VICP Compensation Increase For Death Could Overwhelm Budget, HHS Says

HHS is concerned that a House proposal to raise the cash compensation for vaccine-related deaths would overburden the vaccine budget.

"The department has real concerns" with the section of the "National Vaccine Injury Compensation Program Improvement Act" (HR 3741) "which would raise the death benefit from $250,000 to $300,000," HHS Office of Special Programs Director William Hobson told a House Government Reform Committee hearing on the bill Sept. 18.

In addition, "the Department has concerns about provisions to increase non-economic award payments significantly in the bill," he said.

"In light of other provisions that will expand the program's coverage and trends toward more claims being filed in the VICP, these provisions collectively may lead to higher vaccine budget costs that are not sustainable."

HR 3741 was introduced Feb. 13 by Reps. Dan Burton (R-Ind.) and Henry Waxman (D-Calif.). Neither HHS nor the Department of Justice support the bill as it is currently drafted.

The bill contains a provision for paying interim attorney's fees for petitioners, which HHS and DoJ both oppose. The Advisory Commission on Childhood Vaccines was split on whether to support the bill's provision requiring VICP to pay interim attorney fees (¹ (Also see "Vaccine Injury Look-Back May Overburden Compensation Fund – AAP’s Noyes" - Pink Sheet, 11 Mar, 2002.), p. 29).

Noting that current law authorizes payment of attorney fees based on a finding that the petition was brought on good faith and that there is a reasonable claim, DoJ Assistant Attorney General Daniel Bryant said in a Sept. 18 letter to Burton that "HR 3741 would represent a significant departure from current practice by authorizing payment of fees before these critical findings are made."

"Furthermore, the processing of interim attorney's fees requests would interfere with resolution of the merits of each petition by diverting scarce time and resources of the parties and the court to a collateral matter."

HHS' Hobson also opposed the bill's lack of a limit on attorney's fees. "Not imposing a cap could result in excessive awards and invite collateral litigation," he told the Government Reform Committee.

ACCV sent a letter to Secretary Thompson Sept. 5 commenting on another VICP reform bill, Sen. Bill Frist's (R-Tenn.) "Improved Vaccine Affordability and Availability Act" (S 2053) and its House companion, HR 5282 (² (Also see "Vaccine Preservative Injury Claims Would Be Covered By VICP In Frist Bill" - Pink Sheet, 1 Apr, 2002.), p. 19).

ACCV suggested creating a provision in the Frist bill that would close a loophole allowing petitioners to file claims against vaccine manufacturers without first filing with the VICP.

The bill should "preclude covered individuals who have not filed a petition with the VICP from filing a civil action for damages in an amount of $1,000 or less against a vaccine administrator or manufacturer in a state or federal court for damages arising from a vaccine-related injury or death," the letter says.

Under the current program, a petitioner can only bring a civil suit against a manufacturer after filing with the program. By only seeking $1,000, the minimum that can be claimed without officially entering the program, petitioners can file derivative suits against manufacturers without officially entering VICP.

"Recently, this has threatened the ability of the VICP to adequately provide liability protection to vaccine manufacturers and administrators," the letter says.

The commission was updated on over 100 lawsuits in which victims claim their injuries were caused by thimerosal-containing vaccines during its Sept. 4 conference call (³ (Also see "Vaccine Injury Look-Back May Overburden Compensation Fund – AAP’s Noyes" - Pink Sheet, 11 Mar, 2002.), p. 12).

The ACCV also supports extending the statute of limitation to six years for both table and non-table injuries. The Burton/Waxman bill would create a 14-year lookback provision, which the ACCV, DoJ, and HHS believe would overwhelm the program.

Although the ACCV supports requiring derivative suits to be filed with the VICP before being filed in court, it would like to see the bill's language clarified. As drafted, however, the bill's language appears "to prohibit civil actions by parents if the child on whose behalf the petition was filed is not compensated under the VICP," the letter says.