Proposed Laws Aim to Modernize Vaccine Injury Compensation

October 8, 2021

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New proposed legislation would increase benefits and streamline the process for people seeking compensation for injuries caused by vaccines. In addition to moving compensation into the 21st
century, the measure would allow persons injured by the COVID-19 vaccine to receive injury compensation.

In June, U.S. Representative Lloyd Doggett (D-TX), Chair of the House Ways & Means Health Subcommittee, U.S. Representative Fred Upton (R-MI), former Chair of the House Energy &
Commerce Committee, and U.S. Representative Mike Kelly (R-PA), Ranking Member of the House Ways & Means Oversight Subcommittee, announced the introduction of legislation to provide “updates and improvements” to the Vaccine Injury Compensation Program (VICP).

Established in 1986, the VICP provides a no-fault alternative to the traditional legal system through which consumers can be compensated for very rare vaccine-related injuries. “The VICP provides necessary protections and certainty for patients, vaccine administrators, and vaccine manufacturers alike, but has not been significantly updated since first established,” Rep. Doggett,
Rep. Upton, and Rep. Kelly stated in a joint press release. 

The Vaccine Injury Compensation Modernization Act was presented before the House Energy & Commerce Health Subcommittee on June 15. H. R. 3655 proposes increasing the death benefit,
as well as the compensation for “pain and suffering and emotional distress” from a cap of $250,000 to a cap of $600,000. 

The legislation would increase the number of Special Masters (judges for the VICP) designated to hear cases related to vaccine injuries; provide a more expedient timeline for resolving petitions; and expand the types of vaccines eligible for coverage to include those routinely administered to adults according to recommendations from the Centers for Disease Control and Prevention (CDC).

Additionally, the Vaccine Access Improvement Act, also introduced by Rep. Doggett and Rep. Kelly, would serve to streamline the application of the 75-cent excise tax on covered-vaccine doses by eliminating the requirement that Congress pass legislation to apply the tax each time a new vaccine is added to the VICP. Under the proposed legislation, the tax would be automatically applied once the U.S. Department of Health and Human Services (HHS) adds a vaccine to the injury table.

Professor Renée Gentry, Director of GW’s Vaccine Injury Litigation Clinic, supports the proposed legislation. “[It] provides critical updates to the National Vaccine Injury Compensation Program ensuring the public has a vibrant safety net for all those who protect their families and communities by getting vaccinated. The increase in the number of Special Masters will dramatically reduce the overburdened dockets and the increased compensation brings the 32- year-old Program up-to-date, as Congress promised,” Professor Gentry said in the press release.

In an interview with Professor Gentry, she explains why these updates are long overdue. “If you look at the caps on pain and suffering and the death benefit, they are still at $250,000, which is very much 1980’s numbers,” Professor Gentry said. “[Congress] originally intended for it to have a cost-of-living adjustment, and it just never happened. Part of H.R. 3655 is to increase those caps to present-day dollars, which is $600,000, and to incorporate the actual cost of living adjustment in the legislation.”

By increasing the number of Special Masters from “no more than eight” to “no less than 10,” the legislation could potentially speed up the process. “The goal was to resolve a case within 240 days,” Professor Gentry said. “There are trials that are being scheduled two years out.” 

“Today, there are 16 vaccines that are covered, including the influenza vaccination, which is administered to not just children, but to everyone, every year. We now have over 4,000 cases in our program, and still just eight Special Masters. Their dockets are overwhelmed,” Professor Gentry said. 

The legislation would increase the statute of limitations from three years to five years, and would add more vaccines to the program. “In order to get a vaccine added to the Vaccine Injury Compensation Table, it has to be recommended by the CDC for distribution amongst children. If you look at the current table, it’s essentially the child vaccination schedule, but because adults
get many of those same vaccines, the legislation would bring it up to date,” Professor Gentry said.

Once the CDC recommends a new vaccine, HHS has up to two years to add it to the table. “That’s a very long time in fast-developing science and vaccinations,” Professor Gentry said. Under the new legislation, HHS would be required to initiate the process within six months of the CDC’s recommendation.

Modernizing the compensation legislation could potentially increase public trust regarding COVID-19 vaccines. “This legislation is absolutely critical,” Professor Gentry said. “You want people to know that when they get a vaccine and if they are injured, that they will be compensated.”

Currently the COVID-19 vaccines are in the Countermeasures Injury Compensation Program rather than the Vaccine Injury Compensation Program, which means “it’s not a legal process, there’s no right to counsel, there’s no pain and suffering,” Professor Gentry said. 

“Everybody who did the right thing, and got their vaccination, they’re being good citizens, they’re being good community members, and they’re going to get stuck with the Countermeasures program. And, as the law stands now, it will be two years before it gets added to the Vaccine Injury Compensation Program,” she said. 

The legislation is currently in the House Committee on Energy and Commerce. “It was introduced with bipartisan support—something that’s rare these days. It shouldn’t be a partisan
issue,” said Professor Gentry. 

Students from GW’s Vaccine Injury Litigation Clinic have participated in advocacy efforts directed towards increasing the number of Special Masters for several years, but other legislative priorities have pushed the issue down the list. “It’s all about vaccines right now, and so we have the most momentum we’ve ever had,” said Professor Gentry.

“We’re in the process of trying to get co-sponsors and trying to get more people involved and push it through, because it’s the best opportunity that we have to really make a fundamental change that’s going to affect thousands of people, now and in the future,” Professor Gentry said.