[Congressional Record Volume 149, Number 51 (Monday, March 31, 2003)]
[House]
[Pages H2478-H2494]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SMALLPOX EMERGENCY PERSONNEL PROTECTION ACT OF 2003
Mr. TAUZIN. Mr. Speaker, I move to suspend the rules and pass the
bill (H.R. 1463) to provide benefits for certain individuals with
injuries resulting from administration of a smallpox vaccine, and for
other purposes.
The Clerk read as follows:
H.R. 1463
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Smallpox Emergency Personnel
Protection Act of 2003''.
SEC. 2. SMALLPOX EMERGENCY PERSONNEL PROTECTION.
Title II of the Public Health Service Act (42 U.S.C. 202 et
seq.) is amended by adding at the end the following part:
``Part C--Smallpox Emergency Personnel Protection
``SEC. 261. DEFINITIONS.
``For purposes of this part:
``(1) Vaccine.--The term `vaccine' or `smallpox vaccine'
means vaccinia (smallpox) vaccines, including the Dryvax
vaccine.
``(2) Covered individual.--The term `covered individual'
means an individual--
``(A) who is a health care worker, law enforcement officer,
firefighter, security personnel, emergency medical personnel,
other public safety personnel, or support personnel for such
occupational specialities;
``(B) who is or will be functioning in a role identified in
a State, local, or Department of Health and Human Services
smallpox emergency response plan approved by the Secretary;
and
``(C) to whom a vaccine is administered pursuant to such
approved plan--
``(i) during the effective period of the Declaration
(including the portion of such period before the enactment of
this part); and
``(ii) not later than the latest of--
``(I) 180 days after the effective date of the initial
interim final regulations implementing this part;
``(II) 120 days after becoming an individual in an
occupation described in subparagraph (A); or
``(III) 120 days after becoming an individual identified as
a member of a smallpox emergency response plan described in
subparagraph (B).
``(3) Covered injury.--The term `covered injury' means an
injury, disability, illness, condition, or death (other than
a minor injury such as minor scarring or minor local
reaction) determined, pursuant to the procedures established
under section 262, to have been sustained by an individual as
the direct result of--
``(A) administration to the individual of a vaccine during
the effective period of the Declaration; or
``(B) accidental vaccinia inoculation of the individual in
circumstances in which--
``(i) the vaccinia is contracted during the effective
period of the Declaration or within 30 days after the end of
such period;
``(ii) smallpox vaccine has not been administered to the
individual; and
``(iii) the individual has resided with, or has been in
contact with, an individual who is (or who was accidentally
inoculated by) a covered individual.
``(4) Declaration.--The term `Declaration' means the
Declaration Regarding Administration of Smallpox
Countermeasures issued by the Secretary on January 24, 2003,
and published in the Federal Register on January 28, 2003.
``(5) Effective period of the declaration.--The term
`effective period of the Declaration' means the effective
period specified in the Declaration, unless extended by the
Secretary.
``(6) Eligible individual.--The term `eligible individual'
means an individual who is (as determined in accordance with
section 262)--
``(A) a covered individual who sustains a covered injury in
the manner described in paragraph (3)(A); or
``(B) an individual who sustains a covered injury in the
manner described in paragraph (3)(B).
``(7) Smallpox emergency response plan.--The term `smallpox
emergency response plan' or `plan' means a response plan
detailing actions to be taken in preparation for a possible
smallpox-related emergency during the period prior to the
identification of an active case of smallpox either within or
outside the United States.
``SEC. 262. DETERMINATION OF ELIGIBILITY AND BENEFITS.
``(a) In General.--The Secretary shall establish procedures
for determining, as applicable with respect to an
individual--
``(1) whether the individual is an eligible individual;
``(2) whether an eligible individual has sustained a
covered injury or injuries for which medical benefits or
compensation may be available under sections 264 and 265, and
the amount of such benefits or compensation;
``(3) whether the covered injury or injuries of an eligible
individual constitute a compensable disability, or caused the
individual's death, for purposes of benefits under section
266.
``(b) Covered Individuals.--The Secretary may accept a
certification, by a Federal, State, or local government
entity or private health care entity participating in the
administration of covered countermeasures under the
Declaration, that an individual is a covered individual.
``(c) Criteria for Reimbursement.--
``(1) Injuries specified in injury table.--In any case
where an injury or other adverse effect specified in the
injury table established under section 263 as a known effect
of a vaccine manifests in an individual within the time
period specified in such table, such injury or other effect
shall be presumed to have resulted from administration of
such vaccine.
``(2) Other determinations.--In making determinations other
than those described in paragraph (1) as to the causation or
severity of an injury, the Secretary shall employ a
preponderance of the evidence standard and take into
consideration all relevant medical and scientific evidence
presented for consideration, and may obtain and consider the
views of qualified medical experts.
``(d) Deadline for Filing Request.--The Secretary shall not
consider any request for a benefit under this part with
respect to an individual, unless--
``(1) in the case of a request based on the administration
of the vaccine to the individual, the individual provides
notice to the Secretary of an adverse effect of the
vaccination not later than one year after the date of
administration of the vaccine; or
``(2) in the case of a request based on accidental vaccinia
inoculation, the individual provides notice to the Secretary
of an adverse effect of such vaccination not later than two
years after the date of the first symptom or manifestation of
onset of the adverse effect.
``(e) Review of Determination.--
``(1) Secretary's review authority.--The Secretary may
review a determination under this section at any time on the
Secretary's own motion or on application, and may affirm,
vacate, or modify such determination in any manner the
Secretary deems appropriate.
``(2) Judicial and administrative review.--No court of the
United States, or of any State, District, territory or
possession thereof, shall have subject matter jurisdiction to
review, whether by mandamus or otherwise, any action by the
Secretary under this section. No officer or employee of the
United States shall review any action by the Secretary under
this section (unless the President specifically directs
otherwise).
``SEC. 263. SMALLPOX VACCINE INJURY TABLE.
``(a) Smallpox Vaccine Injury Table.--
``(1) Establishment required.--The Secretary shall
establish by interim final regulation a table identifying
adverse effects (including injuries, disabilities, illnesses,
conditions, and deaths) that shall be presumed to
[[Page H2479]]
result from the administration of (or exposure to) a smallpox
vaccine, and the time period in which the first symptom or
manifestation of onset of each such adverse effect must
manifest in order for such presumption to apply.
``(2) Amendments.--The Secretary may amend by regulation
the table established under paragraph (1). Amendments shall
apply retroactively to claims pending at the time of
promulgation of final amending regulations and to claims
filed subsequently. If the effect of such amendment is to
permit an individual who was not, before such amendment,
eligible for compensation under this part, such individual
may file a request for compensation or file an amended
request for such compensation not later than one year after
the effective date of such amendment in the case of an
individual to whom the vaccine was administered and two years
in the case of a request for compensation based on accidental
vaccinia inoculation.
``SEC. 264. MEDICAL BENEFITS.
``(a) In General.--Subject to the succeeding provisions of
this section, the Secretary shall make payment or
reimbursement for medical items and services as reasonable
and necessary to treat a covered injury of an eligible
individual. The Secretary may consider the Federal Employees
Compensation Act (5 U.S.C. 8103) and its implementing
regulations in determining the amount of such payment and the
circumstances under which such payments are reasonable and
appropriate.
``(b) Benefits Secondary to Other Coverage.--Payment or
reimbursement for services or benefits under subsection (a)
shall be secondary to any obligation of the United States or
any third party (including any State or local governmental
entity, private insurance carrier, or employer) under any
other provision of law or contractual agreement, to pay for
or provide such services or benefits. The Secretary shall
have the discretion to establish mechanisms and procedures
for providing the secondary benefits under this section.
``SEC. 265. COMPENSATION FOR LOST EMPLOYMENT INCOME.
``(a) In General.--Subject to the succeeding provisions of
this section, the Secretary shall provide compensation to an
eligible individual for loss of employment income incurred as
a result of a covered injury, at the rate specified in
subsection (b).
``(b) Amount of Compensation.--
``(1) In general.--Compensation under this section shall be
at the rate of 66 2/3 percent of monthly employment income,
except that such percentage shall be 75 percent in the case
of an individual who has one or more dependents. The
Secretary may consider the Federal Employees Compensation Act
(5 U.S.C. 8114 and 8115) and its implementing regulations in
determining the amount of such payment and the circumstances
under which such payments are reasonable and appropriate.
``(2) Treatment of self-employment income.--For purposes of
this section, the term `employment income' includes income
from self-employment.
``(c) Limitations.--
``(1) Benefits secondary to other coverage.--Any
compensation under subsection (a) shall be secondary to the
obligation of the United States or any third party (including
any State or local governmental entity, private insurance
carrier, or employer), under any other law or contractual
agreement, to pay compensation for loss of employment income
and shall not be made to the extent that compensation for
loss of employment income has been made under such other
obligations in an amount that equals or exceeds the rate
specified in subsection (b)(1).
``(2) No benefits for death or permanent and total
disability.--No payment shall be made under this section in
compensation for loss of employment income subsequent to the
receipt by an eligible individual (or his survivor or
survivors) of benefits under section 266 for death or
permanent and total disability.
``(3) Limit on total benefits.--Total benefits paid to an
individual under this section shall not exceed $50,000 for
any year, and the lifetime total of such benefits for the
individual may not exceed an amount equal to the amount
authorized to be paid under section 266.
``(4) Waiting period.--An eligible individual shall not be
provided compensation under this section for the first 5 work
days of disability.
``SEC. 266. PAYMENT FOR DEATH AND PERMANENT, TOTAL
DISABILITY.
``(a) Benefit for Permanent and Total Disability.--The
Secretary shall pay to an eligible individual who is
determined to have a covered injury or injuries meeting the
definition of disability in section 216(i) of the Social
Security Act (42 U.S.C. 416(i)) an amount determined under
subsection (c), in the same manner as disability benefits are
paid pursuant to the PSOB program in section 1201(b) of the
OCCSSA with respect to an eligible public safety officer
(except that payment shall be made to the parent or legal
guardian, in the case of an eligible individual who is a
minor or is subject to legal guardianship).
``(b) Death Benefit.--The Secretary shall pay, in the case
of an eligible individual whose death is determined to have
resulted from a covered injury or injuries, a death benefit
in the amount determined under subsection (c) to the survivor
or survivors in the same manner as death benefits are paid
pursuant to PSOB program in section 1201 of the OCCSSA with
respect to an eligible deceased (except that in the case of
an eligible individual who is a minor with no living parent,
the legal guardian shall be considered the survivor in the
place of the parent).
