Participating hospitals pay $55 per live birth defined as the number of births last submitted in the annual report to the Virginia Health Information. The maximum annual fee any hospital would pay is $200,000.

The annual fee is $6,200 to be a participating physician.

The fees are set in the Code of Virginia § 38.2-5020.

For full coverage, the participating fee must be paid by December 1 to be covered starting on January 1 for the following year.

The fee can be prorated. Virginia law requires that the Program be given a 30-day advance notice of the requested participation start date. Please contact us for more information.

Coverage can be requested based on either the physician who delivered the infant or the hospital where the birth took place as long as one of them is a participating provider. Both of them do not have to be participating providers.

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

Yes, all physicians, certified nurse midwives, and hospitals are required by law (Virginia Code §38.2-5004.1) to inform their obstetrical patients whether or not they participate in the Program.

The Program provides Patient Materials to be used to inform patients about participation status and about the Program’s benefits. Materials are available in English and Spanish.

When a hospital or physician or certified nurse midwife participates in the Program, no tort action is allowed by law (Virginia Code § 38.2- 5004) when a qualifying birth-related neurological injury occurs.

Instead, a petition and hearing process is used as outlined in the law (Virginia Code § 38.2- 5004 through § 38.2-5014) to determine Program eligibility and award. Program admittance is considered an exclusive remedy (Virginia Code § 38.2- 5004).

Participants receive coverage and reimbursement for medically necessary and reasonable care as well as equipment, supplies, medications, therapies, housing assistance, transportation, financial support and other benefits for life. See our Benefits section for a full description of these benefits.

No. Participation in the Program does not replace malpractice coverage. Insurers are required to provide an annual credit to participating providers (both hospitals and physicians) on their medical malpractice liability coverage according to the law (Virginia Law §38.2-5020.1). The amount of the credit varies depending on the insurance company.

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 Data Bank.

However, when a petition for entry into the Birth-Injury Program is filed with the Virginia Workers’ Compensation Commission, the law (Virginia Law § 38.2- 5004)  requires reviews by the:

• Virginia Department of Health Professions for the providers involved and may be referred to the Board of Medicine for disciplinary action
• Virginia Department of Health for the hospitals involved

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 go into the Virginia Birth-Related Neurological Compensation Fund and are solely used to cover expenses for the Program participants and operations (Virginia Law §38.2-5015).

The State Corporation Commission conducts an actuarial study every two years to determine if the Fund is sound  (Virginia Law § 38.2-5020).

The Program is regulated through:

• Code of Virginia Code – Chapter 50. Virginia Birth-Related Neurological Injury Compensation Act provides statutory authority and requirements for the Program and the Fund.
• The Program has a Plan of Operation that must be approved (Virginia Code § 38.2-5017) by the State Corporation Commission.
• All admissions into the Program are determined by the Virginia Workers’ Compensation Commission.
• The Program is governed by a nine-member Board of Directors appointed by the Governor.
• The Board manages investments of the Fund. The Board reports annually to the Governor, Speaker of the House of Delegates, Clerk of the House of Delegates, Chairman of the Senate Rules Committee and the Clerk of the Senate regarding the investment of the Fund’s assets.
• The Board is required to conduct an annual audit and share the findings with those receiving the Fund investment report above. Starting July 1, 2026, the audit will be shared also with the Auditor of Public Accounts and any relevant analysis provided to the Governor and General Assembly.
• The State Corporation Commission is required to conduct an actuarial study of the Program at least every other year.

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.

It means the physician no longer treats live patients and does not make clinical decisions about patient care.

Activities such as teaching, research, administrative work, lectures, simulations, or mentoring without responsibility for patient treatment are not considered active clinical practice.

Providing direct patient care or supervising clinical decisions for patient treatment is considered active clinical practice and generally does not qualify for the exemption.

The $300 assessment applies to all Virginia licensed physicians regardless of specialty or income. However, if you meet one of the exemption categories (see Exempt Providers), you may file an exemption affidavit instead of paying the assessment. If you become a participating provider and pay that $6,200 annual fee, you do not also have to pay the assessment.

It depends.

If you are providing telemedicine services to a patient located in Virginia, then you would be considered to be practicing medicine in Virginia and would need to pay the assessment fee.

If you are not providing any active medical or clinical care then you may meet the criteria for an exemption.

The exemption affidavit must be completed to qualify, see Exempt Providers.

If you retired from clinical practice prior to September 30 of the preceding year, you do not have to pay the assessment. For example, if you retired in June 2026, you would not owe the 2027 assessment.

The exemption affidavit must be completed to qualify, see Exempt Providers.

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.

Yes. The physician assessment cannot be prorated or discounted based on income.

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

Yes, all licensed physicians claiming an exemption must fill out the affidavit each year.

If the physician is claiming an exemption and the affidavit is not completed each year, then the physician will be assessed and liable for the annual $300 fee for the year(s) not completed.

Yes, the participating provider agreement for a participating physician or a participating hospital must be signed and submitted each year.

A physician who meets one of the following criteria may be exempt.

• Employed directly by the Commonwealth of Virginia or the federal government and income from professional fees is less than 10% of annual salary
• Enrolled in a full-time graduate medical education program accredited by the American Council for Graduate Medical Education.
• Retired from active clinical
• Active clinical practice is limited to the provision of services, voluntarily and without compensation, to any patient of any clinic organized in whole or in part for the delivery of health care services without charge.
• Does not practice medicine in

An affidavit must be completed to claim an exemption under the law (Virginia Code § 38.2-5020.1).

Generally, yes. The Virginia Board of Medicine guidance states “The practice of medicine occurs where the patient is located at the time telemedicine services are used…” A physician who treats a patient located in Virginia by telemedicine is considered to be practicing medicine in Virginia, not in the state where the physician or their office is located. The $300 annual assessment applies to physicians providing telemedicine services to patients in Virginia.