The Virginia Workers Compensation Commission determines Program eligibility.

Their determination (Virginia Code §38.2-5008) is based on if the birth injury meets the following definition in Virginia Code §38.2-5001:

“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.”

In addition, either the obstetrical provider or hospital of birth must also be participating in the Program.