``(c) Benefit Amount.--
``(1) In general.--The amount of the disability or death
benefit under subsection (a) or (b) in a fiscal year shall
equal the amount of the comparable benefit calculated under
the PSOB in such fiscal year, without regard to any reduction
attributable to a limitation on appropriations, but subject
to paragraph (2).
``(2) Reduction for payments for lost employment income.--
The amount of the benefit as determined under paragraph (1)
shall be reduced by the total amount of any benefits paid
under section 265 with respect to lost employment income.
``(d) Benefit in Addition to Medical Benefits.--A benefit
under this section shall be in addition to any amounts
received by an eligible individual under section 264.
``(e) Limitations.--
``(1) Disability benefits.--Except as provided in paragraph
(3), no benefit is payable under subsection (a) with respect
to the disability of an eligible individual if--
``(A) a disability benefit is paid or payable with respect
to such individual under the PSOB; or
``(B) a death benefit is paid or payable with respect to
such individual under subsection (b) or the PSOB.
``(2) Death benefits.--No benefit is payable under
subsection (b) with respect to the death of an eligible
individual if--
``(A) a disability benefit is paid with respect to such
individual under subsection (a) or the PSOB; or
``(B) a death benefit is paid or payable with respect to
such individual under the PSOB.
``(3) Exception in the case of a limitation on
appropriations for disability benefits under psob.--In the
event that disability benefits available to an eligible
individual under the PSOB program are reduced because of a
limitation on appropriations, and such reduction would affect
the amount that would be payable under paragraph (1) or (2)
without regard to this paragraph, benefits shall be available
under subsection (a) or (b) to the extent necessary to ensure
that such individual (or his survivor or survivors) receives
a total amount equal to the amount described in subsection
(c).
``(f) References.--References in this section--
``(1) to the Public Safety Officers' Benefits Program or
PSOB are references to the program under part L, subpart 1 of
title I of the OCCSSA; and
``(2) to the OCCSSA are to the Omnibus Crime Control and
Safe Streets Act of 1968 (42 U.S.C. 3796 et seq.).
``SEC. 267. ADMINISTRATION.
``(a) Administration by Agreement With Other Agency or
Agencies.--The Secretary may administer any or all of the
provisions of this part through Memorandum of Agreement with
the head of any appropriate Federal agency.
``(b) Regulations.--The head of the agency administering
this part or provisions thereof (including any agency head
administering such Act or provisions through a Memorandum of
Agreement under subsection (a)) may promulgate such
implementing regulations as may be found necessary and
appropriate. Initial implementing regulations may be interim
final regulations.
``SEC. 268. PARTICIPANT EDUCATION REGARDING SMALLPOX
EMERGENCY RESPONSE PLANS.
``In reviewing State, local, or Department of Health and
Human Services smallpox emergency response plans described in
section 261, the Secretary shall ensure that such plans are
consistent with guidelines of the Centers for Disease Control
and Prevention with respect to the education of individual
participants (including information as to the voluntary
nature of the program and the availability of potential
benefits under this part), and the adequate screening of
individuals for vaccine contraindications.
``SEC. 269. AUTHORIZATION OF APPROPRIATIONS.
``For the purpose of carrying out this part, there are
authorized to be appropriated such sums as may be necessary
for each of the fiscal years 2003 through 2007, to remain
available until expended, including administrative costs and
costs of provision and payment of benefits. The Secretary's
payment of any benefit under section 264, 265, or 266 shall
be subject to the availability of appropriations under this
section.
``SEC. 270. RELATIONSHIP TO OTHER LAWS.
``Except as explicitly provided herein, nothing in this
part shall be construed to override or limit any rights an
individual may have to seek compensation, benefits, or
redress under any other provision of Federal or State law.''.
SEC. 3. AMENDMENTS TO PROVISION REGARDING TORT LIABILITY FOR
ADMINISTRATION OF SMALLPOX COUNTERMEASURES.
(a) Amendment to Accidental Vaccinia Inoculation
Provision.--Section 224(p)(2)(C)(ii)(II) of such Act (42
U.S.C. 233(p)(2)(C)(ii)(II)) is amended by striking ``resides
or has resided with'' and inserting ``has resided with, or
has had contact with,''.
(b) Deeming Acts and Omissions to be Within Scope of
Employment.--Section 224(p)(2) of such Act (42 U.S.C.
233(p)(2)) is amended by adding at the end the following new
subparagraph:
[[Page H2480]]
``(D) Acts and omissions deemed to be within scope of
employment.--
``(i) In general.--In the case of a claim arising out of
alleged transmission of vaccinia from an individual described
in clause (ii), acts or omissions by such individual shall be
deemed to have been taken within the scope of such
individual's office or employment for purposes of--
``(I) subsection (a); and
``(II) section 1346(b) and chapter 171 of title 28, United
States Code.
``(ii) Individuals to whom deeming applies.--An individual
is described by this clause if--
``(I) vaccinia vaccine was administered to such individual
as provided by subparagraph (B); and
``(II) such individual was within a category of individuals
covered by a declaration under subparagraph (A)(i).''.
(c) Exhaustion; Exclusivity; Offset.--Section 224(p)(3) of
such Act (42 U.S.C. 233(p)(3)) is amended to read as follows:
``(3) Exhaustion; exclusivity; offset.--
``(A) Exhaustion.--
``(i) In general.--A person may not bring a claim under
this subsection unless such person has received a
determination about remedies available under section 262.
``(ii) Tolling of statute of limitations.--The time limit
for filing a claim under this subsection, or for filing an
action based on such claim, shall be tolled during the
pendency of a determination by the Secretary under section
262.
``(iii) Construction.--This subsection shall not be
construed as superseding or otherwise affecting the
application of a requirement, under chapter 171 of title 28,
United States Code, to exhaust administrative remedies.
``(B) Exclusivity.--The remedy provided by subsection (a)
shall be exclusive of any other civil action or proceeding
for any claim or suit this subsection encompasses, except for
a proceeding under part C of this title.
``(C) Offset.--The value of all compensation and benefits
provided under part C of this title for an incident or series
of incidents shall be offset against the amount of an award,
compromise, or settlement of money damages in a claim or suit
under this subsection based on the same incident or series of
incidents.''.
(d) Requirement to Cooperate With United States.--Section
224(p)(5) of such Act (42 U.S.C. 233(p)(5)) is amended in the
caption by striking ``Defendant'' and inserting ``Covered
person''.
(e) Amendment to Definition of Covered Countermeasure.--
Section 224(p)(7)(A)(i)(II) of such Act (42 U.S.C.
233(p)(7)(A)(i)(II)) is amended to read as follows:
``(II) used to control or treat the adverse effects of
vaccinia inoculation or of administration of another covered
countermeasure; and''.
(f) Amendment to Definition of Covered Person.--Section
224(p)(7)(B) of such Act (42 U.S.C. 233(p)(7)(B)) is
amended--
(1) by striking ``includes any person'' and inserting
``means a person'';
(2) in clause (ii)--
(A) by striking ``auspices'' and inserting ``auspices--'';
(B) by redesignating ``such countermeasure'' and all that
follows as clause (I) and indenting accordingly; and
(C) by adding at the end the following:
``(II) a determination was made as to whether, or under
what circumstances, an individual should receive a covered
countermeasure;
``(III) the immediate site of administration on the body of
a covered countermeasure was monitored, managed, or cared
for; or
``(IV) an evaluation was made of whether the administration
of a countermeasure was effective;'';
(3) in clause (iii) by striking ``or'';
(4) by striking clause (iv) and inserting the following:
``(iv) a State, a political subdivision of a State, or an
agency or official of a State or of such a political
subdivision, if such State, subdivision, agency, or official
has established requirements, provided policy guidance,
supplied technical or scientific advice or assistance, or
otherwise supervised or administered a program with respect
to administration of such countermeasures;
``(v) in the case of a claim arising out of alleged
transmission of vaccinia from an individual--
``(I) the individual who allegedly transmitted the
vaccinia, if vaccinia vaccine was administered to such
individual as provided by paragraph (2)(B) and such
individual was within a category of individuals covered by a
declaration under paragraph (2)(A)(i); or
``(II) an entity that employs an individual described by
clause (I) or where such individual has privileges or is
otherwise authorized to provide health care;
``(vi) an official, agent, or employee of a person
described in clause (i), (ii), (iii), or (iv);
``(vii) a contractor of, or a volunteer working for, a
person described in clause (i), (ii), or (iv), if the
contractor or volunteer performs a function for which a
person described in clause (i), (ii), or (iv) is a covered
person; or
``(viii) an individual who has privileges or is otherwise
authorized to provide health care under the auspices of an
entity described in clause (ii) or (v)(II).''.
(g) Amendment to Definition of Qualified Person.--Section
224(p)(7)(C) of such Act (42 U.S.C. 233(p)(7)(C)) is
amended--
(1) by designating ``is authorized to'' and all that
follows as clause (i) and indenting accordingly;
(2) by striking ``individual who'' and inserting
``individual who--''; and
(3) by striking the period and inserting ``; or
``(ii) is otherwise authorized by the Secretary to
administer such countermeasure.''.
(h) Definition of ``Arising Out of Administration of a
Covered Countermeasure''.--Section 224(p)(7) of such Act (42
U.S.C. 233(p)(7)) is amended by adding at the end the
following new subparagraph:
``(D) Arising out of administration of a covered
countermeasure.--The term `arising out of administration of a
covered countermeasure', when used with respect to a claim or
liability, includes a claim or liability arising out of--
``(i) determining whether, or under what conditions, an
individual should receive a covered countermeasure;
``(ii) obtaining informed consent of an individual to the
administration of a covered countermeasure;
``(iii) monitoring, management, or care of an immediate
site of administration on the body of a covered
countermeasure, or evaluation of whether the administration
of the countermeasure has been effective; or
``(iv) transmission of vaccinia virus by an individual to
whom vaccinia vaccine was administered as provided by
paragraph (2)(B).''.
(i) Technical Correction.--Section 224(p)(2)(A)(ii) of such
Act (42 U.S.C. 233(p)(2)(A)(ii)) is amended by striking
``paragraph (8)(A)'' and inserting ``paragraph (7)(A)''.
(j) Effective Date.--This section shall take effect as of
November 25, 2002.
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
Louisiana (Mr. Tauzin) and the gentlewoman from California (Mrs. Capps)
each will control 20 minutes.
The Chair recognizes the gentleman from Louisiana (Mr. Tauzin).
