History of the Vaccine Injury Compensation Program

On October 1, 1988, the National Childhood Vaccine Injury Act[1] of 1986 (42 U.S.C. §§ 300aa-1 to 300aa-34) created the National Vaccine Injury Compensation Program (VICP). The VICP was established to ensure that an adequate number of vaccines were produced, that vaccine costs would stabilize, and that an accessible and efficient forum for individuals found to be injured by certain vaccines was established to remedy those injuries.  The VICP is a no-fault alternative to the traditional tort system for resolving vaccine injury claims that provides compensation to people found to be injured by certain vaccines.  There are three federal government offices that play a role in the VICP: the U.S. Department of Health and Human Services (HHS), the U.S. Department of Justice (DOJ), and the U.S. Court of Federal Claims (the Court that adjudicates the claims).
 
The National Vaccine Injury Compensation Program is funded by the Vaccine Injury Compensation Trust Fund and it compensates all vaccine-related injuries or deaths for covered vaccines administered after October 1, 1988.  The Trust Fund is funded by a $0.75 excise tax on all vaccines that are recommended by the Centers for Disease Control and Prevention for routine administration to children.  The excise tax imposed is based on the number of diseases that the vaccine is designed to inoculate against.  For example, the measles, mumps and rubella vaccine, which is manufactured and administered to inoculate against all three diseases, is taxed at $2.25 per vaccine.  Each influenza vaccine is taxed at $0.75 per dose.  This tax is collected by the Department of the Treasury, which also manages the Trust Fund’s investments of the excise tax.

Which Vaccines Are Covered by the Vaccine Injury Compensation Program?

The Vaccine Injury Table is your one stop location to determine which vaccines are covered by the Vaccine Injury Compensation Program.  If a vaccine is not contained on the Vaccine Injury Table, then an injury that is allegedly caused by the vaccine is ineligible for compensation in the VICP.  Vaccines that are listed on the Vaccine Injury Table are:

  • tetanus toxoid vaccines (DTaP, DTP, DT, Td, or TT),
  • pertussis vaccines (DTP, DTaP, P, DTP-Hib),
  • Measles, mumps and rubella vaccines (MMR or any variants),
  • polio virus vaccine,
  • Hepatitis A,
  • Hepatitis B,
  • Hemophilus influenza type b (Hib),
  • Varicella,
  • rotavirus,
  • pneumococcal conjugate vaccines,
  • seasonal influenza,
  • meningococcal vaccines, and
  • human papillomavirus (HPV) vaccines. 

The Vaccine Injury Table can be found here: https://www.hrsa.gov/sites/default/files/vaccinecompensation/vaccineinjurytable.pdf


 Statute of Limitations

To be eligible for compensation, cases must be filed within the following periods:

For injury claims: within 3 years after the first symptom or manifestation of onset or of the significant aggravation of the injury; or

For death claims: within 2 years of the death and within 4 years of the first symptom or manifestation of onset or of the significant aggravation of the injury from which the death resulted.

The statute of limitations can never be tolled, except for one very limited circumstance.  Unfortunately, there is no discovery rule in the VICP to toll the statute of limitations, and there is no minor’s tolling statute. 

Recent, yet time sensitive exception to this rule:

On July 29, 2015, the Secretary of Health and Human Services published in the Federal Register a Notice of Proposed Rulemaking to amend the regulations governing the National Vaccine Injury Compensation Program by proposing revisions to the Vaccine Injury Table.  The rule change, which took effect on February 21, 2017, states that anyone who receives the seasonal influenza vaccine and experiences an onset of GBS between 3 and 42 days thereafter, will be given the presumption of causation in the NVICP.  In addition, anyone who suffers a SIRVA injury within 48 hours of receipt of any vaccine on the Vaccine Injury Table, will also be given the presumption of causation.  The full text of the Federal Register Rule Change can be found here: https://www.gpo.gov/fdsys/pkg/FR-2017-01-19/pdf/2017-00701.pdf

The rule change effectively reopens the statute of limitations period for cases that were previously time-barred.  The provision that “an individual who may be eligible to file a petition based on the revised Table may file the petition for compensation not later than 2 years after the effective date of the revision if the alleged injury or death occurred not more than 8 years before the effective date of the revision…” effectively means the following:

  • any case where the client developed GBS between 3 and 42 days after the influenza vaccine.
  • any case where the client developed a shoulder injury (SIRVA) within 48 hours of any vaccination on the Vaccine Injury Table that occurred after March 21, 2009, are timely brought if they are filed before March 21, 2019.
  • These exceptions do not apply to cases that were already filed and adjudicated on the merits.

 The Main Players in the Vaccine Injury Compensation Program (VICP)

There are several main players that operate in the VICP.  First, the injured party is known as the Petitioner, who is represented by a private attorney who is admitted to the U.S. Court of Federal Claims in Washington, D.C.  Most of these attorneys are members of the Vaccine Injured Petitioners (VIP) Bar Association.  It is highly recommended to have a VIP Bar Association member handle your vaccine case.

Second, the U.S. Department of Health and Human Services (HHS) is the entity that defends all vaccine-related claims and in the VICP, is more commonly called, the “Respondent..  HHS is represented by attorneys from the U.S. Department of Justice (DOJ), civil trial division. 
 
Finally, all claims are handled in the United States Court of Federal Claims in Washington, D.C., not in the state civil courts.  The Court is composed of eight (8) special masters, who collectively form the Office of Special Masters (OSM).  One of the special masters serves as the “chief special master” of the VICP.  The special master assigned to the case is responsible for the entire adjudication, both facts and law, of the case.  Their website is located here: https://www.uscfc.uscourts.gov/


[1] 42 U.S.C. §§ 300aa-1 to 300aa-34

 

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