Impending Changes to Vaccine Injury Compensation
March’s
Advisory Commission on Childhood Vaccines (ACCV) meeting revealed that
the review of medical literature requested by the U.S. Department of
Health and Human Services (DHHS) from the National Academy of Medicine
(NAM) is expected to be published by the end of April and was
subsequently published on the National Academy of Medicine’s project
webpage on April 16, 2024.1
As previously reported, the review is being conducted under the guidance of the National Childhood Vaccine Injury Act of 1986 (1986 Act)2 to determine if COVID-19 vaccines cause injuries. The ACCV will consider the report’s findings and may recommend changing the federal Vaccine Injury Table (VIT) to the Secretary of Health. The VIT is used in the federal Vaccine Injury Compensation Program (VICP) created by the 1986 Act.3 As noted in my December 2022 article, the report findings are likely to bring COVID-19 vaccine manufacturers closer to achieving the liability-free status conferred by the VICP.4 Regardless of any ACCV recommendation, the Secretary may modify the VIT through administrative rule-making and is not bound by ACCV recommendations.
Acting chair CDR Grimes M.D. advised that an ad hoc meeting before three ACCV members rotate off the commission was likely. Such a meeting would ensure there is a quorum of commissioners to consider NAM report findings and possibly making recommendations.
Chronic Membership Vacancies
In recent years, the commission has struggled with vacancies. The commission’s charter requires nine members. There are currently three vacancies and another three of the six filled positions will rotate off the commission in August, and there is an open call for nominations to fill vacancies.5
Adult Vaccine Injury Claims and Compensation Outpaces Those of Children
The Division of Injury Compensation Programs (DICP) reported to the ACCV that for the past ten fiscal years, adult vaccine injury claims filed with the VICP had increased from 474 claims to plateau at about 1,100 for the past several years, except for the 2021 spike of nearly 2,000 claims.6
This spike in 2021 adult claims was attributed to Shoulder Injury Related to Vaccine Administration (SIRVA). Additionally, overall claim increases during the past ten years attributed to a combination of SIRVA and flu shot injury claims. Notably, vaccine injury claims for children have remained very flat for the same period at about 150 claims per year.7
The Department of Justice’s (DOJ) report to the ACCV covered their fiscal year to date (Aug. 16, 2023, to Feb. 15, 2024) and noted that 546 vaccine injury claims were decided. Of those decided claims, 194 were concessions, 252 underwent the adversarial litigative risk process, and 100 claims were dismissed without compensation.
Vaccine Injury Compensation Trust Fund and Adequacy of Compensation
Commissioner Boyle stated his concern about award adequacy and noted that while in recent years the number of claims compensated annually by the VICP has increased, total trust fund outlays do not appear to have kept pace.8 Federal officials responded by stating such a comparison was not an indicator of award adequacy. The issue of award adequacy has been raised previously and a 2009 report commissioned by DHHS recommended DHHS get routine feedback from the vaccine injured who receive VICP compensation to help inform if awards are adequate;9 however, it is unclear if any such feedback program or evaluation of compensation adequacy has implemented.
The Vaccine Injury Trust Fund’s current balance was reported to be over $4.5 billion,10 with compensation to the vaccine injured since the program’s inception in 1989 at about $4.6 billion and their attorney’s fees at about $313 million.11
In recent years, federal officials have been scrutinizing attorney fees during ACCV meetings, and they are published monthly in the program’s monthly report.12 However, what is not provided in the monthly report are federal costs associated with processing the claims and defending the government against vaccine injury claims. That total outlay is reported to be about $273 million.13
To learn more about ACCV, meeting dates, and view NVIC’s public comments to this committee click here.
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