President Bush touched off a furious debate over the adequacy of workers’ compensation programs when he announced the Smallpox Vaccination Program to combat bioterrorism on Dec. 13, 2002. Four months after the program was launched, after three workers had died from heart attacks attributed to the smallpox vaccine, Congress finally enacted a new national smallpox compensation program.

The president ordered all military personnel to be vaccinated against smallpox. For civilians, he said:

“We do recommend [smallpox] vaccinations for one other group of Americans that could be on the front lines of a biological attack. We will make the vaccine available on a voluntary basis to medical professionals and emergency personnel and response teams that would be the first on the scene in a smallpox emergency. These teams would immediately provide vaccine and treatment to Americans in a crisis and, to do this job effectively, members of these teams should be protected against the disease.

“I understand that many First Responders will have questions before deciding whether to be vaccinated. We will make sure they have the medical advice they need to make an informed decision. Smallpox is a serious disease and we know that our enemies are trying to inflict serious harm. Yet there’s no evidence that smallpox imminently threatens this country.”[1]

The smallpox vaccine, made from a live virus, called vaccinia, is the most dangerous of all vaccines. It was originally developed by Albert Jenner from cowpox in the 18th century. Smallpox was eradicated worldwide in 1980 and the last case in the United States was in 1949. According to the Centers for Disease Control and Prevention (CDC), for every 1 million people vaccinated, one–two will die, 14–52 will become seriously ill with potentially life-threatening reactions, including eczema vaccinatum, progressive vaccinia (or vaccinia necrosum) or postvaccinal encephalitis.[2]

The U.S. Department of Defense has taken extraordinary precautions to prevent deaths and adverse reactions among military and civilian personnel. The Defense Department’s smallpox vaccination program, of course, is run entirely by the federal government and is amply funded. If any vaccinee, or member of a vaccinee’s household, has any reaction to the smallpox vaccine, the federal government will provide complete medical care and full compensation through the military’s health system (active duty servicemen and women) and the Department of Veterans Affairs (once honorably discharged from the military). The Federal Employees’ Compensation Act (FECA) is available to all other civilian Defense Department personnel (as well as all other federal agencies and members of Congress) and specifically covers all smallpox injuries.[3]

Most civilian First Responders, however, work for local police, fire and public health departments or local hospitals. Unless state workers’ compensation laws or job-based health insurance cover smallpox injuries, they have no coverage for health care and lost income support, which they will need in the event of an adverse reaction to the smallpox vaccine.

Speaking to reporters after the president’s announcement in December, Department of Health and Human Services Secretary Tommy Thompson said:

“They [civilian First Responders] will be able to get compensated, of course, under their own health insurance programs, and most of the individuals in the first category certainly will be people that are covered by health insurance, either by their employer or by their own personal plans.

“Secondly, they will also be covered by the state workers’ compensation laws of the particular state that would pay them compensation. And heaven forbid if somebody dies, they would be able to receive the wrongful death portions of the workers’ compensation law put out by the particular state.”[4]

The secretary’s prediction proved wrong on both counts. First Responders who have health insurance have the same cost-sharing now required by all health insurance plans. Less fortunate First Responders, who figure among the 41 million uninsured Americans, have nothing at all to cover the medical care required to treat smallpox reactions. As for state workers’ compensation, an AFL-CIO survey reveals that only 14 states clearly guarantee coverage of smallpox injuries as of April 2, 2003:

State Workers’ Compensation Coverage of Smallpox Vaccine Program Injuries
Fourteen “Yes” (Alabama, Arizona, Colorado, Idaho, Kentucky, Maine, New Hampshire, New Jersey, North Dakota, Ohio, Texas, Washington State, West Virginia, Wisconsin).

Five “Yes” based on state case law, but no statement of guaranteed coverage available. (California, Georgia, Indiana, Massachusetts, Mississippi).

Nine “No” (Arkansas, Connecticut, Delaware, Florida, Illinois, Maine, Michigan, Missouri, Montana).

Eight “No” for some workers’ compensation insurers in the state (Illinois, New York, Nebraska, New Mexico, Oklahoma, Pennsylvania, Tennessee, Virginia).

Twelve states are still reviewing smallpox coverage under workers’ compensation (Alaska, Iowa, Maryland, Maine, Kansas, Louisiana, North Carolina, Oregon, Rhode Island, Vermont, Virginia, Wyoming).

