COVID-19: Vaccine Injury Compensation Status

On May 5, 2023, the World Health Organization declared an end to the global health emergency caused by the SARS-CoV-2 virus, known as COVID-19. While the emergency has, in many ways, waned, the virus and the need for COVID-19 vaccines continue. As such, questions also remain about the availability of compensation for injuries caused by routine administration of COVID-19 vaccines.

It’s hard to believe that it has been more than three years since COVID-19 was declared an international public health concern on January 30, 2020, and then a global pandemic on March 11, 2020. During that time, I received multiple calls and inquiries, initially looking for information or advice about the virus itself, and later regarding the vaccines that were produced to attenuate the effects of COVID-19 infections.

Interestingly, the vaccines which were developed and subsequently administered to combat COVID-19 here in the U.S. are not on the list of the 16 vaccines covered under the National Vaccine Injury Compensation Program (NVICP), where I focus my legal practice. They are, however, covered under the Countermeasures Injury Compensation Program (CICP), an administrative program where individuals who are hurt by one of the listed countermeasures, not all of which are vaccines, may be able to obtain compensation.

COVID-19 Vaccine Coverage Under the CICP

Because COVID-19 was deemed a public health emergency in the U.S., under the Public Readiness and Emergency Preparedness Act (PREP), COVID vaccines became eligible for and ultimately covered under the CICP. While the CICP has some similarities to the NVICP, there are very significant differences.

The CICP is an administrative program regulated by the Health Resources and Services Administration (HRSA) division of the Department of Health and Human Services (HHS). Claims under the CICP must be made within one year of the date that the covered countermeasure was administered and must involve a death or serious injury that resulted from receipt of the specific countermeasure. A CICP claimant must show, through compelling medical or scientific evidence, that their injury was caused by the countermeasure.

Unlike NVICP matters, where a petition is filed against the Secretary of HHS in the U.S. Court of Federal Claims and adjudicated by a Special Master, the HRSA makes the decision regarding compensation in CICP matters, and there is no ability to appeal that decision. There are also no provisions to cover the costs for an injured person to retain an attorney.  Moreover, compensation awards for countermeasure claims do not provide for pain and suffering, being limited exclusively to medical expenses and lost wages or a death benefit.

On May 11, 2023, COVID vaccine coverage was scheduled to expire under the CICP, but a recent amendment to the Federal Register submitted by the Secretary of HHS has extended that deadline through December 31, 2024. Whether COVID vaccines remain in the CICP will depend on further action by the Secretary of HHS.

Will the NVICP Cover COVID-19 Vaccines?

Since the Centers for Disease Control and Prevention (CDC) has recommended COVID vaccines for routine administration to children and pregnant women, it appears that COVID vaccines could fall under the auspices of the NVICP.

To further the process for COVID vaccine inclusion in the NVICP, Congress must act to assess an excise tax on the COVID vaccines to aid in funding that program and the Secretary of HHS must publish notification adding COVID vaccines to the NVICP's vaccine injury table.

If COVID vaccines were to be included in the NVICP, a person claiming injury would have the added benefits of being represented by counsel and the availability for additional judicial review of adverse decisions. Additionally, in the settling of a favorable outcome, it’s expected that they would also receive compensation for pain, suffering, medical expenses, and lost wages.

Seeing as the CDC only recently recommended COVID vaccines for routine administration to children and pregnant women in the first quarter of 2023, it may be some time before the Secretary of HHS exercises discretion to publish notification or Congress decides to assess the excise tax.