General Leave
Mr. TAUZIN. Mr. Speaker, I ask unanimous consent that all Members may
have 5 legislative days within which to revise and extend their remarks
and include extraneous material on the bill, H.R. 1463.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Louisiana?
There was no objection.
Mr. TAUZIN. Mr. Speaker, I yield myself 5 minutes.
Mr. Speaker, I rise today to urge all Members to support H.R. 1463,
the Smallpox Emergency Personnel Protection Act of 2003, a critical
bill introduced by the vice chairman of the Committee on Energy and
Commerce, the gentleman from North Carolina (Mr. Burr).
In January of this year, our HHS Secretary Tommy Thompson called on
health personnel and emergency responders from across the Nation to
join smallpox emergency response teams in order to ensure that our
country was better prepared to deal with any outbreak of this deadly
disease caused by terrorists or rogue regimes such as Iraq. These
patriots have been asked to volunteer to get the smallpox vaccine now
so that they can administer the vaccine to the public should the need
arise. Since then, roughly 25,000 American volunteers have indeed
volunteered for this vaccine.
These health personnel and emergency responders are indeed to be
saluted for their service to the country. However, we do not need tens
of thousands of Americans to respond, we need hundreds of thousands, if
not millions; and we need these many, many Americans, health personnel,
and emergency first responders to heed the Secretary's call.
The legislation before us today, which was requested by the
administration, provides incentive for such individuals to roll up
their sleeves and get a shot. The bill does a number of important
things:
First, it provides for a total disability and death benefit equal to
the amount payable under the Public Safety Officers Benefit, the PSOB,
the existing Federal program that currently pays $262,000 in a lump
sum, indexed for inflation, to public safety officers who are killed or
totally disabled in the line of duty.
Given the sacrifice that we are asking from these smallpox
volunteers, a small number of whom may indeed suffer severe adverse
reactions which could include death, it makes sense to provide these
similar benefits.
But this bill goes further than the PSOB. It also provides coverage
for all reasonable and necessary medical expenses that are incurred by
individuals who are vaccinated and suffer adverse
[[Page H2481]]
effects, to the extent that such expenses are not picked up by their
own individual primary health insurance. The bill provides also lost
employment income if an individual misses more than 5 days of work due
to adverse effects of the vaccine. Under this benefit, the individual
could receive up to 75 percent of his monthly salary and up to $50,000
a year in supplemental wages capped at the maximum amount of the PSO
death benefit.
It is important to emphasize that the death and total disability
benefits are additive to any other death or disability benefit the
individual is already entitled to under Social Security, under State
and local government, under employers, or under private insurance
plans. And the lost wage income under this program, while secondary to
other similar benefits the person may have, supplements those benefits
to the extent the Federal program is more generous. For example, many
States and employers have much lower annual and lifetime caps on
workers' compensation benefits, which means the higher Federal figures
in our bill would supplement those other benefits.
And finally, the legislation provides most sensible and
noncontroversial technical amendments to last year's Homeland Security
Bill to provide better liability protections to the hospitals, doctors,
nurses, and public health officials at the State and local levels who
we are asking to participate in this most important program.
I must say I am disappointed, however, that despite the good faith
efforts on both sides of the aisle, and they have been good faith
efforts, we are not able to reach a bipartisan agreement on the
package. I strongly disagree that there should be any doubt as to the
commitment of the administration or the commitment of the Congress to
pay these benefits to injured volunteers as these bills become due.
I also disagree with the notion that the $262,000 caps for disability
and lost wages do not in fact provide a sufficient compensation
package. If these caps are good enough for our public police officers
and our firefighters who die in the line of duty, then I submit to you
that indeed they are good enough for this program as well.
A few people have in fact died after taking the vaccine, although we
do not know they died as a result of vaccine. But either way, we should
not delay in establishing a compensation program that would help with
these people, simply because we cannot agree right now on whether a
$262,000 figure is sufficient or not. We still need to provide, we need
to move forward with this incentive to make sure people are adequately
vaccinated to meet this threat.
Now, let us get the help to the people who need it now. If we find
out down the road that the program is inadequate or certain respects
need to be changed, we can always fix it later. This is an emergency.
This will make sure that we have the people available, ready to
vaccinate all of America if, God forbid, the worst should happen and we
suffer a smallpox attack.
Mr. Speaker, I reserve the balance of my time.
Mrs. CAPPS. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, this is an important issue, important to the health and
safety of our Nation.
Recent tragedies in the health care community have underscored the
need for us to address it and pass a robust compensation package for
victims. The President has called for America's nurses, firefighters,
and other first responders to be vaccinated against smallpox. Ensuring
our frontline health care responders are resistent to smallpox would
enhance our ability to respond to an attack resulting from this kind of
an outbreak. But this initiative is failing, and to make the program
work we need to guarantee our first responders that they and their
families will be compensated if they are harmed or killed by the
vaccine.
If the administration insists that these people be vaccinated against
the disease, then now more than ever it is critical that we provide the
peace of mind that these frontline people deserve and need. They do not
want handouts. They just want to know that if something happens to
them, they and their families will be taken care of. It is not too much
to ask. But I can tell you that the bill before us, as it is currently
drafted, will not provide that level of assurance.
Before I came to Congress I worked as a public health nurse for many
years. These are my colleagues that we are speaking of. And I know what
it is like to be on the front line. If you will not take my word for
it, listen to the American Nurses Association. They represent the
interests of 2.7 million nurses across this country, and they have
heard from their members. They oppose this bill because it is
insufficient to make the program work.
First, the bill before us does not guarantee that this compensation
program will be funded, and without a guarantee of funding, nurses and
other first responders who serve their country and become harmed by the
vaccine will have no assurance that the bill's promises will be kept.
{time} 1415
Second, this bill puts unfair caps on the wage compensation an
injured nurse or other first responder can receive. These caps would
unfairly penalize those families who lose their main source of income.
We should reject this bill; and instead, we should pass legislation
such as the gentleman from California (Mr. Waxman) and I have crafted
with our colleagues and with input with direct guidance from these
first responders. Our legislation would ensure that medical benefits
and the compensation in this bill are funded for years to come. It
would recognize and compensate the longer-term loss of wages that could
result from such an adverse effect, and it would allow families who
lose their main source of income because of the vaccine that they be
fully compensated for their loss.
This bill would tell nurses that if they take this risk and serve
their country that their families will not be left without resources or
hope. Ultimately, the risk of adverse effects is low. Perhaps 200
people out of the 10 million that we want to vaccinate could be
affected, but it is so important that we provide the assurance that if
a person is one of those 200 people they will be compensated
adequately.
Congress now has before it the opportunity to instill, first,
confidence in our first responders and truly prepare us for the
possible nightmare of a smallpox outbreak. The administration has been
disappointed thus far in the turnout for the vaccine. If the wrong kind
of legislation is passed, the turnout runs the risk of remaining small,
thus, not meeting the goal of the administration.
If this bill before us is not effective, this is our opportunity to
fix it. Let us take the time to get it right so that we can create this
shield against a bioterrorist attack in the form of smallpox.
I urge my colleagues to support their first responders, to protect
America from the threat of smallpox. Defeat this bill. Let us take the
time to get this right.
Mr. Speaker, I reserve the balance of my time.
Mr. TAUZIN. Mr. Speaker, I am pleased to yield 5 minutes to the
gentleman from Ohio (Mr. Boehner), the distinguished chairman of the
Committee on Education and the Workforce.
Mr. BOEHNER. Mr. Speaker, I want to thank my colleague for yielding
me the time.
Mr. Speaker, I rise today in support of this important legislation to
establish a compensation program for our Nation's emergency personnel
in the event they suffer complications from smallpox vaccinations. As
our United States troops fight the battle for freedom in Iraq, I am
pleased that Congress can contribute this important piece of
legislation which has been crafted to aid in our war effort and to
enhance the safety of our Nation.
The face of war is changing. While past efforts may have focused
solely on the armed aggression, the new face of war includes new
threats in the form of biological or chemical warfare. Our Nation's
armed services are not the only ones on the front lines of this
conflict, because the threat of terrorism is here in the United States.
Our emergency personnel, health care workers, and first responders are
also on those front lines.
Health care workers, law enforcement officers, firefighters and
others across the country are currently being vaccinated for smallpox.
With this vaccine, as my colleagues have heard,
[[Page H2482]]
come some risk of some workers having serious reactions to the vaccine.
It is also possible, though unlikely, that some may suffer life-
threatening complications and even death, and fittingly, this measure
will provide security to these workers who put their own health at risk
in order to help the American public.
This legislation provides an important backstop to ensure that
workers and their families will be protected if they suffer
complications from the smallpox vaccine. Workers injured in the line of
duty will be compensated first by their employers and second by the
United States Government. For those who may not have access to workers
compensation and other employer-sponsored health care, the Federal
Government will provide appropriate compensation. Even those workers
who have access to employer-sponsored benefits may receive additional
compensation from the smallpox fund; and as such, the bill sets a
Federal floor and ensures that each worker will be adequately
compensated.
Under the bill, workers who might suffer a totally disabling injury
or death as a result of the vaccine will receive cash benefits
consistent with the amounts of benefits paid under the Public Safety
Officers Benefits Program. For workers who suffer a less serious
injury, the bill provides compensation for medical expenses and the
loss of employment at a rate of 66\2/3\ percent of monthly pay, and
workers who have dependents will be compensated at a rate of 75 percent
monthly pay; and if a worker is eligible for less compensation than the
federally established level, the fund will compensate the individual at
the higher Federal level.
As chairman of the Committee on Education and the Workforce, I am
pleased to assist in helping my colleagues at the Committee on Energy
and Commerce draft this legislation, which I believe will ensure the
safety of health care workers and first responders. I am also
particularly pleased because my committee has primary jurisdiction over
the employer-sponsored health care and workers compensation disability
programs, which would include the Federal Employee Compensation Act,
which will be the primary payers of the compensation. This measure will
not only help our emergency personnel and first responders but enhance
the safety of our Nation as well.
I want to urge my colleagues to support this bill.
Mrs. CAPPS. Mr. Speaker, I yield myself such time as I may consume.
(Mrs. CAPPS asked and was given permission to revise and extend her
remarks, and include extraneous material.)
Mrs. CAPPS. Mr. Speaker, I insert for the Record letters from the
following groups which I have before me. These letters are written by
the American Public Health Association; the International Union of
Police Associations; the American Nurses Association; the International
Association of Firefighters; the American Federation of Teachers; the
American Federation of State, County and Municipal Employees; the
Service Employers National Union; and the Infectious Disease Society of
America.
