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Newly Passed Federal Smallpox Emergency Personnel Act

A Summary of Key Provisions

Since December 2002, when President Bush requested that a half million front line hospital workers volunteer to be vaccinated against smallpox, SEIU members have led the charge to make the plan safer for workers and the public.

Congress responded to the alarm raised by caregivers nationwide and on April 11, 2003 passed the Smallpox Emergency Personnel Act to provide compensation to health care workers, their families and patients harmed by the vaccine. The law mainly defines who may receive—and sets limits on—compensation.The key points of the federal legislation are outlined below.

General Provisions for States and Localities

The law tells states and localities that their smallpox vaccination plans must follow CDC guidelines and provide:

• Education: information about the voluntary nature of the program, about the vaccine and its risks, and about the availability of compensation for injury.
  
• Medical screening.
  
• Medical Surveillance: monitoring of the inoculation and referral for any needed treatment for adverse reactions.

A separate FY 2003 emergency supplemental appropriations bill, signed by the President, includes $105 million for states to conduct smallpox vaccination programs.

Federal Compensation Provisions for Individuals

A no-fault compensation fund will be established to help individuals who may be injured by the smallpox vaccine during what is called the Declaration period, January 24, 2003 through January 24, 2004. A $42 million pool has been approved for this purpose.

Who is Covered for Lost Income Compensation

Volunteer  vaccinees who are members of a smallpox emergency response team, including:

• health care workers, 
  
• emergency medical personnel,
  
• law enforcement officers, firefighters and other first responders.

Accidental  vaccinees:

• a person who contracts vaccinia before February 24, 2004, from a vaccinee (via inadvertent transfer) or from someone who was accidentally inoculated.

What is Covered
The Secretary of Health and Human Services (HHS) is to establish an injury table identifying injuries presumed to result from the vaccine. For other injuries, the individual must show by a preponderance of evidence that the vaccine caused their injury and is responsible for its severity.

Categories of Compensation

• Death: Families of people who are killed by the vaccine and die with no dependents would get a lump sum payment of $262,000, an amount based on an existing compensation program for police and firefighters. A surviving spouse with children could choose between a lump sum payment or 75% of the victim’s income up to $50,000 a year to make up for the deceased’s lost wages. Those payments would continue until the youngest child reaches age 18.
  
• Permanent and Total Disability: Those totally or permanently disabled would get 2/3 of their pay (75% if they have dependents) up to $50,000 a year for lost wages for the rest of their lives, with no lifetime cap.
  
• Temporary Disability: Those temporarily disabled would get 2/3 of their pay (75% if they have dependents) up to a maximum of $50,000 annually, with a lifetime cap equal to the death benefit (currently $262,000).

Lost Work Time Coverage
Five day waiting period for coverage unless out of work 10 days or more; those out of work for fewer than five days get no compensation; those out of work five to nine days get one to four days compensation; those who miss 10 days or more of work will be paid for all missed days.

Limitations on Compensation

• Benefits payable are secondary to other recoveries for lost wages (for example, worker’s compensation or private insurance). Compensation under this law will only cover the difference between what is available from other sources and the maximum available under law (for example, if other compensation from other sources equals or exceeds what is available under this law, the individual is not entitled to receive compensation under this law.)
  
• Compensation is not cumulative. If someone who receives compensation for temporary injury subsequently dies from that injury, the amount of compensation received is deducted from amount available under death benefit.
  
• Payments are subject to availability of Federal appropriation of the money. The law authorizes appropriations for fiscal years 2003 through 2007.
  
• Medicare beneficiaries are not eligible for compensation. Once someone reaches 65, he or she is no longer eligible to receive compensation.

Medical Benefits

• Medical services, appliances and supplies prescribed by a doctor and deemed reasonable and necessary to treat covered injury are covered.
  
• Medical benefits payable are secondary to payments made by other insurance or reimbursement system.

Procedure for Filing Claims

Volunteer vaccinee: 

• Claim must be filed within one year of administration of the vaccine.

Accidental vaccinee:

• Claim must be filed within two years of first symptom or manifestation of onset of injury.

The law provides for non-exclusive remedy, meaning that those dissatisfied with their award under this program may sue government under the Federal Tort Claims Act once all other remedies under this law are exhausted. The law precludes liability directly against vaccine manufacturer, administrator or individual (and his or her employer) who transmits vaccinia.

For More Information

SEIU urges you to learn all you can about the smallpox vaccine and its risks.

For information about the bill, go to Thomas (online legislative information provided by the Library of Congress) and search for H.R. 1770 ENR, or click here for the bill's full text (pdf). In addition, SEIU has developed a number of additional educational materials, available here on the SEIU.org site.  

The decision whether or not to be vaccinated is an individual one, but we hope that this fact sheet combined with information available here on SEIU’s Web site will give you the guidance you need.