In brief: Recently, I posted about the fact that people injured by a COVID vaccine cannot sue the manufacturer, but those suffering a serious injury (or death) may have a limited claims process under the “Countermeasures Injury Compensation Program” (CICP) for related medical expenses and lost income. The limitations of this program—like any federal agency claim—will be infuriating to anyone who has actually suffered such an injury or illness. But, it is still a possible source of compensation that shouldn’t be dismissed in certain egregious cases.
So, this Part 2 of my post explains A) how to file such a claim with the U.S. Department of Health and Human Services (the procedure) and B) the elements that must be proven by a Claimant (the proof burden). After reviewing this procedure (and because I have some experience with administrative claims disappearing into the unaccountable morass of federal agencies), I have resorted to a little gratuitous sarcasm for your reading pleasure. This reflects the realistic frustrations of dealing with federal agency claims myself as a lawyer, so prepare yourself….
A. How do you file a claim under the CICP?
As I noted in the first post, these claims must be filed within one year of the date of injury—a short limitation period that is designed solely to cut off any pathway to the fund. So, don’t wait around to file! A Claimant must either be a person injured by the vaccine, or that person’s representative (such as a lawyer), or if the injured person dies, an Administrator of that person’s estate or his Survivor (such as a spouse or partner).
The initial filing to stop the limitations clock is fairly easy. Claimants can file this administrative claim without a lawyer, by visiting this site: https://www.hrsa.gov/cicp/filing-benefits. The procedure sounds simple. A Claimant submits a “Request Package” to the CICP. CICP’s “medical staff” review the package to determine eligibility. This turns on whether “a covered injury was sustained.” It is the “Covered Injury” that makes the CICP claim so difficult and, probably, a bit of an illusion in practice. (See Part B below).
IF a Claimant clears this hurdle and the CICP agrees that there is a “Covered Injury” (a big “IF”), the agency then asks a Claimant to submit evidence to determine any compensation. If not, the CICP rejects the claim as not covered, which they will probably do in most cases, in a dull but secretly gleeful letter. As with most agency decisions, a rejected Claimant may ask for an internal reconsideration by the agency. When the CICP receives that request, an “independent” panel is supposed to review that decision, make a recommendation back to the agency, which makes a final determination. But there is no appeal of any decision made on reconsideration, because the last thing a federal agency wants is to be held accountable in a court run by rational humans.
The website above provides the necessary forms as well as thorough instructions on how to fill out the forms. Typical of the federal government, the HHS does not accept emailed or uploaded forms, only good old U.S. mail. Technically, you can also use a “private courier service,” whatever that may mean in the 21st Century. I envision someone stumbling through their front door on a horse, covered with dust from the trail, clutching your weather-beaten letter and collapsing at the security desk. (But yes, it probably means UPS or FedEx.)
B. How to prove a “Covered Injury” (and why you probably can’t)
The evidence you must put together to meet the burdens is deceptively difficult and will involve time-consuming efforts to get your doctors to help you in ways that cause them real inconvenience without any pay. So while the claim itself is free, most people should really only attempt such a claim if your after-insurance obligations for medical bills and actual lost wages from missed work are worth thousands of dollars, and if their doctors are supportive and willing to help. As a practical matter in the case of a COVID vaccine causing the injury or illness, it is likely that Claimants will not recover without at least providing both medical records and one or more doctor’s specific opinions arguing and explaining why you have covered injuries and treatment, in detail on federal forms. And even that may not be good enough.
This is because a “Covered Injury” is defined as “serious injury, or a death,” determined by the agency to meet one of two categories. The first is when an injury or health complication satisfies the agency’s own requirements from its “covered countermeasures injury table,” which is apparently not published to the rest of the world. In theory, the agency will have a document that presumes certain, well-established injuries or illnesses are the direct result of the vaccine. For instance, if the CICP has a document confirming that the agency agrees that the vaccine often causes a person’s ring finger to fall off three hours after injection, and that is exactly what happened to you, then it is “presumed” to be a Covered Injury. But even if such a table exists setting forth common illnesses or injuries—and I have my doubts that it does—the agency does not have to follow that presumption anyway. Its unknown “medical staff” can still determine that there is other evidence suggesting a different cause of your illness. So, that is probably not a practical pathway.
The second and more likely pathway is that a Claimant presents such specific, medical evidence that it convinces the agency that the Claimant’s health condition “is the direct result of the administration or use of a” covered vaccine. At minimum, a Claimant will probably have to have treating doctors provide specific, written opinions that the vaccine itself directly caused a diagnosed injury and resulting loss of work, and explain why. And that in itself will not satisfy the agency. Its own published guidance warns: “Such proof must be based on compelling, reliable, valid, medical and scientific evidence.” This standard of proof is much higher than the evidence of causation we must prove in court, which is typically preponderance of the evidence, or greater than 50% likelihood. Basically, the agency hires medical practitioners whose main qualification is to be highly skeptical of any claim that a vaccine results in injury, and unless your evidence is based upon well-established and undeniable consensus in the medical community, they can say no.
For instance, the site notes that “Temporal association between receipt of the countermeasure and onset of the injury is not sufficient by itself to prove that the countermeasure caused the injury.” What this means is that even if you became seriously ill or died immediately after taking a covered vaccine, that does not suffice to imply that the vaccine caused the injury. Instead, you “may need to submit sufficient relevant medical documentation or scientific evidence (such as studies published in peer reviewed medical literature).” So, even if your doctor writes an essay explaining why it is certain that your injuries, illness, or death was caused by a covered vaccine, the CICP may still deny the claim unless there are medical journals confirming that most medical doctors agree with him. For a new vaccine like COVID, that is very unlikely to exist for a while, if ever.
And, if the CICP claims process functions like most administrative programs, it will be frustratingly slow and involve a distant, nameless bureaucrat moving at a glacier’s pace to review and process your claim. In my experience, such people have no functional accountability for falling short of that glacial pace, or even processing the claim at all. More likely, you will hear nothing for a long time. Then, when you think your paper form has probably been lost or forgotten—or that your private courier’s horse died on the way to deliver it—you will receive a vague, three-line letter saying your evidence is insufficient, without explanation of the deficiency.
While I do not paint a rosy picture of this CICP process, it does exist. And it is currently the only pathway to recover any compensation for a serious injury or death from a covered vaccine. As result, if you or someone you love does suffer such an injury or death, you should certainly contact a lawyer to evaluate that claim and determine if it is worth a try. In the right cases, with the right supporting evidence, it is at least possible that the CICP could partially compensate you.