American Nurses Association,
March 28, 2003.
Dear Representative: On behalf of the American Nurses
Association (ANA), I urge you to oppose the Smallpox
Emergency Personnel Protection Act (H.R. 1463). This bill
does not provide adequate education, prescreening,
surveillance, and compensation--therefore it will not result
in an increase in the number of nurses volunteering for
vaccinations. As this bill will be considered under the
suspension of the rules, you will be denied the opportunity
to vote in favor of the Capps/Waxman substitute that ANA
supports.
The ANA is the only full-service association representing
the nation's RNs through our 54 state and territorial
constituent member organizations. Our members are well
represented in the Administration's plan to vaccinate 10.5
million health care workers and first responders.
ANA supports efforts to ensure that our nation is prepared
for a possible terrorist attack. ANA has, since November
2002, been trying to work with the Administration to
formulate a strong smallpox vaccination program that will
encourage nurses to volunteer to be immunized. Since the
Administration's plan was first announced, ANA has repeatedly
raised questions about the health and safety of nurses who
are vaccinated, as well as their patients and families. ANA's
concerns have been echoed by many in the public health
community and reinforced by an expert panel from the
Institute of Medicine. Unfortunately, the Smallpox Emergency
Personnel Protection Act (H.R. 1463), fails to address these
questions.
The smallpox vaccine is a live virus. It has the worst
record of negative side effects of any vaccine in the world.
It is imperative, as a matter of public health, that those
being vaccinated understand the risks of the vaccine to
themselves and their loved ones, and be prescreened for
conditions that require them to refuse the vaccine. The
smallpox inoculation site can shed the live virus for up to
three weeks. In the 1960s, more than 20% of the adverse
vaccination events occurred in secondary contacts. Therefore,
the vaccination program poses a risk not only to nurses, but
also to their patients and families.
Members of the armed services have received personalized
education, and free and confidential prescreening prior to
the administration of the vaccine. This process properly
screened out one-third of the potential recipients. The
Smallpox Emergency Personnel Protection Act fails to require
a similar program. In addition, H.R. 1463 fails to require
sufficient funding needed to ensure that state and local
public health officials can actually implement the crucial
education, prescreening, and surveillance programs. The
recent death of a Maryland nurse, a Florida nurse aide, and a
National Guardsman only underscore the need for this robust
education, prescreening, and surveillance effort. Nurses and
other first responders will continue to feel uncomfortable
about the vaccine until they receive the reliable information
needed to make an informed decision.
Furthermore, H.R. 1463 contains an insufficient, unfunded
compensation program. The Administration is basically asking
healthy nurses to place themselves (as well as their patients
and families) at risk for the common good. The vaccination
has no tangible benefits for nurses; it is sought in the name
of homeland security. ANA does not believe that nurses should
be made to bear this public risk without the guarantee of a
real compensation program. H.R. 1463 contains an unacceptable
lifetime cap on wage replacement and fails to ensure that
funds will be available for the compensation fund.
ANA urges you to vote against H.R. 1463. Your no vote does
not mean that you oppose a smallpox compensation program. In
fact, the solid disapproval of this bill will demonstrate
needed support for a real smallpox vaccination program, such
as the Capps/Waxman substitute. Please feel free to call Erin
McKeon (202) 651-7095 or Christopher Donnellan (202) 651-7088
on my staff with any questions regarding this letter.
Sincerely,
Rose Gonzalez, MPS, RN,
Director, Government Affairs.
____
Infectious Diseases Society
of America,
March 28, 2003.
Hon. J. Dennis Hastert,
Speaker,
House of Representatives.
Dear Speaker Hastert: I am writing on behalf of the
Infectious Diseases Society of America (IDSA) and the 7,000
infectious diseases physicians and scientists we represent to
thank you and other House leaders on both sides of the aisle
for pursuing a plan to compensate individuals who may be
injured during the implementation of the National Smallpox
Immunization Plan (NSIP).
Over the past year, IDSA and its members--including those
who were on the frontline of smallpox eradication efforts--
have provided essential information to the federal and state
governments as they have prepared responses to a potential
smallpox event. ID physicians will be integrally involved
should a bioterrorism event occur; an ID specialist
discovered the first anthrax case that occurred in Florida.
Presently, many of our members are working with state and
local public health officials to oversee NSIP's
implementation.
IDSA's leaders believe strongly, as you do, that the
creation of a compensation plan is essential to NSIP's
success. As the House moves forward next week to consider
legislation to establish such a program, we would like to
take this final opportunity to stress to you the expert
opinion of our leaders on this subject. IDSA closely reviewed
the Administration's proposal, which Congressman Richard Burr
introduced this week, H.R. 1463, as well as H.R. 865,
sponsored by Congressman Henry Waxman. Certain aspects of the
Administration's proposal appear promising. However, IDSA is
concerned that the Administration's proposal does not include
all of the elements necessary to ensure NSIP's success.
Below, we have highlighted the elements that our leaders
believe are critical and ask that House leaders include them
in whatever legislation the House passes.
One element that IDSA believes to be of primary
significance to the success of NSIP is universal eligibility.
That is, all individuals injured as a consequence of NSIP's
implementation should be compensated for their injuries.
Eligibility should not be promised upon whether injured
individuals volunteered to participate in the program or were
injured as a result of a secondary transmission. Moreover,
such eligibility should extend to individuals who present
symptoms that are obviously associated with contact vaccinia,
regardless of whether they can establish a link back to a
specific vaccinee. Finally, an individual's eligibility
should not
[[Page H2483]]
be limited by an arbitrarily established time limit (e.g.,
180 days after interim final rule is published or 120 days
after becoming a covered person), but should extend
throughout the period of time that NSIP is being
implemented as well as for a reasonable period of time
after the last vaccination takes place.
The second essential element IDSA's leaders support is fair
and adequate compensation for all individuals who are injured
as a consequence of NSIP's implementation. It is just and
right that individuals be made whole for the injuries they
suffer as the result of a program being carried out under the
auspices of national security. Under H.R. 1463, compensation
for medical expenses, disability, lost wages and death is
modeled after the Public Safety Officers Benefit program
(PSOB). The PSOB program is designed to work in conjunction
with other benefit programs, such as workers' compensation
and health insurance and is designed primarily to deal with
death and total, permanent disability. In the case of
smallpox, there are no guarantees that a person injured by
the smallpox vaccine will be covered by workers' compensation
or will be adequately insured. As a result, those injured as
a result of NSIP may receive far less compensation than those
PSOB currently covers. Therefore, IDSA strongly urges Horse
leaders to supplement the PSOB model found in H.R. 1463 to
include the following criteria relating to medical expenses,
disability, lost wages and/or death:
Guaranteed immediate medical care for all injured;
A significantly more generous compensation package for
death than what is found in the H.R. 1463;
Permanent disability benefit of unreimbursed actual wages
and unreimbursed medical costs not subject to any
limitations;
Payment of non-economic damages up to $250,000;
Compensation for temporary disability, including
unreimbursed medical costs and unreimbursed actual wages
starting at day one.
Finally, IDSA believes it to be essential that this program
be authorized through mandatory funding mechanisms and not be
paid for through discretionary funding sources.
IDSA leaders are available to work with you and other
Congressional leaders to achieve quick passage and enactment
of a smallpox compensation plan that makes whole all
individuals injured during the implementation of President
Bush's NSIP. Thank you again for the leadership you have
shown in moving this important legislation forward. Should
you have any questions, please feel free to contact Robert J.
Guidos, JD, IDSA's director of public policy at 703-299-0200.
Sincerely,
W. Michael Scheld,
President.
____
International Association
of Fire Fighters,
Washington, DC. March 28, 2003.
House of Representatives,
Washington, DC.
Dear Representative: On behalf of the nation's more 260,000
professional fire fighters and emergency medical personnel, I
reluctantly must urge you to vote against H.R. 1463, the
Smallpox Emergency Personnel Protection Act, under suspension
of the rules.
While we strongly endorse the need for a comprehensive
smallpox vaccination program, H.R. 1463 contains a number of
significant deficiencies. Considering this legislation under
suspension of the rules will prohibit amendments from being
offered to address these concerns.
As currently drafted, H.R. 1463 fails to adequately provide
for education and screening of the workers who are being
asked to receive this vaccine. As the recent death of two
nurses demonstrates, the vaccine should not be administered
to certain people. While H.R. 1463 addresses compensation for
people who die from the vaccine, it does not contain adequate
safeguards to prevent those deaths from happening in the
first place.
In addition, we have concerns about the compensation
package contained in H.R. 1463. The legislation appears to
have been crafted to serve as a supplement to workers
compensation, but it is far from clear that workers
compensation would cover injuries stemming from the vaccine.
Because the smallpox vaccination program is a voluntary
program, state workers comp systems may deny benefits.
For these and other reasons, we believe the House should
consider improvements to H.R. 1463. We therefore urge you to
vote against H.R. 1463 under suspension, so that the House
may have the opportunity to debate and consider amendments to
the proposal.
Sincerely,
Barry Kasinitz,
Director, Governmental Affairs.
Mr. Speaker, I yield as much time as he may consume to the gentleman
from California (Mr. Waxman), the ranking member of the Committee on
Government Reform, with a long history of concern and investigation
into the vaccine policy of this Nation.
Mr. WAXMAN. Mr. Speaker, I thank my colleague very much for yielding
me time to speak on this issue, and I do so with a great deal of regret
because on the House floor today we should be backing a bill on a
bipartisan basis without any dissent because, whether one is a Democrat
or a Republican, all of us want to encourage people in the health care
and first responder community to get the vaccination for smallpox so
they can be of service to all of us should, God forbid, there be a
smallpox attack.
I am forced now to rise in opposition to this bill, and I want to
point out that the bill is on the suspension of the rules, which is
ordinarily reserved for noncontroversial matters. As a matter of fact,
this bill is very controversial. It should have been debated and
considered under the rules of the House. That would have given Members
an opportunity to put forward alternatives so that the Members of the
House of Representatives could listen to a debate and make choices on
policies.
Instead, what we have is a suspension calendar being used to close
off any opportunity for amendments, to prevent alternatives from being
put forward so our colleagues who have been duly elected in 435
districts in this country, could have the right to choose what they
thought was the best policy. This suspension of the rules procedure is
nothing more than a gag to prevent Members, Democrats and Republicans,
from being able to make choices, which is what they were elected to do.
