Frequently Asked Questions

The claimant’s primary care physician usually determines the appropriate number of nursing hours required and the appropriate level of care (i.e. C.N.A., L.P.N., R.N.). A written order of medical necessity from the physician must be on file with the Program and a new written order is required for any increase in hours. However, the Program reserves the right to review the medical necessity of the prescribed hours.

Program guidelines stipulate that a nurse or caregiver should not work more than 16 hours per day (assuming the claimant has written orders for the nursing care). This is primarily due to safety concerns.

Additional hours per day in some circumstances may be allowed due to a medical emergency, however, they should be pre-authorized by the Program if possible. For a medical emergency that occurs outside of normal working hours, contact the Program as soon as possible afterward to determine if the hours were payable/reimbursable.

Also please remember daily nursing hours may not exceed the physician’s prescribed daily hours.

The Program can only pay for the prescribed number of hours per day.

Following legislation passed in 2008 family members may be reimbursed for care in accordance with the Program’s Guidelines. See the Program Regulations or Program Handbook for details.

Use of nursing agencies is the recommended method for obtaining services outside the family due to employment and tax issues and medical training, licensing and, liability issues. In some cases, the Program will approve allowing families to hire their own nurses. However, it’s important to note that in such situations the nurse or caregiver must meet the medical requirements as prescribed by the physician and must be an employee of the family, not the Program. If approved, the Program will reimburse the family for the cost of nursing services as approved by the Program. The Program will not pay the nurse or caregiver directly.

All tax and employment issues are the responsibility of the claimant’s family in a reimbursement situation. We highly recommend families consult with a tax professional, lawyer or other qualified individual to ensure you comply with all applicable laws and regulations.

For the Program to pay for the equipment, the Program must be contacted before any purchase. The claimant’s health insurance must first be utilized for the equipment purchase. The Program also must receive a letter of medical necessity or a physician’s order along with what equipment is being recommended. Once the required documentation is obtained, the Program will place an order for the equipment and have it shipped to the family.

The Birth-Injury Act states that the Program may not pay for any services that are contractually available to the claimant through a private or public health coverage policy. Therefore, if you utilize a non-network provider and your health insurer refuses to pay for the service, the Program is not allowed to pay for the service.

As an “in-network” or contracted provider for your insurance carrier, the provider has a contract with the insurance company. The provider must abide by that contract. Any fees or co-payments not specifically allowed under your health insurance policy should not have to be paid. Similarly, the Program also is not allowed to pay any co-payments or fees not allowed under your insurance policy.

When medically necessary, the Program will pay for diapers once the claimant is three-years-old. As with all benefits, other health insurance benefits must first be utilized. If another source, such as your health insurance company, is not paying for them, please contact the Program. In most cases, we can arrange regular deliveries of appropriate diapers to save you time and effort.

Equipment purchased entirely by the Program is generally required to be returned if no longer needed, although some exceptions apply. Returned equipment is sometimes utilized by other claimants or sold with all proceeds returned to the Birth-Injury Fund.

Generally, when a van becomes medically necessary for wheelchair transportation. A listing of van options is available from the Program.

A van paid for by the Program will be replaced when it reaches 100,000 miles. However, other factors, including the vehicle’s service history, will be taken into consideration. Similar to a warranty situation, you should retain all service records to substantiate any concerns.

Yes. The returned van must be in good running condition, with only reasonable and normal body wear, and be able to pass a Virginia state inspection. Returned vans are sold with the proceeds returning to the Birth-Injury Fund, which pays for all claimant services.

The Birth-Injury authorizing legislation does not stipulate any housing benefit except when a claimant is placed in a residential facility. However, the Board of Directors of the Program provides a benefit as outlined in the Program Guidelines. Please see the current guidelines for details.

Generally yes. Please Get in Touch with the Program and review the Program Guidelines for details.

Yes. In April 2004 the Board of Directors approved such a benefit. Essentially, if a claimant moves into an ADA compliant rental unit of similar size and quality to the former rental unit, the Program will pay the difference. However, there is a lifetime benefit maximum of $175,000 and other restrictions and guidelines apply. Please see the Program Guidelines for details.

In its early years, the Program provided “Trust Homes” for claimants. The Program owns these homes and provides for the claimant’s use.

Additionally, for a short period, the Program provided “Cash Grants” for use in purchasing or building a suitable residence for the claimant.

Both of these policies are no longer in effect, primarily due to financial considerations. For the current policy, please see the Program Guidelines.

The Regulations change infrequently, however, if they are altered, generally all claimants are notified. Additionally, any proposed changes will be printed in the Virginia Register during a comment period. They also may be posted on the VA LIS site.

The Program regularly communicates with all claimants. Also, a lot of information is posted on this website. All Virginia Birth-Injury Program board meetings are open to the public (however, discussions of specific claimant issues are held in closed sessions). If you plan to attend a board meeting and speak with the board, while not required, we encourage you to let the Executive Director know in advance so that you may be placed on the agenda and to allow sufficient time.

Entry into the Birth-Injury Program does not provide for any set amount of compensation. The Program operates much like an insurance policy in that it pays for actual medically necessary costs and other legislatively stipulated benefits. Additionally, the Program is the payer of last resort in all situations. There is no cap on the total eligible lifetime costs.

The Regulations are available on the Contact Us and we will send you a copy.

There is no set time or automatic updating every year. However, specifics of some of the Regulations occasionally change to meet claimant needs. All of the changes are made available to claimants as they occur.

The Program conducts an orientation meeting with all new claimants. Additionally, you may contact any of the staff members with questions. A list of families in the Program that are willing to help orient you is also available. For confidentiality reasons, we cannot publish this list on the website.

