UPDATE: HHS Advances to Remove SIRVA from Vaccine Injury Table

UPDATE AS OF 04/05/2021: The Department of Health and Human Services is in the processing of withdrawing the SIRVA rule change. Read this blog to learn more: https://shannonlawgroup.com/hhs-rescinds-proposal-to-remove-sirva-from-vaccine-injury-table/.

If you believe you have a shoulder injury as a result of a vaccine, contact us today for more details. 

–

In April, the Secretary of Health and Human Services (HHS) began the process of removing a type of reaction called Shoulder Injury Related to Vaccine Administration from the Vaccine Injury Compensation Program (VICP). Since then, the Advisory Committee on Childhood Vaccines (ACCV), which makes recommendations on proposed rulemaking to HHS on issues related to the VICP, came out in strong opposition to HHS’s proposal.

Despite the ACCV’s formal recommendation against removal, the Secretary went ahead and published the Notice of Proposed Rulemaking in the Federal Register on July 20, 2020.

How does the rulemaking process work?

The Rulemaking process for the Code of Federal Regulations works like this: Once a notice of proposed rulemaking is published, a deadline is set for any public comments to be made regarding the proposal. In this case, the public has until January 12, 2021, to submit comments in support of or in opposition to the proposal.

Although public comments are one factor that HHS must consider in its decision, it will not base its decision entirely on the number of comments received for or against its proposal. Ultimately, its decision must be based on a combination of its own findings and the record, including the public comments, scientific data, and expert opinions.

After hearing public comments, the Secretary will publish the final rule in the federal register. A final rule must include an “effective date,” so that we know when it will go into effect for future cases. The effective date usually can be no less than 30 days following the publication of the final rule.
We will be prepared for January 12, 2021, and thereafter. In the meantime, our vaccine injury law firm will be doing everything we can to oppose the proposed rule from going into effect.

Why is HHS trying to remove SIRVA from the Table?

HHS claims that a SIRVA injury does not fit with the rest of the program, because SIRVA injuries are caused by a misplaced needle and, therefore, are not associated with the components of the vaccine. This statement is not supported by its own scientists and is a misinterpretation of the purpose and intent of the Vaccine Injury Compensation Program.

Only three years ago, HHS approved of the addition of SIRVA to the Vaccine Injury Table. So, what has changed since then?

As the public became more aware of this injury, more petitions have been filed. Now, the majority of the petitions filed in the VICP allege a SIRVA injury. Although the Vaccine Injury Compensation Fund has over 4 billion dollars in it, it’s clear that HHS’s motivation for removing SIRVA is strictly a financial one. It doesn’t want to pay for SIRVA cases anymore.

Instead, HHS would have these Petitioner file civil lawsuits alleging medical malpractice against the vaccine administrator or medical provider. The goal of the VICP was to prevent these types of cases in the first place. Not only is the burden of proof higher in a medical malpractice lawsuit, but simply finding an attorney willing to take on a SIRVA case with all of the costs typically associated with medical malpractice cases is challenging.

What’s happening to SIRVA cases that are already filed?

For now, any current cases in the VICP alleging a SIRVA injury will continue to be covered by the Vaccine Injury Table. That is also true for any case that is filed before the “effective date,” if the rule becomes final. Many things can change between now and January. We will be closely monitoring the situation. Regardless, we will be prepared for either scenario come January 12, 2021.

If you believe that you have suffered a side effect or injury like SIRVA as a result of a vaccine, you may be entitled to compensation. Time is limited. Call us 24/7 for a free case review at (312) 578-9501 or fill out the form below to get started.