The reason I oppose this bill is substantive. This bill will not
adequately compensate nurses, firefighters, police officers, and other
first responders who are injured by the smallpox vaccine, a vaccine
that they take voluntarily in order to make sure that the country is
prepared for a bioterrorist attack.
We have tried to work with the Republicans to craft legislation that
all of these groups can support. However, the Republicans were
unwilling to agree to a meaningful compensation program and have put
forward H.R. 1463, a bill that is opposed by every one of these groups.
The issue of how to compensate people for smallpox vaccine injuries
is only hard if someone decides to make it hard, and that seems to be
what the House Republican leadership and the Bush administration have
done. The science is not hard. For every million people who are
immunized against smallpox, one of two will die and 10 to 20 will
become severely ill or disabled.
The policy is not hard. If people get injured in the line of public
duty, the public should compensate them, and the administration has
asked nurses and firefighters and other first responders to take
smallpox shots, not for their own good, but to protect all Americans in
case of a bioterrorist attack.
The substance is not hard. A compensation program should be clear
about what it covers. It should provide decent benefits if someone is
disabled or killed, and it should have guaranteed funding.
The law is not hard. We have a successful program of no-fault
compensation for children who are injured by vaccines. We have programs
for Federal workers and even Federal volunteers who are disabled or
killed. We even have a program for compensation of people hurt or
killed on September 11, 2001.
The budgeting is not hard. If every nurse or firefighter got the
average award from the September 11 fund, which they will not, we would
only be committing $18 to $33 million per million vaccinations. At
most, that is 400ths of 1 percent of what the administration has
requested for the war.
The process is not hard. If there is honest disagreement about
legislation, which there is, then the House should be allowed to debate
amendments and make choices. This should be an easy one, but the House
leadership and the administration are making it very hard.
H.R. 1463 includes a lifetime cap on wage assistance for injured
first responders and their families. This means that the families of
nurses or other first responders may have to fend for themselves
without a bread winner after just a few years of compensation. The
lump-sum payment offered by H.R. 1463 is clearly inadequate for death
or permanent disability for a nurse who has a family to support.
A second problem is that H.R. 1463 requires that funding for the
compensation program be subject to the uncertainties of the
appropriations process. A guaranteed funding stream is a linchpin of a
successful and meaningful
[[Page H2484]]
compensation program. Without it, Congress is making a promise that it
may not keep.
A third problem with this legislation is that it limits eligibility
for compensation for those people who are vaccinated within a short
time period after the implementation of the program. This provision is
not only vigorously opposed by all of the groups being asked to take
the vaccine but also by the State and local officials running the
vaccination program.
I genuinely do not understand why the House leadership and the
administration have decided to draw this line. The smallpox
immunization program is not working. Everyone agrees that one of the
reasons that there is not a compensation program in place to reassure
nurses and firefighters and other first responders, that if they are
injured by the vaccine, they and their families will be provided for,
and the representatives of those organizations agree that the
Republican bill is not enough to reassure their members.
Those same representatives agree that the proposals made by the
gentlewoman from California (Mrs. Capps) and some of the others of us
who were working with her will succeed. It is very disappointing that
the legislative process has been cut short and that the gentlewoman
from California (Mrs. Capps) has been denied the chance, even the
chance, to offer her amendment.
Why are the leadership and the administration making this so hard? I
do not have an answer to that question, but I do know what we need to
do next. Let us defeat this bill, negotiate a reasonable one, and then
move on to the genuinely tough problems facing our country.
I would like to respond to the comparisons of H.R. 1463 with the
Public Safety Officers Benefit program. This was alluded to by the
gentleman from Louisiana (Mr. Tauzin). This is a false comparison. The
Public Safety Officers Benefit program is meant to supplement what
police officers and others receive when injured in the line of duty.
There are many other State and local programs that also provide
compensation.
In contrast, H.R. 1463 is the sole source of compensation for many
health care workers and their contacts who may be injured.
{time} 1430
And let me emphasize that point. It is not just the first responders
who may be injured, but the family members who may be injured as well,
by the vaccine taken by the nurse or firefighter or police officer,
because they can be subject to injury by exposure to the person who has
been immunized.
A true comparison would compare H.R. 1463 with other compensation
programs. By a true comparison, H.R. 1463 is clearly not adequate. This
bill provides far less than benefits provided to Americans injured by
childhood vaccines in the National Vaccine Injury Compensation Program.
H.R. 1463 provides far less than what Federal employees receive,
civilian or military, if injured under the Federal Employee
Compensation Act. And H.R. 1463 also provides far less than what
Members of Congress can get if injured or disabled.
If it is good enough for Members of this body, we should not hesitate
to provide it to those Americans on the front lines of any bioterrorist
attack who are protecting all Americans. We are subject to compensation
without caps. We ought to do the same for those who are standing up for
all Americans should there be a terrorist attack of smallpox.
People have told us they need to have a program that will counsel
them and educate them, because some people should not be immunized at
all. But there is no such provision for that kind of screening
mechanism, an educational effort in the Republican bill, even though it
would save money because people would not be immunized if they knew
they might be at a high risk. And people have told us that if they are
going to be asked to be at risk, we ought to stand behind them. The
Republican bill does not stand behind these first responders.
This should be negotiated on a bipartisan basis, or at least let the
House work its will. I urge our colleagues to vote against this H.R.
1463, defeat it on the suspension calendar and insist that we go back
and work on legislation that will accomplish the purpose that all of us
have in mind in providing legislation for such a Smallpox Emergency
Personnel Protection Act.
Mr. Speaker, I wish to provide for the Record two letters, one from
the Service Employees International Union and one from the American
Federation of State, County, and Municipal Employees, which I think
further elaborates on this issue.
American Federation of State, County and Municipal
Employees, AFL-CIO,
Washington, DC, March 28, 2003.
Dear Representative: On behalf of the 1.3 million members
of the American Federation of State, County and Municipal
Employees (AFSCME), including over 360,000 health care
workers and first responders, we are writing to urge you to
oppose H.R. 1463, introduced by Representative Richard Burr
and scheduled on the suspension calendar for Monday, March
31.
H.R. 1463 would establish a deeply flawed smallpox
compensation program for health care workers and first
responders injured by the smallpox vaccination. However, this
legislation fails to safeguard the health and safety of
workers asked to volunteer for the smallpox vaccination
program. Moreover, the bill fails to address the concerns of
workers who fear that a serious injury or death from the
smallpox vaccine would lead to economic catastrophe for
themselves and their families.
While the Administration had hoped to vaccinate up to 10.5
million workers, only about 21,000 workers have been
vaccinated thus far. Clearly, there has been a great
reluctance among health care workers and first responders to
risk the loss of health and income without an adequate safety
net for themselves and their families. While the legislation
is premised on the assumption that workers will be eligible
for workers' compensation in the event of an injury, the
reality is that, in most states, workers cannot depend on
this. In fact, there are only 14 states where it appears at
all certain that claims for benefits will be honored by the
state workers' compensation system.
Therefore, workers in most states who are permanently and
totally disabled will be eligible only for this bill's
maximum lump sum payment of $262,100. This represents about
five years' wages for the average nurse--not enough to
sustain an individual or family over a lifetime. For a worker
who suffers partial or temporary disability, the benefit is
also capped at $262,100 over a lifetime. Health care workers
and first responders who suffer injuries that limit their
ability to earn a living must be compensated at a level that
reflects their reduced earnings capability for the duration
of their injury. If the aim of the legislation is to
encourage workers to be vaccinated, H.R. 1463 will not do the
job. Workers will continue to be reluctant to be vaccinated
in the absence of assurances that they will not face economic
ruin should they become injured.
While the bill provides medical benefits for the treatment
of injuries or illnesses, it does not provide medical
benefits for rehabilitation, palliative care or long term
care that may be needed. This is a significant gap in health
coverage for workers asked to risk their health.
Another significant flaw in the bill is that funding for
compensation and medical benefits are not mandatory. Workers
who have lost their health and livelihood should not have to
wage a fight for compensation each year during the
appropriations process.
The legislation fails to ensure that the smallpox program
will be carried out safely, in stark contrast to the program
in place for military personnel. The bill does not require
that health departments make medical tests, such as pregnancy
tests, available to workers in order to screen out those who
ought not to be vaccinated. The legislation also fails to
include requirements for monitoring those who are vaccinated
to catch adverse reactions before they develop into life
threatening complications, similar to the military plan.
There is also no funding for state and local public health
departments to carry out this expensive program safely.
The legislation also fails to include a table of injuries
that ensure that workers will be awarded compensation
quickly. After years of experience with the smallpox vaccine,
there are injuries, that occur within specific time periods,
that are known to be caused by the vaccine. This schedule of
injuries must be included to ensure that compensation will be
quick and certain. Otherwise, workers cannot be certain
before receiving the vaccine that the most likely serious
injuries will qualify for compensation.
We also object to the bill's requirement that workers
receive the vaccination within 180 days of the date
regulations are issued. Any worker that is vaccinated under
the Secretary's declaration must be eligible for federal
compensation. It is punitive to deny compensation to a worker
who opts to participate at a later date.
H.R. 1463 is deeply flawed. We strongly urge you to oppose
this bill.
Sincerely,
Charles M. Loveless,
Director of Legislation.
____
March 28, 2003.
Dear Representative: On behalf of the 1.5 million members
of the Service Employees International Union (SEIU),
including over
[[Page H2485]]
750,000 health care workers and first responders, I am urging
you to vote against H.R. 1463 because it fails to provide
adequate protection to frontline workers who are volunteering
for the smallpox vaccination program. The bill, introduced by
Representative Richard Burr, is expected to come before the
House for a vote as early as Monday, March 31, and will be
offered under suspension without providing an opportunity to
vote for a stronger bill.
Since the Administration first announced the civilian
voluntary smallpox vaccination program, SEIU has worked to
protect health care workers, first responders, their patients
and the public through aggressive education, medical
screening, and surveillance, and to ensure they would have
access to a good compensation program. Now that three people
have died and others have experienced cardiac-related
problems in the days after their inoculations this only
reinforces the critical need for a comprehensive program--
which this legislation does not provide.
We understand the urgency of the program, especially in
this time of war. But at the same time, frontline workers who
respond to the call to protect other citizens in a time of
national crisis deserve the same protections being provided
to our military. To address the serious gaps in this plan, it
is incumbent upon Congress to develop bipartisan legislation
that encompasses the following issues:
Aggressive medical screening, monitoring and treatment--The
legislation must provide for a program to screen out workers
with any and all contraindicaions. Additionally, medical
surveillance is essential to assess the program's
effectiveness and ensure that any adverse reactions are
treated before they become life threatening, as evidenced by
the recent reports of heart related problems.
