Whether the child's encephalopathy was caused by his DTaP vaccination and entitled to compensation under the National Vaccine Injury Compensation Program

QUESTIONS PRESENTED ; The Rehabilitation Act of 1973, Section 504! based on the 14" Amendment, protects the rights of children with disabilities from unequal treatment and disability discrimination in federal programs, like the no-fault National Vaccine Injury Compensation Program (NVICP), within The National Childhood Vaccine Injury Compensation Act of 1986 (NCVIA); §§300aa-1 to -34. Both lower Federal Courts found and published from medical records and medical opine; that a child claimed, suffered, was diagnosed, and still suffers a medical injury of encephalopathy; § 300aa—14(b)(3)(A), after his DTaP;? § his theory opined by expert treating physician. Under § 300aa—13(a)(1)(A)?, his published Court preponderance, defined as “proof of actual causation” by this Court in Shalalah v. Whitecotton, equipoises his compensation. Federal Circuit found the master received medical records; records including several instances where the child’s own treating physicians, his neurologist and neurogeneticist at Children’s National in D.C. who diagnosed him as having both encephalopathy, ICD 348.3 and autism, ICD 299.0 on the same treatment dates, documented his regression after May DTaP, and medical exams of contemporaneous acute encephalopathy criterion, as defined by The Act. Agreed by both parties is governement opine that the child’s diagnoses are encephalopathy and subsequent autism diagnoses, and in terms of differentiating between his autism and encephalopathy, his autism is a sequela; 42 CFR § 100.3(d)(3)* of encephalopathy, opining his autism did not cause his encephalopathy, and his vaccination is causally unrelated to autism, both medically and legally as sequela, the master found autism was not a claim and was a sequela. Federal Circuit denied preponderance and compensation, on a “basis” the child also had a subsequent sequela, an autism disability; applying § 300aa—13(a)(1)(B) contrary to this Court’s interpretation®. Autism disability is a protected class of over 3.5 million U.S. citizens, (Buescher, 2014). A contention of unequal treatment on the basis of autism disability in a federal program contains questions of national significance warranting this Court’s supervisory review: (1) Whether Court of Appeals conclusion, that Rogero had not established by a preponderance of the evidence between his encephalopathy and his DTaP vaccination, is in accordance with 42 U.S.C. § 300aa—13(a)(1)(A) and The Rehabilitation Act, when the Court published findings from preponderance evidence, every required matter of § 300aa—11(c)(1)? (2) Whether Federal Circuit contravened § 300aa—13(a)(1)(B) as interpreted by this Court in Shalalah v. Whitecotton, subsequently violating The Rehabilitation Act, Section 504? ' “No ... individual with a disability in the United States ... by reason of ... his disability ...be denied the benefits of, or be subjected to discrimination under any program ... conducted by any Executive agency” [NVICP is conducted by HRSA under HHS, See 45 C.F.R. 84 & 85.]} ? combined vaccines 3 Section 300aa-13(a)(1) states, in relevant part:(a) Compensation shall be awarded under the Program to a petitioner if the special master or court finds on the record as a whole-(A) that the petitioner has demonstrated by a : preponderance (medical records or opine) of the evidence the matters required 42U.S.C. §300aa-11(c)(1). 442 CFR § 100.3(d)(3): Sequela means a condition which was actually caused by a condition [encephalopathy] listed in the Vaccine Injury Table. 5 The Secretary may rebut a prima facie case by proving that the injury [encephalopathy] was in fact caused ‘by factors unrelated to the administration of the vaccine § 300aa-13(a)(1)(B). If the Secretary fails to rebut, the claimant is entitled to compensation. 42 U.S.C. §300aa13(a)(1) Shalala v. Whitecotton, 514 U.S. 208 (1995). 60)