Participating hospitals pay $52 per live birth in the preceding year, up to a maximum of $200,000. Please remember that by law the hospital is entitled to a malpractice insurance credit from the insurance carrier.

Yes. Please Contact the Program for details.

Either the delivering physician or hospital must participate for the child to be eligible. However, in the case of a qualifying birth, the nonparticipating party is not immune from a tort remedy like the participant.

Coverage becomes effective 30 days following the Program’s receipt of a signed contract and payment.

According to state law effective July 1, 2003, all physicians and hospitals must inform their obstetrical patients whether or not they participate and provide a Program brochure.

As a participating provider, should a qualifying event occur, no tort action is allowed. The entry of a child into the Program is a matter strictly of whether the child meets the inclusion criteria, not an elective choice on the part of the parents or other parties. The first criteria for inclusion is delivery by a participating physician or at a participating hospital. (See later question for the definition of a birth injury.)

Upon entry into the Program, the child’s medical coverage is provided for life. Additionally, at age 18, the child will begin receiving a limited compensation benefit.

No. Participation in the Program only entitles a qualifying birth-injured child that you deliver to receive the benefits of the Program. The Program then pays medically necessary care for the child for life. Additionally, upon reaching the age of 18, the child receives a wage benefit

Yes. The Birth-Injury Act stipulates that every participating physician is entitled to a credit on his or her malpractice insurance. The amount of the credit varies depending on the insurance company. In some cases it may be less than the participating physician fee, but in other cases it may be equal to or more than the fee. Please talk with your insurance agent or company to assure that you receive the credit.

No, it is not reported to the National Practitioner Database. However, by law, when a petition for entry into the Birth-Injury Program is filed with the Virginia Workers’ Compensation Commission, a review is conducted by the Virginia Board of Medicine.

Thirty (30) days following the Program’s receipt of your signed contract and payment.

Yes. You can obtain the amount for a prorated fee by Contacting the Program.

Depending on the year, the range has been from about 85 percent to 95 percent of all practicing OBs with at least 30 deliveries annually in the Commonwealth.

For those who deliver babies, becoming a participating provider has several advantages including:

• A child who qualifies will be assured of a lifetime of care including all medically necessary expenses and, beginning at age 18, compensation for lost wages.
• Participating physicians receive a “credit” on the cost of their liability insurance. This credit varies depending on the insurance carrier and may or may not totally offset the participating provider fee.

The annual fee is set by state law at $6,200 per provider. However, remember a participating physician is entitled to a credit on their malpractice insurance.

No. There are four sources of funding:

• Participating physician fees
• Participating hospital fees
• Non-Participating physician assessments
• Assessments of insurance companies selling liability insurance in Virginia

All fees and assessments are utilized by the Virginia Birth-Related Neurological Compensation Program to provide medically necessary care for the children in the Program. The Birth-Injury Program operates according to its authorizing statutes in the Code of Virginia-§38.2-5020 through 5021.

The Program is regulated by statute in a variety of ways including:

• The Code of Virginia is very specific in how the Program is to operate. Additionally, a Plan of Operation is approved by the State Corporation Commission.
• All admissions into the Program are reviewed by the Virginia Workers’ Compensation Commission.
• The Program is required to file an annual financial report, including information regarding its reserve funds to the Governor’s office, the Virginia Senate and the Virginia House of Delegates.
• The Governor appoints all governing board members for the Program.
• At least every-other year, the State Corporation Commission is required to conduct an actuarial study of the Program.

From §38.2-5001 of the Code of Virginia:

“Birth-related neurological injury” means injury to the brain or spinal cord of an infant caused by the deprivation of oxygen or mechanical injury occurring in the course of labor, delivery or resuscitation necessitated by a deprivation of oxygen or mechanical injury that occurred in the course of labor or delivery, in a hospital which renders the infant permanently motorically disabled and (i) developmentally disabled or (ii) for infants sufficiently developed to be cognitively evaluated, cognitively disabled. In order to constitute a “birth-related neurological injury” within the meaning of this chapter, such disability shall cause the infant to be permanently in need of assistance in all activities of daily living.”

Per applicable law, petitions for entry into the Program are adjudicated by the Virginia Workers’ Compensation Commission.

The $300.00 assessment applies to all Virginia licensed physicians regardless of specialty or income. However, if you meet one of the five exemption categories, you may file an exemption affidavit instead of paying the assessment. If you become a participating provider and pay the $6,200.00 annual fee, you do not have to pay the assessment.

You may meet the criteria for an exemption. Please see the exemption affidavit.

If you retired prior to September 30 of the preceding year, you do not have to pay the assessment. For example, if you retired in June 2025, you would not owe the 2026 assessment. However, you must submit an exemption affidavit.

If you are paid directly by the state or the federal government then you are usually exempt. However, if you are paid through an intermediary (such as a Community Services Board or federal contractor) then you must pay the assessment.

The statute does not provide for any prorating or discounts based on hours worked for the non-participating assessment.

The statute does not provide for any prorating or discounts based on income level.

No. To become a participating physician you must pay the participating physician fee and sign a participating provider agreement.

The Program may provide the names of all non-compliant physicians to the State Corporation Commission for enforcement.

By law, the Birth-Injury Program is required to provide the Bureau of Insurance with the names of all physicians who do not respond to the three assessment notices. The Bureau then issues a Rule To Show Cause, which requires that you inform them why you did not pay the assessment for that year. If there is no response, other enforcement measures are taken.

Physician addresses are obtained from the Virginia Board of Medicine. Per state law, the list is based on physicians with an active license practicing in Virginia on September 30 of the year prior to the assessment year (For example, addresses were downloaded on September 30, 2015 for the 2016 assessment).