Adequate compensation--Already, there has been a great
reluctance among health care workers to risk injury and loss
of income without an adequate safety net for themselves and
their families. Any compensation package must be retroactive
and cover anyone who suffers a serious reaction as a result
of the vaccine, as well as those injured through close
contact with a vaccine recipient.
Ful accountability--Thorough investigation of, and full
disclosure of adverse events under both the military and
civilian plan must be reported immediately, and organizations
representing potential vaccine recipients deserve
notification along with the news media.
Guaranteed funding--There must be mandatory funding for the
compensation program to ensure money is available to
compensate those who have been injured or died as a result of
the vaccine. As was recently recommended by the Institute of
Medicine, there must be a clear commitment that adequate
funding shall be provided to the states to implement
education, screening, and medical surveillance through the
emergency supplemental for Homeland Security needs.
It is absolutely critical that this nation's vaccination
plan does not pose increased risks to the American people. We
believe the program should be suspended until there is good
legislation that ensures these safeguards are in place.
Please vote against H.R. 1463, the Smallpox Emergency
Personnel Protection Act, and take immediate action to
support stronger legislation that will truly protect health
care workers, patients, and the public.
Sincerely,
Andrew L. Stern,
International President.
Mr. TAUZIN. Mr. Speaker, I yield myself 2 minutes to briefly set the
record straight.
There has been extraordinary negotiations with the minority on this
bill, over 2 weeks of it. The administration brought this bill to us as
an emergency. It called upon us immediately to give authority to
provide these benefits to people who would volunteer to vaccinate
American citizens in the event of an attack of smallpox in this
country, which could come at any time, as we know, particularly as
hostilities are engaged in the Middle East and Iraq.
It brought it to us as an emergency and we took over 2 weeks to
negotiate. And we negotiated over a dozen changes, I am told. The most
important change we made was to bring up that disability cap from
$50,000 a year, that out-of-work cap, to the same level we provide for
policemen and firemen in this country. And, Mr. Speaker, I would say to
the gentleman from California (Mr. Waxman) that this is a supplemental
program, just as that program is. It is on top of. It is full secondary
coverage of medical benefits with no deductibles. That is a lot better
than most plans. It is primary lump sum disability and death benefit
that, under the Federal Public Safety Officers and Employees is equal
to $262,000. It is secondary coverage for temporary and partial
disability from $50,000 a year, again we raised it from the
administration provision, all the way up to the $262,000 level. It is
on top of disability benefits under Social Security; on top of the
benefits available in the State Employee or Private Disability
Benefits, and we still preserve the right to sue in Federal torts claim
court.
Doggone right we are behind those volunteers. Doggone right this is
an emergency. But we took 2 weeks, and I took it with a great deal of
pain on my conscience because I thought every night, when we were
negotiating this thing with our colleagues over here, I thought every
night, what happens if tomorrow we get hit and we have not passed this
bill yet and we do not have enough volunteers out there to vaccinate
all of America. What happens if every day I take negotiating with the
other side is a day we put our country at risk. And I suffered every
night with that thought for 2 weeks. We have negotiated this bill to a
point that it ought to get passed today.
Mr. Speaker, I yield 3 minutes to the gentleman from Texas (Mr.
Burgess).
Mr. BURGESS. Mr. Speaker, I thank the gentleman for yielding me this
time, and today I rise in support of H.R. 1463, the Smallpox Emergency
Personnel Act of 2003.
I will just add, in light of the comments made by the chairman, that
I come to this body as a physician and I likely, myself, will take this
vaccination to become a first responder.
Mr. Speaker, H.R. 1463 is a meaningful first step toward ensuring the
broadest acceptance of the President's call for voluntary vaccinations
by public safety personnel. In my home State of Texas, to date, only
1,700 first responders have been vaccinated for smallpox. Of this
number, Texas health officials report that there have been no adverse
reactions to date.
A number of factors can be attributed to the slow roll-out of this
vaccination campaign, but one of the major factors involved is first
responders are hesitant to take a vaccine with potential side effects.
We must be very clear about the current vaccination campaign. Different
people react to different medications differently. A great majority of
those who will receive this smallpox vaccination will have no reaction
at all. A handful, however, could face complications. Some of these may
be as minor as a rash. A small percentage of that number could face
more serious health complications, such as postvaccinial encephalitis
or endocarditis.
H.R. 1463 will ensure that a broad safety net is available for those
very few individuals that may suffer from an adverse reaction to the
smallpox vaccine. Under this bill, first responders are provided with
death and disability benefits comparable to the benefits police
officers and firefighters already have access to under the Public
Safety Officers Benefit Program. First responders who have an adverse
reaction could also qualify for lost employment income benefits,
coverage for medical expenses, and certain liability protections. H.R.
1463 will give first responders peace of mind to do something that will
protect all Americans.
First responders are on the front lines of our war against terrorism
and play a vital role in the instance of a terrorist attack. Our
enemies have shown us that they will go to any length to kill innocent
men, women and children. If they ever obtain a weapon as horrifying and
as devastating as smallpox, let there be no mistake, there will be no
hesitancy that they would use it. However, if they were able to employ
such a weapon, American first responders will have a greater ability to
protect all of us if they have already been inoculated from this
debilitating and life-threatening disease.
Americans are counting on our health care professionals to be
vaccinated against smallpox. By vaccinating these important first
responders, we will be able to contain a potential outbreak and save
thousands of lives. Americans are looking to the House of
Representatives for leadership on this issue. For that reason, I urge
my colleagues to protect first responders and give them the peace of
mind to protect all of us.
Mrs. CAPPS. Mr. Speaker, could I inquire what time remains?
The SPEAKER pro tempore (Mr. Petri). The gentlewoman from California
(Mrs. Capps) has 14\1/2\ minutes remaining and the gentleman from
Louisiana (Mr. Tauzin) has 6\1/2\ minutes remaining.
Mrs. CAPPS. Mr. Speaker, I yield myself such time as I may consume to
[[Page H2486]]
say, with all due respect to my chairman, for whom I have a great deal
of respect, that I commend him for his sense of urgency about the
timing of this. The first responders, my colleagues who are nurses,
have told us that they want confidence before they are going to roll up
their sleeves and take this vaccine, and that this bill does not give
them the confidence and that is why we stand in opposition to this
bill.
Mr. Speaker, I yield 2 minutes to the gentleman from California (Mr.
Waxman) for a response.
Mr. WAXMAN. Mr. Speaker, I thank the gentlewoman for yielding this
time to me.
The administration has asked people to take this immunization in the
health care area and first responders have not been doing it. One of
the reasons, according to the Institute of Medicine, is because they do
not feel that they are going to be backed up by the government when
they take the risk of some adverse event.
Now, I want to point out to my good friend, the gentleman from
Louisiana, the chairman of the committee, that he should not
personalize this whole matter and have it on his conscience that we
cannot pass this bill today. Of course, this could have come under the
rules and we could have had opportunity for amendments to consider. But
I want to point out that we asked for smallpox compensation as part of
the bioterrorism bill in 2001, we asked for smallpox compensation as
part of the homeland security bill in 2002, we formally requested an
administration proposal in December 2002, and we proposed our own bill
in February of this year. Only in March, 2 weeks ago, did the majority
respond. And now, of course, it is take it or leave it. Take it or
leave it. That is what we are being told.
This is a bad policy and a bad process by which to protect the public
health. We had negotiations by staff. It might have helped for Members
to sit down and talk this through. And if Members and staff cannot
agree, then we have committees and subcommittees to consider the
details of legislation. And if it is too urgent for committees and
subcommittees to act after all this time, at least let the House
consider a bill and consider various alternatives.
I think we are now engaged in a very bad process, and I think that we
are being asked to take very bad policy that is going to be self-
defeating. Because if many of the nurses do not want it, and the
firefighters do not want it, and the police members do not want it, and
other first responders do not feel it is adequate and they are not
going to be compensated, then we are not accomplishing the goal that we
should for all of us.
The SPEAKER pro tempore. The Chair wishes to inform the House that he
misspoke in response to the inquiry of the gentlewoman from California
(Mrs. Capps). There was 4\1/2\ minutes remaining, not 14\1/2\ minutes.
I apologize to the gentlewoman.
Mrs. CAPPS. Could I beg of the Chair to consider then, because I was
generous in yielding to my colleague, that we be given more time,
because we have several people who still wish to speak?
Mr. WAXMAN. Mr. Speaker, I ask unanimous consent, and I hope the
gentleman on the other side will appreciate this since we were
misinformed on the time, that we be given an additional 5 minutes on
each side.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from California?
Mr. TAUZIN. Mr. Speaker, reserving the right to object, why do we not
take such time as the gentleman consumed. I think the gentlewoman
yielded the gentleman 2 minutes. And what time did the gentleman just
use, Mr. Speaker?
The SPEAKER pro tempore. Two minutes.
Mr. TAUZIN. Mr. Speaker, I would suggest, instead, that we add an
additional 2 minutes to each side, in fairness.
So, Mr. Speaker, I ask unanimous consent that each side be granted 2
additional minutes to make up for the inaccurate call of the Chair.
Mr. WAXMAN. Mr. Speaker, will the gentleman yield?
Mr. TAUZIN. I would be happy to yield to the gentleman from
California.
Mr. WAXMAN. That may well work, but again we have another example of
trying to say no more than a certain amount. And it may be adequate,
but let us be generous to our colleagues and let us be generous to the
first responders.
Mr. TAUZIN. Mr. Speaker, reclaiming my time, I will be happy to just
object and not have any extension, if the gentleman wants to argue
about a couple of minutes.
The SPEAKER pro tempore. Objection is heard.
Mr. TAUZIN. Otherwise, I ask unanimous consent that each side be
accorded 2 additional minutes to make up for the error of the Chair.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Louisiana?
There was no objection.
The SPEAKER pro tempore. Each side will have an additional 2 minutes.
Mrs. CAPPS. Mr. Speaker, could I now inquire how much time is
remaining?
The SPEAKER pro tempore. The gentlewoman from California (Mrs. Capps)
has 4 minutes remaining, and the gentleman from Louisiana (Mr. Tauzin)
has 8\1/2\ minutes.
Mrs. CAPPS. Mr. Speaker, I reserve the balance of my time.
Mr. TAUZIN. Mr. Speaker, I yield 3 minutes to the gentleman from
California (Mr. Cox), chairman of the Select Committee on Homeland
Security.
