Proposed Vaccine Compensation Program Rule Change Impacting Shoulder Injuries Likely to be Withdrawn

 Posted on March 19, 2021 in Vaccine Injuries

On March 17, 2021, Health and Human Services (HHS) published a notice on the Federal Register alerting the public that the proposed rule change previously published on January 21, 2021 changing how cases involving shoulder injuries and vasovagal syncope are handled in the Vaccine Injury Compensation Program (VICP), is likely to be withdrawn following a thirty day comment period for public response ending on April 16, 2021.

The January 2021 rule by HHS would have removed shoulder and vasovagal injuries from the Vaccine Injury Table, requiring injured parties to pursue these injuries through “causation-in-fact” claims which often require the retention of medical experts and very often, an in-person hearing years down the line before a Special Master (Judge) in Washington, D.C. That rule change was initially due to go into effect on February 22, 2021, however, the effective date was pushed back two months until April 23, 2021 following a request by the Biden administration for time to review all administrative actions that occurred during the sunset of the previous administration.

Now, it appears that HHS is moving to withdraw that rule entirely. If that comes to pass, shoulder injuries and vasovagal syncope would continue to be included in the Vaccine Injury Table, allowing the claims to continue to be resolved more efficiently than if they were causation-in-fact cases.

In publishing the March 17, 2021 notice proposing to withdraw the January 2021 rule regarding the Table amendments impacting vasovagal syncope and shoulder injury cases, HHS noted that among other considerations, removing these injuries from the Vaccine Injury Table was likely to have a negative impact on trust in the public health apparatus precisely when the federal government is trying to facilitate a mass vaccination program in response to the Covid-19 pandemic. Managing attorney at the Vaccine Injury Law Project, Ed Kraus, lodged this same criticism of the January 2021 proposed rule change in his public comment to HHS. Mr. Kraus’s letter to HHS can be found in our blog post here.

And for the vaccine injured individual, the proposed withdrawal of that rule is certainly welcome news. If you, or someone you love, has experienced a shoulder injury or vasovagal syncope following a vaccination, please contact us so that we can discuss your options in light of these developments.