On July 29, 2015, the Secretary of Health and Human Services published in the Federal Register a Notice of Proposed Rule Making proposing to amend the Vaccine Injury Table (42 U.S. Code §300aa-14) by regulation. In order to receive an award under the National Vaccine Injury Compensation Program, a petitioner must establish a vaccine-related injury or death, either by proving that a vaccine actually caused or significantly aggravated an injury (otherwise known as “causation-in-fact”) or by demonstrating the occurrence of what has been deemed a “Table Injury”. To establish a “Table Injury”, a petitioner must show that the vaccine recipient suffered an injury of the type enumerated in the Vaccine Injury Table corresponding to the vaccination in questions and that the onset of the injury took place within the time period specified. If a petitioner can establish a Table Injury, the injury is presumed to have been caused by the vaccination.
In summary, based on scientific evidence, the Secretary of Health and Human Services has proposed the following injuries be added to the Vaccine Injury Table:
1. Measles-mumps-rubella (MMR) vaccine causing measles inclusion body encephalitis;
2. Varicella vaccine causing vaccine disseminated varicella infection (widespread chickenpox rash
shortly after vaccination);
3. Varicella vaccine causing disseminated varicella infection with subsequent infection resulting in
pneumonia, meningitis, or hepatitis in individuals with demonstrated immunodeficiencies;
4. Varicella vaccine causing vaccine strain viral reactivation;
5. Varicella vaccine causing vaccine strain viral reactivation with subsequent infection resulting in
meningitis or encephalitis;
6. Varicella vaccine causing anaphylaxis;
7. Influenza vaccine causing anaphylaxis;
8. Meningococcal vaccine causing anaphylaxis;
9. Human papillomavirus vaccine causing anaphylaxis;
10. Injection of any covered vaccine causing shoulder injury related to vaccine administration
11. Injection of any covered vaccine causing syncope.
As with the other injuries already included in the Vaccine Injury Table, the Act requires that an alleged vaccine injury continue for at least six (6) months unless the injury results in surgical intervention or death. These amendments will have the effect of making it easier for a potential petitioner with the aforementioned injuries to take advantage of the presumption that the vaccine caused the injury and not have to prove causation in fact to be entitled to compensation.
A Notice of Proposed Rulemaking is the official document that announces and explains the agency’s plan and all proposed rules must be published in the Federal Registry to notify the public and to give them an opportunity to submit comments. In this instance, the Secretary of Health and Human Services is seeking public comment on the proposed revisions and written comment must be submitted on or before January 25, 2016. These proposed amendments will have effect only for petitions for compensation under the National Vaccine Injury Compensation Program filed after the final regulations become effective. To view the Notice of Proposed Rulemaking in its entirety and/or to find information on how to submit comments regarding the proposed amendments, visit https://www.federalregister.gov/articles/2015/07/29/2015-17503/national-vaccine-injury-compensation-program-revisions-to-the-vaccine-injury-table