{time} 1445
Mr. COX. Mr. Speaker, we are here in extraordinary circumstances,
rushing this legislation to the floor as we must, because we are facing
an emergency. We have got to provide compensation to those workers who
may be injured or killed by the smallpox vaccine. The Committee on
Energy and Commerce, of which I am proud to be a member, has done very,
very important work to bring this bill to the floor in these emergency
circumstances. The Committee on Homeland Security, of which I am also
the chairman, has an abiding interest in making sure that our first
responders are capable of dealing with crises such as this. If smallpox
is used against American citizens as a weapon, we have got to be
prepared and we have to be sure that the first responders do not
themselves become weapons, because even though they are not manifesting
the symptoms they are spreading the disease.
Smallpox spreads so fast that it is estimated it will kill at least
30 percent of its unvaccinated victims. Immunity is suspected to have
waned among people who were vaccinated before smallpox was thought to
have been eradicated in the 1970s. Like many of the Members of this
Chamber, I am such a person who has had such a vaccination. Yet I am
probably not protected.
Once contracted, smallpox incubates for 10 to 12 days, causing fever
and nausea. As the symptoms abate, the victim becomes infectious but
does not develop the tell-tale rash for another 2 to 4 days. That is
why it is so important that these first responders be protected.
As we speak, there is no cure for smallpox. The vaccine we have works
well before exposure, but evidence of post-exposure efficacy is only
anecdotal. That anecdotal evidence points to the vaccine only working
if the victim is inoculated within 4 days of contact with smallpox.
Our strategy to counter a smallpox attack depends on our first
responders having already been vaccinated. It is going to be hard
enough for public health officials to react within the necessary window
of time. Administering the vaccine after the detection of a smallpox
outbreak to a mobile American public with little or no immunity will
cause immense problems. Doing so when first responders are not already
themselves protected against smallpox could prove impossible. So far,
only 20,000 nonmilitary personnel have been vaccinated. That is not
nearly enough.
Taking the vaccine means taking a risk. Therefore, we must reassure
our health care workers and our first responders that we understand
this risk and we will stand by them. That is why I support the
gentleman from North Carolina's vaccination compensation legislation,
that is why I support putting this legislation on the floor in this
emergency circumstance as we have, and that is why I support the
leadership of the gentleman from Louisiana in bringing this to a quick
and hopefully positive vote.
[[Page H2487]]
Mrs. CAPPS. Mr. Speaker, I am happy to yield 1\1/2\ minutes to the
gentleman from Ohio (Mr. Strickland), a member of the Subcommittee on
Health.
Mr. STRICKLAND. Mr. Speaker, I am truly puzzled at the leadership on
the other side. We are told that the administration sent this bill over
here as an emergency. Yet I think they know that this bill is likely to
be defeated because of the way it is being dealt with. If it is an
emergency, ought we not to work together so that we can pass a bill?
What is happening here today will result in the delay of this bill
being passed.
The chairman of our committee says, of course, we are for the
volunteers and I believe he is sincere. But if we are for the
volunteers, why do we not listen to the volunteers? In the first 2
months of the administration's smallpox vaccine program, only about
25,000 of a planned 450,000 health workers have received the vaccine.
Last week, three people died from heart attacks after receiving the
vaccine, two health workers and a 55-year-old National Guard member.
All three people had risk factors for heart disease, although it is not
currently known whether the vaccine caused the heart attacks.
As a result of these challenges, a compensation program is needed,
but these health care workers, these first responders are worried that
the bill before us will not adequately provide for education and
screening of the workers who are being asked to take the vaccine. If we
screen the people who are at risk, we may save their lives and we can
save money.
I am disappointed. I think we all know this bill is likely to go down
to defeat, and unnecessarily so. Let us work together in this House. If
not on this bill, what bill can we ever work together on?
Mr. Speaker, I include for the Record three letters, one from the
International Union of Police Associations, one from the American
Public Health Association and the other from the American Federation of
Teachers in opposition to the administration's plan.
International Union of Police
Associations AFL-CIO,
Alexandria, VA, March 27, 2003.
Hon. Ted Kennedy,
Russell Senate Office Building,
Washington, DC.
Dear Senator Kennedy: On behalf of the International Union
of Police Associations, AFL-CIO, representing law enforcement
professionals from more than 500 agencies across the country
and in Puerto Rico, I am writing to voice our concern
regarding the Smallpox Compensation Program currently being
debated in the House.
We urge you to work to ensure that this legislation will
provide the security demanded and deserved by our first
responders who elect to take the smallpox vaccine in order to
better serve a nation at war. We hope this would include
crucial screening and education for both the emergency
personnel and their immediate families.
A mandatory funding provision is also needed to ensure that
the varying states' workers' compensation laws will not
withhold compensation based on the fact that the vaccination
is voluntary.
We also believe that these should be no five-day waiting
period for compensation benefits. Furthermore, we hope to see
some protection for those who elect not to take it.
We are asking more and more of those health care and public
safety workers on the front lines of our nation's homeland
security efforts. Providing them with ample security should
they become disabled in their duties is critical, necessary,
and is clearly and simply the right thing to do. I applaud
your efforts to correct the deficiencies in this proposed
legislation and will be privileged to assist you and your
staff in these efforts.
Respectfully,
Dennis Slocumb,
International Executive Vice President.
____
American Public Health Association,
Washington, DC, March 30, 2003.
Dear Representative: On behalf of the American Public
Health Association (APHA), representing more than 50,000
members from over 50 public health occupations, I urge you to
oppose the H.R. 1463 in its current form and work to
strengthen this legislation before it is brought to the house
floor for a vote.
APHA strongly supports legislation to address current
impediments to the national smallpox preparedness effort,
including lack of compensation for those who become injured,
ill, disabled or die; protections from liability for
volunteer vaccinators and health systems; and adequate
federal resources to enable public health systems to
implement a smallpox vaccination program safely and
effectively.
We are concerned that the current proposal before the House
of Representatives fails to include a number of essential
elements of a workable compensation program that will
adequately protect volunteers and help to assure a successful
program.
We respectfully suggest that the proposed legislation be
strengthened in the following ways:
1. The compensation program should be financed by a
mandatory funding source. It is important that volunteers who
are injured, ill, disabled or die are assured that the
protection they expect from a compensation program will be
realized. We learned a clear lesson from the Radiation
Exposure Compensation Act (RECA) Trust Fund when earlier this
decade appropriations to the fund were not sufficient to pay
claims and hundreds ill from Cold War-era exposure to
radiation were left with IOUs. We have also learned in recent
weeks that we have more to learn about the effects of the
smallpox vaccine. Reports of heart inflammation and failure
in possibly connection with the vaccine warn us that we must
not have all the information at present to make an
appropriate judgment about the amount of appropriation it
will take to ensure that compensation can be guaranteed.
Those first responders who volunteer to be vaccinated deserve
to be assured that adequate compensation will be available
for them.
2. Payment for illness, injury, disability, or death should
include compensation for all lost wages, taking into account
an individual's projected future earnings. Volunteers and
their families should be confident that should they become
unable to work due to disability they will not have to lose
their income for future years, jeopardizing the income
security for themselves and their families. In the rare case
of death, family members, including children, should not be
left uncompensated because of a loved one's sacrifice to
protect others. Death and disability benefits should not be
reduced by wages replaced before death or disability occurs.
Compensation should be 100%, begin without delay, and should
not be subject to a cap.
3. Volunteers should be compensated for adverse events
regardless of the date on which they received the vaccine.
Imposing an artifical time period in which one must volunteer
is contrary to the goal of the vaccination program. Success
should not be measured on the numbers vaccinated a specific
period of time but rather, on whether at any given time we
have a sufficient cadre of vaccinated first responders across
the country. Speed should not be our measure--safety should.
As we have seen from the start of the program, any number of
barriers may result in extending the time in which we expect
vaccinations to occur, including unexpected new possible
complications from the vaccine. Establishing a set time frame
for vaccination eliminates adjustments needed for
unanticipated events.
4. Adequate Funds are needed to ensure that state and local
health systems are prepared. Any proposal should recognize
the need for additional funds to state and local health
departments and health systems to implement the smallpox
program. Current funds for bioterrorism preparedness efforts
have been largely spent and obligated. States and localities
and health systems are preparing for a broad array of
potential threats in a time of great budgetary strain and
increased demand for services. The recent outbreak of Severe
Acute Respiratory Syndrome (SARS) is but one example of how
public health is required to serve a dual role, protecting
Americans from the latest emerging infectious diseases, the
leading causes of death such as chronic diseases, and
preparing for intentional acts of biological terrorism or
war.
Resources are needed to ensure that the important smallpox
preparedness program can proceed without shifting resources
from other bioterrorism preparedness requirements and which
maintaining our important programs to protect Americans from
everyday health threats.
Again, we commend you for recognizing the importance of
this legislation, we urge you to do it thoughtfully, and we
remain ready to implement the smallpox preparedness program
safely, efficiently and effectively.
Sincerely,
Georges Benjamin, MD. FACP,
Executive Director.
____
American Federation of
Teachers, AFL-CIO,
Washington, DC, March 28, 2003.
House of Representatives,
Washington, DC.
Dear Representative: On behalf of the more than 1 million
members of the American Federation of Teachers, including
more than 65,000 healthcare professionals, I urge you to vote
against considering H.R. 1413, the Smallpox Emergency
Personnel Protection Act, under suspension of the rules. This
procedure will prevent the House from consideration of the
Capps-Waxman substitute, which is vastly superior to the
Administration's proposal, H.R. 1413. Capps-Waxman provides
increased education and screening, as well as a realistic
compensation package for those who suffer a serious adverse
reaction.
As you know, most workers have refused to participate in
the smallpox inoculation program. Most believe there has not
been sufficient information about the need for immediate
vaccination. Further, there are serious doubts about the
efficacy of existing education and screening programs, as
well as the lack of a federal compensation program for
healthcare volunteers and innocent victims who may suffer
adverse reactions.