When the Bush administration first began planning for the president’s Smallpox Vaccination Program in June 2002, key safety and health staffers from the American Nurses Association, SEIU and AFSCME warned that without full federal funding for the program, cash-strapped state and local governments would be unable to match the Defense Department’s comprehensive prevention and screening program. Moreover, they said, state workers’ compensation laws would not cover vaccine injuries. Their predictions have, unfortunately, come true. The president asked that 450,00 First Responders take the vaccine by Feb. 24, 2003. Yet, as of March 28 there were only 29,584 First Responders vaccinated, less than 7 percent of the administration’s goal.

At the same time, the CDC reported two deaths among its official tally of 50 adverse events (see chart) and one death was reported in the Defense Department’s Smallpox Program. All three deaths were publicized widely.

One of the deaths was a nurse from Salisbury, Md., a state that has yet to decide whether it will cover smallpox under its workers’ compensation law.

Asked at the Senate Health, Education, Labor and Pensions Committee hearing on smallpox why the administration had refused to follow its own Institute of Medicine recommendations calling for a compensation program for smallpox First Responders, Dr. Julie Gerberding, CDC director, said state workers’ compensation laws were sufficient to do the job. In fact, as surveys by the Association of State and Territorial Health Officials (ASTHO) and the AFL-CIO showed, only 14 states guarantee their workers’ compensation programs will cover smallpox injuries.[6] The American Insurance Association (AIA) noted that the smallpox program was a voluntary program—no one required workers to get the smallpox vaccine as a part of their job—therefore, the AIA reasoned, smallpox would not be covered under workers’ compensation policies.[7]

Boston University professor Leslie Boden, one of the nation’s leading experts on workers’ compensation, noted there were 50 different standards and laws, each with different waiting periods and benefit levels. Moreover, he noted the example of the federal Energy Employees Occupational Injury Compensation Program Act (EEOICPA) demonstrated that state workers’ compensation laws were simply not up to the job of compensating workers on a timely basis. Since EEOICPA was enacted in 2000 more than 15,000 state workers’ compensation claims have remained backlogged at the Department of Energy and the National Institute of Occupational Safety and Health (NIOSH). As if that weren’t enough, Boden noted that state workers’ compensation laws all contain waiting periods of three–seven days, creating a significant barrier for smallpox First Responders.

Barely one month after the start of the Smallpox Vaccination Program—with fewer than 5, 000 First Responders vaccinated, the Bush administration bowed to circumstances and asked Congress to enact a federal compensation program. Yet the most remarkable feature in the administration’s proposal was its reliance upon state workers’ compensation as the primary source of coverage for smallpox injuries.

The Bush smallpox compensation plan is based upon a little-known law, the Public Safety Officers’ Benefits (PSOB) program, enacted in 1968 to provide supplemental benefits to police and firefighters killed or permanently disabled in the line of duty. Police and firefighters, of course, have extensive benefits under state and local laws to compensate them and their families in the event of death or injury. First Responders in the Smallpox Vaccination Program, however, have no other compensation program to rely upon. Consequently, as proposed by the administration, PSOB benefits for smallpox First Responders would be their sole source of medical care and compensation.

After months of haggling, Sen. Edward Kennedy announced an agreement with the White House that was enacted by Congress the next day. Following are the key elements of the Smallpox Emergency Personnel Protection Act of 2003:

Eligible individuals include health care workers, law enforcement officers, firefighters, security personnel, emergency medical personnel and other public safety personnel who have volunteered for and received the smallpox vaccination as part of a state smallpox emergency response plan or any individual who is accidentally injured by a smallpox vaccination given to a First Responder.

Covered injuries are an injury, disability, illness, condition or death (other than a minor injury such as minor scarring or minor local reaction) resulting from the smallpox vaccine, including cases of contact vaccinations during the period of Jan. 24, 2003– Feb. 24, 2004, as declared by the secretary of Health and Human Services.

Benefits are secondary to any available workers’ compensation, health insurance or other disability insurance benefits and may be received upon application to the secretary of Health and Human Services, who will use a vaccine injury table to decide whether the injury is due to the smallpox vaccine. Benefits include:

(a) All reasonable and necessary medical care to treat the injury;

(b) Death benefits of either a lump sum payment of $262,100 or, if there are children under the age of 18, up to $50,000 per year;

(c) Permanent and total disability benefits equal to 66 2/3 percent of wages (75 percent in the case of dependents) up to $50,000 per year for life; and

(d) Partial disability benefits of up to $262,100, payable at the same rate as permanent disability benefits and capped annually at $50,000 per year.

Appropriations: Congress appropriated $105 million for states to run the Smallpox Vaccination Program and $42 million for the smallpox compensation program.