Legislation Introduced to Update the Vaccine Injury Compensation Program

By: Jonathan Svitak & Rhonda Lorenz-Pignato

On June 10, 2021, U.S. Representative Lloyd Doggett (D-TX), among others, announced legislation aiming to update and improve the Vaccine Injury Compensation Program (VICP). The Vaccine Injury Compensation Modernization Act is being touted as “bipartisan” legislation and aims to address some of the more urgent vaccine-injury-related issues that have arisen due to the COVID-19 pandemic and response. It also addresses some of the more longstanding problems with the original VICP established in 1986.

What issues does the VICP Modernization Act address?

Specifically, the VICP Modernization Act would address some of the following issues:

1. Reduce case backlog by expanding the number of Special Masters from a ceiling of 8 to a floor of 10.
2. Increase transparency by requiring the Special Masters to provide an annual report on caseload, a number of pending cases, and whether hearings have been scheduled, how many days it took for cases to receive a judgment, and any recommendations regarding the need for more Special Masters.
3. Provide fair compensation for injuries by increasing the cap on pain and suffering damages from the current $250,000 to $600,000 for awards entered in 2021, and in years thereafter, to an amount that is adjusted based on the Consumer Price Index for all urban consumers.
4. Provide additional compensation for vaccine-related deaths but increasing the award from the current $250,000 to $600,000 for awards entered in 2021, and in years thereafter, to an amount that is adjusted based on the Consumer Price Index for all urban consumers.
5. Ensure consumers have sufficient time to file claims by increasing the statute of limitations from 3 years to 5 years.
6. Expedite the addition of new vaccines to the program by requiring the Department of Health and Human Services to promulgate rulemaking to add a CDC-recommended vaccine or injury to the injury table within 6 months of a recommendation rather than 2 years.
7. Expand the types of vaccines eligible for coverage under the VICP by including vaccines and injuries recommended by the CDC for routine administration in adults.

Vaccine Access Improvement Act Would Streamline the Excise Tax Process

In addition to the Vaccine Injury Compensation Modernization Act, additional legislation has been proposed that would streamline the application of the 75-cent excise tax on covered-vaccine doses. This legislation, called the Vaccine Access Improvement Act, would eliminate the requirement that Congress pass legislation to apply the tax to a new vaccine each time it is added to the VICP. Instead, it would automatically be applied once HHS adds a vaccine to the table.

How This Legislation Could Make a Difference for Vaccine Injury Victims

These are extraordinary measures that would drastically improve the experience of the VICP for both our current clients and for others who are unfortunate enough to be injured by vaccines. As most of our current clients know, one of the most frustrating aspects of the VICP is the length of time it takes to reach a resolution – even worse if it requires a hearing date before the Special Master. By increasing the number of Special Masters and increasing transparency with regard to how long these cases are pending, we hope that cases are resolved more quickly and efficiently.

Another problem that this legislation aims to address is fairly compensating victims of vaccine injuries. No matter how severe one’s vaccine injury is, as of today, they are only entitled to $250,000 in pain and suffering damages. For clients with permanent and disabling injuries, this is simply not enough. Raising the cap would go a long way towards providing these folks with the compensation they deserve.

Finally, this legislation would address the most pressing issue we face today: injuries due to the COVID-19 vaccine. If you’ve heard me discuss this topic before, you’ll know how I feel about the Countermeasures Injury Compensation Program, which is currently set up to provide “compensation” for victims of COVID-19 vaccine injuries. The problem, or problems I should say, is that proving a COVID-19 vaccine caused your injury is a tall task and petitioner’s usually have to do so without the benefit of an attorney, as attorneys’ fees are not available in the CICP. Second, even if you’re able to prove that the COVID-19 vaccine caused your injury, the compensation available to you includes out-of-pocket medical expenses and lost wages. Crucially, there is no compensation for pain and suffering.

As you can see, this legislation seeks to directly address those issues. By expediting the process for adding new vaccines to the VICP’s vaccine injury table, COVID-19 vaccines could be added to the VICP much more quickly than in the past. Similarly, by removing the requirement that Congress approve an excise tax for new vaccines, that time-consuming step would be taken out of the equation altogether. The result would be a much more streamlined process for adding new vaccines to the VICP table, with the obvious goal of getting COVID-19 vaccines added expeditiously.

In sum, this is huge news and we are excited for both our current clients and future clients. These changes were much needed for different reasons. Some address long-standing issues and others are more recent. We will keep you updated on the progress of this legislation and hope to have more good news for you soon.

References:

1. Official Statement from U.S. Representative Lloyd Doggett. 
2. Press Release from Ways & Means Committee, Chairman Richard Neal.