The COVID-19 Vaccine Program Could Use Its Own Shot In The Arm.

Let me state clearly at the outset: I share the public policy and practice of immunizations. When the Covid-19 vaccine became available to my age group, I furiously (and somewhat greedily, in all honesty) searched for the earliest available opportunity to receive the vaccine. I encourage everyone (except for those with a known medical contraindication) to receive the Covid-19 vaccine.

This piece is a very general overview of the systems in place for the very small number of individuals who may sustain an injury or death from the Covid-19 immunization. This article is not a substitute for getting actual legal advice about a particular claim, the status of coverage under various compensation programs and the applicable time deadlines.

For nearly 3 decades, I have handled injury claims under a special program established by the federal government, The National Vaccine Injury Compensation Program (NVICP). While the NVICP is far from perfect, it is a better option than the remedy currently available for those injured by the COVID-19 vaccine.

At present, COVID-19 injury claims are processed via the much-flawed (and scarily-named) Countermeasures Injury Compensation Program (CICP), 42 §§ 247d-6d, 247e-6e. I am not an expert in the CICP. I do not represent CICP claimants In fact, the CICP is structured in such a way as to discourage individuals from getting help from an attorney. Any compensation paid to an injured person or their estate is limited in scope and does not include attorneys fees and costs. From a practical standpoint, this makes it financially burdensome for those seeking legal help to get such assistance.

The CICP is an administrative, not a judicial program. A list of those items covered by the CICP is enough to make one squirm. In addition to Covid-19 vaccines, the CICP is the remedy for serious injuries and deaths as a result of “countermeasures” (vaccines, treatments, devices) to address the following concerns: Ebola, Nerve Agents and certain Pesticides, Zika, Anthrax, Acute Radiation Syndrome, Pandemic [not seasonal] influenza, Marburg (I had to look this up: Marburg is a virus identified in 1967 that causes Marburg Hemorrhagic Fever), Smallpox and Botulinum Toxin.

CICP claims must be filed within one year of their accrual. The CICP is a one-step process with no right to a judicial appeal. This program is funded by (inherently fickle) Congressional appropriations.

The NVICP covers a myriad of more “traditional” (childhood) vaccines, such as the MMR, DtaP, Hepatitis B, Hepatitis A, Polio (live and inactivated) Seasonal Influenza, HipB, HPV, Pneumococcal, Rotavirus, Meningococcal, Varicella, and variations of these vaccines. The NVICP is a complex judicial program with a right to appeal. This program is funded by a small excise tax on the covered vaccines; there is a separate excise tax-funded account to cover reasonable attorneys fees and costs of the claimant.

Both the CICP and the NVICP involve complicated requirements and documentation, better left to another article or footnote. Neither is user-friendly.

Given the widespread Covid-19 vaccination, it is inevitable that there will be a small incidence of medical injuries and longer-term health consequences. The relatively small risk of these serious injuries and death do not undermine the importance of vaccination, but do argue for a fairer system of compensation. The CICP is far from an ideal system to handle any claims for serious injuries or death from the Covid-19 vaccine.

There is some discussion in the Congress and the Department of Health and Human Services (the agency representing the government in these programs) about having Covid-19 claims moved from the CICP to the NVICP. As of the date of this footnote, July 2, 2021, Covid-19 claims are handled under the CICP. Moreover, there has been no definitive answer to what would happen if a Covid-19 claim were filed under the CICP and thereafter Covid-19 claims become the purview of the NICP. This is uncharted legal territory.

In my opinion, the NVICP is a better place for Covid-19 claims than the CICP. The NVICP has its own issues, but has the potential for being fairer to Covid-19 claimants. For those with particular concerns about a claim arising from any vaccine, the best advice is to contact an attorney experienced in this field of practice. The U.S. Court of Federal Claims website, for example, contains a section devoted to Vaccine Claims. A link to attorneys who practice in the field can be found there. Likewise, there is a specialized bar association, the Vaccine Injured Petitioners Bar Association {VIP BAR} has a website and a public directory of its membership.

Stay healthy. Be safe.