By Wayne Rohde
There is a lot of speculation on where any injuries or death suffered by the American public will be adjudicated once COVID-19 vaccines are approved and distributed. There are two specific and distinctive federal programs that compensate for vaccine injury or death.
The first, the more commonly known of the two, the National Vaccine Injury Compensation Program (NVICP) and the second, a more secretive program called the CounterMeasures Injury Compensation Program (CICP).
The NVICP provides compensation for the approved vaccines for children and adults that are recommended for normal vaccination. The CDC via the Advisory Committee on Immunization Practices (ACIP) will approve a vaccine for administration for children or adults or both. The Secretary of HHS must announce the intent to add the vaccine to the schedule and allow public comment on the addition. Congress weighs in to add a $0.75 if it is a new class of vaccines.
The Federal Court of Claims will adjudicate the petition for any injury or death. The petitioner can appeal to a higher court, all the way up to the Supreme Court if able.
The CICP is entirely different and very problematic.
In the aftermath of the Sept. 11, 2001 terrorist attacks, Congress created the CounterMeasures program to speed compensation to people injured from drugs, vaccines, and devices developed in response to pandemics and national security events. Those included biological warfare and radiation poisoning. A few of the vaccines in that category are for anthrax, ebola, and zika.
The CICP is designed to handle pandemic or other health emergency countermeasures as declared by the Secretary of HHS. And will be the likely landing spot initially for any injuries or deaths alleged as a result of receiving a COVID-19 vaccine.
The CICP is considered the black hole. And for good reason. I will give you several.
First, the CICP does not allow the petitioner to seek reimbursement of attorney fees not medical expert costs. In the NVICP, these costs are reimbursable even when the petitioner loses as long as the initial claim was shown to have a reasonable basis. These costs can run on average of $35,000 to $75,000 and as high as $300,000. I doubt if many petitioners can afford this cost out of their own pocket. So you are basically on your own. Just you and the Sec’y of HHS.
A second reason is when you submit your petition, copies of your medical records need to be included. And that is all. In the NVICP, generally your attorney will also submit research studies, expert reports to support your claim. Not so in the CICP.
A third reason. If you are one of the very few who have been compensated in the CICP (8%), there is no award for pain & suffering. No award for loss of future wages. There is in the NVICP, up to $250,000 for pain & suffering. Currently, nearly 74% of all claims are compensated in the NVICP, granted the vast majority are influenza vaccines administered to adults claiming shoulder injury or GBS.
A forth reason. There is no judicial appeal process. No higher court to appeal. In the CICP, the appeal process is limited to appealing to the Sec’y of HHS who determined the fate of your petition in the first place.
Renee Gentry, a Washington DC based attorney who practices in the NVICP, was quoted on my podcast Right on Point, with the following: “In the CICP, you have the right to file a petition and lose.” Think about that.
You can listen to the entire podcast with Renee Gentry, Peter Meyers and myself discussing the CICP. The episode will be released Tuesday prior to Thanksgiving. Sorry to spoil your family gathering and Turkey Dinner. But it might be better to listen than participate in a family discussion of politics at the dinner table. Check it out, www.RightOnPoint.online. Sign up for additional podcasts.
A fifth reason. The decisions are not public. In the NVICP, the Federal Court of Claims publishes decisions from the Vaccine Court on a daily basis. In the CICP, there is no public disclosure.
A couple of attorneys and myself have been trying to break down the door and place a spotlight on the decisions. My FOIA’s ranging over the last 8 years have been denied. And I am not asking for names, addresses or personal information. I am seeking the decisions, the countermeasure in question and the alleged injuries. That is all. Soon, we will be marching to Federal Court in hopes of having a judge compel HRSA to turn over these documents.
I think the public has a right to know where their tax dollars are being used. Speaking of tax dollars, the entire compensation fund for the CICP is not a set aside account that is funded by a levy on vaccines sold. It is an appropriation from Congress to HRSA to pay out any claims as needed.
