HHS Skips Hearing on SIRVA Removal

Recently, we discussed HHS’s proposal to remove SIRVA from the Vaccine Injury Table. Since then, organizations that oppose the amended rule-change, including the Vaccine Injured Petitioners Bar Association, have organized a campaign. They’re spreading the word to those industries that would be most affected by the change, including pharmacies, hospitals, and drug stores.

Many people from these industries, as well as some former petitioners, wrote letters to the Advisory Commission on Childhood Vaccines (ACCV), that was scheduled to hear arguments for and against the proposal on May 18, 2020.

The hearing would have been the first opportunity for members of the public and representatives of the ACCV to question the HHS’s proposal. Instead of appearing and explaining the reasoning behind the proposed change, HHS failed to appear at all.

Instead, fifteen other participants from the above industries, as well as lawyers representing former petitioners who suffered SIRVA injuries, argued in opposition to the proposed change. At the conclusion of the meeting, the ACCV voted unanimously to oppose the change.

What is the ACCV?

The ACCV makes recommendations to HHS on issues relating to the Vaccine Injury Compensation Program (VICP). It is made up of nine voting members, including doctors, a DOJ lawyer, a lawyer who represents petitioners, and a parent whose child suffered a vaccine injury.

The ACCV’s recommendations are not binding on the HHS, but it helps inform the Secretary as to the issues the VICP is currently facing.

How did we get here?

In its proposal, the HHS claims that a SIRVA injury does not fit with the rest of the program, because SIRVA injuries involve a misplaced needle and, therefore, an at-fault party.

For many reasons, this move conflicts with the stated goals of the VICP program. Number one, the 1986 Act intended to prevent those injured by vaccines from suing vaccine manufacturers, as well as nurses, doctors, pharmacies, and hospitals in civil court.

Removing the most common vaccine injury from the Vaccine Injury Table would lead to an influx of those claims being brought in civil court exposing those parties to civil liability.

Number two, the VICP was meant to be an arena where petitioners had an expedited avenue to compensation for a rare injury. Removing SIRVA from the Vaccine Injury Table or from the VICP will effectively foreclose vaccine-injured petitioners from any compensation at all.

Finally, the removal of SIRVA is not backed by the HHS’s own scientists and the National Academy of Medicine. HHS’s position is that a SIRVA injury is caused by a misplaced needle, however, the misplaced needle alone is not the cause of the injury.

The components of the vaccine, when introduced to the shoulder joint, are what cause the inflammation to occur. SIRVA injuries and their causes have been discussed in a peer-reviewed medical article written by employees of HHS. It is hard to fathom the HHS’s hypocritical position given its own scientists’ findings.

What happens now?

ACCV’s formal recommendation is not the end of the road. The HHS could still move forward with its proposal, although it would be in the face of nearly unanimous opposition. The Secretary will either file the amended change in the federal register or not.

For the sake of our clients, we hope HHS does what is most prudent and just. We will continue to monitor the situation as it unfolds.