentis paid for by the injured person.
In order to provide coverage for expenses of medical and hospital servicesunder this subdivision, the Commission, in all cases where a comparativeanalysis of the costs, including the effects on the infant's family's healthinsurance coverage, and benefits indicates that such action is morecost-effective than awarding payment of medical and hospital expenses, shall(i) require the claimant to purchase private health insurance providingcoverage for such expenses, provided that the premium or other costs of suchcoverage shall be paid by the Fund; (ii) require the claimant to participatein the State Medicaid Program, the Children's Health Insurance Program orother state or federal health insurance program for which the infant iseligible; or (iii) if the Commission determines that it would be unreasonablyburdensome to require the claimant to purchase private health insurance andthat the infant is ineligible for a health insurance program described inclause (ii), to make an award providing compensation for the cost of privateaccident and sickness insurance for the infant.
2. Loss of earnings from the age of 18 are to be paid in regular installmentsbeginning on the eighteenth birthday of the infant. An infant found to havesustained a birth-related neurological injury shall be conclusively presumedto have been able to earn income from work from the age of 18 through the ageof 65, if he had not been injured, in the amount of 50 percent of the averageweekly wage in the Commonwealth of workers in the private, nonfarm sector.Payments shall be calculated based on the Commonwealth's reporting periodimmediately preceding the 18th birthday of the claimant child, andsubsequently adjusted based upon the succeeding annual reports of theCommonwealth. The provisions of § 65.2-531 shall apply to any benefitsawarded under this subdivision.
3. Reasonable expenses incurred in connection with the filing of a claimunder this chapter, including reasonable attorneys' fees, which shall besubject to the approval and award of the Commission.
A copy of the award shall be sent immediately by registered or certified mailto the parties.
B. The amendments to this section enacted pursuant to Chapter 535 of the Actsof Assembly of 1990 shall be retroactively effective in all cases arisingprior to July 1, 1990, that have been timely filed and are not yet final.
(1987, c. 540; 1989, c. 523; 1990, c. 535; 1999, c. 823; 2000, c. 1038; 2003,c. 897; 2004, cc. 896, 931; 2008, cc. 267, 520.)