In the 10 years of existence of the CICP, we have been able to determine the total payout is approximately $ 5.7 million for 39 claims representing 8% of all petitions filed. Thanks to Peter Meyers and a response to his FOIA filed earlier this.
The problem facing Congress is how to fund the CICP because of the pending several hundred million doses of COVID-19 to be administered over the course of the next year. Just multiplying the estimated doses by the ratio of adverse events in the clinical trials suggests there will be many, many injuries.
The potential volume of people affected “will be too much for some unfunded compensation program,” said Richard Topping, currently chief legal officer of CareSource Management Group Inc., a Dayton, Ohio-based non-profit that’s one of the nation’s largest Medicaid-managed health care plans. Mr. Topping is a former DOJ attorney that represented the Sec’y of HHS in the NVICP.
Another reason why the CICP is a horrible program. The statute of limitations is only 1 year. 365 days only. And the clock runs fast. In the NVICP, you have 3 years for injury and 2 years for death. How many people will develop autoimmune disorders and other medical ailments that might not manifest itself as an injury until it’s too late? And if you have not determined your medical condition was the result of the COVID-19 vaccine until 9 months later, good luck trying to get ALL of your medical records together and filed with your petition with the short time remaining. I believe that the short SOL is designed to only allow injuries that develop within days or a couple of weeks from vaccination. If you develop an autoimmune disorder such as severe asthma or aggravation of an underlying medical condition, you are probably not going to be able to file a petition on time.
Several years ago, there were many petitions originally filed in the NVICP claiming H1N1 vaccine caused a specific medical condition. The NVICP was so backed up, by the time the HRSA staff processed the petition and forwarded to a Special Master, they could only dismiss because the vaccine was not included in the NVICP. And the Statute of Limitations (SOL) already expired for the petitioner to file in the CICP. That is not right, not just. The petitioner was indeed SOL.
There are some arguments to keep the COVID-19 injury petitions in the CICP. Children have been treated horribly in the NVICP regarding their petitions on a whole, have been dismissed. But the treatment or justice they will receive in the CICP is be a lot harsher.
In FY2019, nearly 94% of all compensated claims were adults. The argument can be made the reason for this was the extreme high number of adult claims filed versus petitions submitted on the behalf of children. The number of children petitions have been decreasing for the last 7 years. My data from tracking petitions in the NVICP show the annual number of petitions on behalf of children filed has been decreasing.
What could account for this? How about our government deciding that children who suffer seizures and early onset of epilepsy from DTaP are no longer compensatable. Teens who suffer debilitating disorders from HPV vaccines are rarely compensatable. Parents who babies die just hours after receiving their 2 month old vaccines can no longer bring a claim of SIDS. The courts are making sure the attorneys are not bring these claims forward and refusing to pay for attorney fees and medical costs. Thus, attorneys are now aggressively screening potential clients and turning many of them away.
To keep it in the CICP will be worse for children AND adults than the treatment their claims will receive in the NVICP. Without public disclosure, we will not know what is happening to children and adults who have been harmed by a COVID-19
It appears that the COVID-19 vaccines are here to stay. And probably follow the same course as the H1N1 vaccine. When first introduced, the CICP handled any claims until it was approved to be added into the trivalent flu vaccine which protect against an influenza A (H1N1) virus, an influenza A (H3N2) virus and one influenza B virus.
So if COVID-19 will become a standard vaccine for the American public, it makes more sense to have the vaccine be added to the NVICP as soon as possible.
The public needs to know what injuries are occurring as the result of any COVID-19 vaccine.
Author of The Vaccine Court – The Dark Truth to America’s Vaccine Injury Compensation Program and The Vaccine Court 2.0 (release date Jan 19, 2021) www.thevaccinecourt.com
Host of Right on Point podcast – a candid legal discussion of the PREP Act, CounterMeasures Injury Comp Program, The Vaccine Court, and legal issues surrounding the COVID-19 vaccine. www.rightonpoint.online