Bloomberg Law
June 10, 2021, 6:13 PMUpdated: June 10, 2021, 9:43 PM

Covid Shot Injury Payments Path Would Ease Under House Bill (1)

Ian Lopez
Ian Lopez
Senior Reporter

Covid-19 shots could find their way into a decades-old injury compensation program intended mostly for children’s vaccines under bipartisan legislation announced by House lawmakers Thursday.

Adding new vaccines to the federal Vaccine Injury Compensation Program (VICP) requires either an act of Congress, or a notice and rulemaking process—which can often be lengthy. A bill by Rep. Lloyd Doggett (D-Texas) and Rep. Mike Kelly (R-Pa.) would make that process easier by giving the Department of Health and Human Services authority to add to the list of eligible shots.

When it comes to getting new vaccines covered by the program, the legislation “definitely speeds things up,” said Christopher Webb, a vaccine injury attorney at Black McLaren Jones Ryland & Griffee P.C.

Under the current structure, it takes at least two years from recommendation for a vaccine to get on the list of those covered by the VICP, Webb said. But the legislation “requires HHS to speed things up on their end to add vaccines recommended by the CDC,” such as Covid-19 vaccines.

Congress is “delegating that power,” Webb said.

The VICP was established through a 1986 law and provides compensation for injuries from vaccines recommended by the Centers for Disease Control and Prevention for routine administration to children.

Covid-19 vaccine injuries are covered under another federal program called the Countermeasures Injury Compensation Program (CICP), but that program is criticized as opaque and less generous than the VICP. The average payout under the VICP, around $533,000, is more than twice the amount of what the CICP typically offers, at a little over $200,000, according to the HHS.

The number of Covid-19 vaccine complications appears relatively low. In the U.S., severe allergic reactions to the shot occurred in approximately two to five people per million, according to the CDC.

The legislation “will give Americans more peace of mind and help put this pandemic behind us even faster,” Kelly said in a statement announcing the legislation, dubbed Vaccine Access Improvement Act.

Case Backlog

Another bill announced Thursday, the Vaccine Injury Compensation Modernization Act by Doggett and Rep. Fred Upton (R-Mich.), addresses concerns of mounting caseloads and lack of transparency within the VICP.

The legislation is among a handful of vaccine-related measures that the House Energy and Commerce Health Subcommittee will consider June 15.

Among the changes proposed in the bill is an increase in the number of special masters—or VICP judges—to reduce the case backlog. The “inadequate number of special masters” currently in the VICP is “one of the largest problems” for the program, said Altom Maglio, an attorney at Maglio Christopher & Toale P.A.

“There’s been an awful lot of vaccine administrations added to coverage in the ensuing 30-plus years” since the VICP went into effect, Maglio said. “They just can’t keep up. And the backlog is growing and growing.”

Others in the vaccine injury law space have lauded the judge increase as a much-needed improvement for the program, framing it as a crucial step during the pandemic.

The legislation ensures “the public has a vibrant safety net for all those who protect their families and communities by getting vaccinated,” Renée Gentry, director of the Vaccine Injury Litigation Clinic at George Washington University Law School, said in a statement.

Also among the changes to the program are an increase in the cap on damages; an increase in the time to file a claim from three to five years; and an expansion of the types of vaccines eligible to include those recommended for routine administration in adults by the CDC.

“This legislation updates an important consumer protection tool to assure it is capable of fairly addressing the one-in-a-million injuries that may be associated with COVID-19 vaccines,” Doggett said in the statement.

(Updates throughout with additional comments.)

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