Part 3 - Things to consider while moving COVID vax into NVICP

In a series of articles I examine the extreme deficiencies of the Counter Measures Injury Compensation Program (CICP) and the difficulty but necessary transition of the COVID-19 vaccine to the National Vaccine Injury Compensation Program (NVICP).

Most of these will have to be statutory changes requiring Congress to modify or amend the Act of 1986.

1. The NVICP does not allow vaccines that are not fully licensed for routine administration to children and pregnant mothers. So what to do with everyone who received the EUA version from Pfizer, Moderna and J&J? At some point in the future, these manufacturers will start producing the fully licensed and approve version of their toxic cocktail. It is simply not fair in any legal sense of the word to allow those who have been injured by the EUA version to remain in the CICP and not be allowed to prosecute their legitimate claim in the NVICP. Congress can correct this imbalance by simply amending the statute to all the EUA versions of the Cinderella vaccines. But does this open the door to allow future vaccines with an EUA status to be automatically be transferred out of the CICP and into the NVICP? I would think that Pharma might not like that.

2. A vaccine injury profile of each version of the COVID-19 vaccines will have to be developed scientifically. This will allow a Vaccine Table of known injuries to be included with the vaccines. By providing a table of injuries, this gives injured persons a fighting chance and prevents all petitions from automatically being forced to prove causation. In the NVICP, there are several known injuries for each covered vaccine. The most common injury types are GBS and shoulder injury. If a petitioner can show via medical records, doctor diagnosis they suffer a table injury within medically acceptable timeframe, the petitioner is nearly home with an entitlement decision. The process of creating a Vaccine Injury Table is not for the faint of heart. It will take time, maybe a year or longer to reach a consensus. I would suggest the Sec’ of HHS start reviewing VAERS. She can plainly see that blood clots, myocarditis, Bell’s Palsy, peripheral neuropathy and death are very common injuries.

3. The NVICP has historically suffered and continues to have unacceptable backlog in petitions that have been filed. The current backlog is over 4,000 petitions. The current backlog in the CICP is 7,500. Waiting for medical review by HRSA medical staff, the need to expand the Office of Special Masters from the current 8 positions to at least 10 if not more plus associated staff and clerks to help adjudicate petitions. Many of the complex flu or other vaccine cases that require medical testimony via hearings are scheduled 2 to 3 years out on the calendar. Adding Special Masters can only be done by Congress. Amending the current statute from 8 to 10 or greater needs to be done quickly. I would suggest a minimum of 12. Then appropriations for the Court’s budget needs to follow. Another delay is that it will take maybe 1 year or longer to properly train a new Special Master to handle the large docket of COVID-19 cases that will flood the Court.

4. Speaking of budget funding, Department of Justice Civil Torts division attorneys who litigate cases in the NVICP, they represent and defend the federal government’s position. Specifically, they defend the Secretary of HHS. Most of these attorneys are new to their position. Some are seasoned professionals. I believe that many use a short term position at DOJ in the NVICP as a resume builder. Don’t blame them. The pay is horrible and the hours are worse. But don’t think I lose sleep over their situation. I don’t. Several of the alumni of this department are pond scum. But Congress will need to address budget concerns. Currently, they do receive an annual appropriation out of the Vaccine Injury Trust Fund of over $11 million. Does not cover their annual budget but they take it.

5. The same argument can be made for HRSA, the sub-agency of HHS, that administers the NVICP. For every petition for compensation sent in, HRSA receives the petition, and starts the process. They communicate with the Office of Special Masters, the petitioners and their legal counsel, and DOJ attorneys. Congress will have to address their budget as well. And yes, they do receive an annual appropriation as well from the Trust Fund of over $11 million.

6. Every vaccine that is covered in the NVICP has a tax or levy attached to the sale of the vaccine. The current funding is $0.75 per antigen. So the MMR vaccine contributes $2.25. The money is submitted monthly by the manufacturers and sent directly to the US Treasury Department. The Treasury then forwards the proceeds to the Trust Fund less a “handling fee”, which in turn, the Fund pays out damage awards, atty fees and medical expert costs along with the annual appropriation to HRSA, The Courts, and DOJ. The current balance of the Trust is approx $4.2 billion with $4.7 billion in outlays.

7. Congress will have to create a tax or levy for any COVID-19 vaccine that is moved into NVICP. Currently the COVID vaccine is provided free of cost by the federal government to hospitals, pharmacies, clinics and doctors. Eventually, I can see a scenario whereas the federal government exits the providing the vaccine and manufacturers begin selling directly to health care providers. Thus the insurance industry will want a say in how much to sell the vaccine for, co-pays, etc. That is another mess upon itself.

8. It is entirely possible that if Congress attaches a tax on a COVID vaccine, the amount might be increased to $1.00 or more due to the tremendous number of credible claims to be filed. Most of the reported injuries are severe and would require long term and expensive care.

9. Congress will have to address the current Statute of Limitations (SOL), which is 1 year from the date of administration for COVID-19 vaccines that are under the CICP jurisdiction. The SOL for NVICP is 3 years from the first onset of symptoms or 2 years for death. It would be tempting for Congress to extend SOL for all vaccines in the NVICP to 5 to 8 years but I seriously doubt that Pharma would allow that to happen.

10. Normally when a vaccine is added to the NVICP, there is a look back period offered (I would suggest when first clinical trial started) and a filing period (usually 24 months) for those who were injured a few years longer than the SOL. Because this entire process could take a few years to implement, it would be fair to those who were injured in the first rollout of the vaccine.

Whether Congress or the Secretary of HHS makes the move to transfer the litigation of injuries and death claims from the CICP to the NVICP, there are many steps to consider, a lengthy process of 2 or more years to get it done completely. Many who have been injured will continue to suffer and that is a national embarrassment and “a complete failure to plan” acknowledgment. BTW that is the working sub-title for my next book on The PREP Act, The CICP and a global failure to address COVID vaccine injuries.

Next up in Part 4. An analysis the current legislation introduced in Congress and how it will address these issues.

Keep learning, keep challenging yourself and always, always question authority