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APPENDIX G Possible Modifications to the Virginia Neurological Birth-Related Injury Compensation Act 1. A provision granting the administering agency continuing juris- diction for a finite period (perhaps two years from the date of the hear- ing; in any event, a period not to extend beyond the infant's fourth birthday) in those cases in which (1) it cannot be determined with a reasonable degree of medical certainty whether the infant comes within the definition of a compensable injury at the time of the hearing and (2) the medical evidence suggests that within the period of the continuance medical experts will be able to make such a determination. 2. An explicit provision requiring a court to remand for a decision to the administering agency any case in which there is a substantial question as to whether an infant comes within the provisions of the legislation. 3. An explicit provision making the final decision of the administer- ing agency, and any evidence presented before it, admissible in a subse- quent court proceeding. 4. A provision subrogating the program to the rights of a claimant for purposes of enforcing the cIaimant's right to reimbursement or expenses from any other entity. 5. A provision prohibiting any private entity providing health insur- ance or health care pursuant to a health maintenance organization (HMO) or preferred provider arrangement from writing into its policies an exclusion from coverage for any infant who receives an award under the legislation. 226
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APPENDIX G 227 6. A provision explicitly requiring liability insurers to pass on to participating physicians and hospitals any potential savings resulting from their diminished risk as a result of the legislation. 7. An alternative funding mechanism. Possibilities include a volun- tary assessment against participating hospitals, residency programs, and physicians practicing obstetrics (at the same time requiring a dis- count from liability insurers) and augmentation of this pool with gen- eral revenue funds from the state or a specific trust fund composed of public or private names. Any mandatory assessment against all li- censed physicians should be particularly scrutinized; the program should not be perceived as a tax on physicians. S. A notice provision requiring hospitals and physicians to tell their prospective patients whether they participate in the no-fault program; this notice should be drafted carefully so as not to disqualify an infant for a purely technical reason.