[[Page H2488]]
Since last fall, healthcare unions and other organizations
have been working to develop a bipartisan program that would
address these issues. Our proposal is based on the existing
Department of Defense smallpox program, as is the Capps-
Waxman substitute. The Administration's proposal that is
being rushed to the House floor does not provide the same
protections that are offered in the Capps-Waxman substitute.
education and screening
The need to increase the education and screening of
volunteers is clear. This requires additional funding. The
Department of Defense's comprehensive education and screening
program, for example, screened out 30 percent of those who
were to be inoculated. The recent death of two nurses and the
serious adverse reactions of others demonstrate the
limitations of the existing program, which continues
unchanged under H.R. 1413. Screening out those who are
counter-indicated is essential to prevent adverse reactions
and to protect healthcare workers who volunteer. The Capps-
Waxman substitute addresses this critical need by providing
additional funding for our public health agencies that are
responsible for this program to assure complete education and
screening. The Administration proposal does not.
compensation
Since the smallpox program is a voluntary federal program,
injured individuals should be compensated by the federal
government for the cost of both medical treatment and lost
wages. The Administration's proposal seems to assume that
there is adequate wage compensation through the workers'
compensation system. Unfortunately, we have found only 14
states that can assure workers that they will be covered
under workers' compensation. The remainder of the states are
not sure that this program is ``work related'' since it is
voluntary. Further, innocent third parties who suffer adverse
reactions are not covered by workers' compensation. Also,
many workers or innocent third parties are not covered by
health insurance or may be subject to health insurance
exclusions; therefore, full federal health insurance coverage
for medical treatment is essential. While the Administration
bill does cover health insurance, its restrictive definitions
on disability and caps on financial benefits do not assure
necessary wage replacement. The Capps-Waxman substitute
includes necessary federally financed healthcare and provides
the victims lost wages for the duration of the disability
caused by an adverse reaction.
The bottom line is that a reasonable compensation program
for adverse smallpox reactions should provide federal
compensation for full medical coverage and adequate wage
replacement. There should be no exclusions from this
coverage, such as the five-day waiting period in the
Administration program. This five-day exclusion is a major
concern of many of our members. Further, restrictions in the
Administration's proposals, such as capping benefit payments
and using the 180-day rule forcing workers to choose to get
the vaccination or forgo compensation, are unacceptable. The
Capps-Waxman substitute satisfactorily addresses these
issues.
Finally, this new program must be mandatorily funded and
include a table of injuries in the statute to ensure workers
get compensation, a provision in Capps-Waxman and not the
Administration legislation.
Unfortunately, under the suspension of the rules procedure,
the House will be precluded from addressing these issues. Our
nurses, other health care workers, and first responders are
dedicated professionals and will not shirk their duties to
help the public. However, they deserve the best screening,
education, and compensation program for volunteering to
receive this potentially dangerous vaccine. They deserve a
vote on the Capps-Waxman substitute.
On behalf of the American Federation of Teachers, I urge
you to oppose consideration of H.R. 1413 under suspension of
the rules and demand a vote on the Capps-Waxman substitute.
Sincerely,
Charlotte Fraas,
Director, Department of Legislation.
Mrs. CAPPS. Mr. Speaker, I yield 1\1/2\
minutes to the gentleman from Massachusetts (Mr. Markey).
Mr. MARKEY. Mr. Speaker, who opposes this bill? The nurses, the
police, the fire, the Public Health Association of the United States.
They all oppose it. These are the health care heroes in our country.
The reason that legislation is so important is that these people are
going to be asked to put their lives on the line. They are the first
responders. How busy are we that we can give them 20 minutes of debate,
each side having 20 minutes to debate their fate? How hard would it be
for us to have worked all day Friday to allow amendments to have been
made that represents what the teachers, what the nurses, what the
doctors, what the police and what the fire want for protections? How
hard would it have been for us to have worked all day today if there is
an emergency? Do we not as Members of Congress owe to these heroes
working on a Friday and a Monday so we can debate what their needs are?
Then why is it important? It is important because the adverse
reactions from the smallpox vaccine are a real concern. This bill
coerces volunteers to be vaccinated within 180 days after the
regulations are issued or they lose their rights to lost wages and to
disability payments and even to death payments. They lose them. A
pregnant nurse has only 180 days to be vaccinated after her baby is
born.
This is wrong. Vote ``no'' on this bill. Let us have a full debate on
the House floor with amendments.
Mrs. CAPPS. Mr. Speaker, I yield myself the balance of my time.
I stand here with my colleagues in opposition to this bill, drafted
by the leadership with a kind of arrogance that presumes to know what
is best for our first responders than they themselves know. With their
testimony, with their letters, with their anguish, they implore us to
give them the confidence that they need if they are going to be asked
to take a risk to become a part of the shield to protect this Nation
against terrorist attack.
We need to defeat this legislation for them so that they can have
confidence in this House that we can do what is right, not just for
them but for our Nation in this time of peril. And so I will close by
using some of the language of my colleague, the ranking member of the
Committee on Energy and Commerce, the gentleman from Michigan (Mr.
Dingell) who says in his written statement, ``Right after we defeat
this bill, I hope that we can set about the task of creating bipartisan
legislation that all Members of the House can support. The very people
this bill purports to help, nurses, EMTs, police officers,
firefighters, find this hastily crafted legislation lacking. Why?
Because it fails to address their very significant concerns.''
Mr. TAUZIN. Mr. Speaker, I yield myself the balance of my time.
Let me address the two principal objections to this bill. The first
is that some of the first responders would like more coverage. They
would like more coverage than we currently provide for police officers
and firefighters who take the chances to go out and fight fires and
sacrifice their lives, to go out and fight the criminal elements on the
street and take the bullets and sometimes die and sometimes end up
disabled and have a lifetime of lost wages. They would like to have
more benefits than those individuals. But this is not a management-
labor union discussion. This is an emergency. When the other side asked
for time, for 2 weeks to work with us in a bipartisan fashion to up the
benefits comparable to what police and firemen have, we did that. It is
now in the bill.
The other objection they raise is that, well, this is not due
process. We have taken this bill to the floor under suspension. We are
not taking it through all the committees of jurisdiction. How many
committees claim jurisdiction on this bill, Mr. Speaker? Let us start
with the Committee on Education and the Workforce. We heard from the
chairman who instead worked with us cooperatively to get this bill to
the floor. Judiciary could have a claim on this bill. Judiciary worked
with us cooperatively to get this bill to the floor. Appropriations
could certainly have a claim on this bill, but they have worked with us
to get this bill to the floor.
Why have all the committees worked with us to get this bill to the
floor without all the markups and all the committees that might have
jurisdiction on it? Because they know the emergency. They understand
how important it is to get this bill done and signed by the President
immediately. We have all been briefed. We have all been briefed about
the danger of smallpox terrorism. We have all been briefed about how
easy it would be for a country like Iraq, which we know probably has
smallpox virus, to slip it into this country, to expose someone and
then begin exposing our general population. They know that in 2 weeks,
everyone once exposed becomes a carrier and exposes more people and
that second- and third- and fourth-generation exposure occurs and we
lose 30 percent of the population of America potentially. They know the
danger. They know the emergency. Every committee has cooperated with
us.
For 2 weeks we negotiated with the other side, a fair negotiation to
get this bill in a way that you could accept
[[Page H2489]]
it. We made a dozen changes, raised the amount of the benefits, changed
the percentages to 75 percent for those with dependents. We built a
program as good as any program for anyone in the Federal service, and
we built it as good as the policemen and firemen.
But that is not enough. Enough is never enough. But we do not have
time to quibble about what is enough here. Do not come to this floor
saying that no one supports this bill in the health care community. Let
me read to my colleagues the supporters: The American Hospital
Association, people who will be on the front line taking care of all
these people infected with smallpox if we are not careful; the American
Medical Association, the doctors who have to deliver the care; the
American College of Emergency Physicians who are going to meet every
sick person coming in with smallpox to an emergency room; the Alliance
of Specialty Medicines, representing 160,000 physicians, among many
others who support this bill.
This is an emergency. The administration, the Homeland Security
Office, have told us we need to give this benefit to those people who
will volunteer to take this vaccine to protect themselves and then to
protect us. No one is coerced to do this. This bill does not mandate a
single person take the vaccine. It simply gives the same rich mix of
benefits to those who will volunteer to take this vaccine and protect
the rest of us, to be ready to go into action to prevent the second-
and third- and fourth-generation exposures that could wipe out so many
in this country. It simply says to them, if you volunteer, we give you
this coverage. If you volunteer, if you want to be one of those who
serve this country in this special way, you get the benefits of this
bill.
This bill needs to get passed now. It is an emergency. That is why it
is on suspension. We ought to have the courage to pass it. If it does
not pass today, it is only because somebody on the other side thinks
enough is never enough and you want to quibble about numbers when the
country is at stake.
Mr. Speaker, this bill ought to get passed. It needs to get passed
now.
Mr. HOLT. Mr. Speaker, on September 11, 2001, as thousands fled over
lower Manhattan during the terrorist strikes, many ran towards the
burning buildings.
These brave men and women were first responders--the police,
firefighters, and emergency medical personnel who risk their lives
every day to protect their fellow citizens.
It would seem like the least we could do for them would be to not
only applaud their efforts, but also provide them with support they
need so they can do their jobs even better.
Unfortunately, this Congress has found it appropriate not to support,
but to shortchange these everyday heroes.
A month and a half ago, we finally managed to pass the FY03 spending
bill. Many of us here in this body sought to add vital funding for
first responders, but we were denied. Our first responders were denied.
Today, apparently, this body is poised to again deny our first
responders--in this case, the men and women who will first respond to
the unthinkable: a smallpox attack.
The need for the president's smallpox vaccination program is
questionable, but now that the program exists, there is no doubt that
we need to address compensation for those who volunteer for and are
injured by the vaccine. In terms of negative side effects, this
vaccine--essentially the same as the original developed in 1796--is
perhaps the most dangerous one we currently have. In this most initial
wave of vaccinations, we have already seen several serious injuries and
even a few deaths possibly attributable to the vaccine.
That is why adequate compensation for vaccine injury is so crucial.
Our first responders want to know that if they take the brave step of
volunteering for the vaccination and get sick or die, they and their
family will be taken care of.
The absence of a good compensation program has doubtless contributed
to the snail's pace that the president's vaccination program has taken.
Only 25,000 of the 500,000 in the ``initial wave'' of healthcare
workers have actually been vaccinated.
The bill before us will not assure these workers that they will be
adequately compensated. The lifetime cap of $262,100 is small change
for someone who is permanently disabled.
This bill also only covers workers vaccinated during a specific short
time period after implementation. What kind of an incentive is this for
new healthcare providers to get vaccinated in the future?
As the American Nurses Association has written, ``the bill does not
provide adequate education, prescreening, surveillance, and
compensation.''
Mr. Speaker, I have been working in this Congress to show my strong
support for our first responders. Today I will continue to show this
support by voting ``no.''
Ms. JACKSON-LEE of Texas. Mr. Speaker, I cannot support H.R. 1463,
the Smallpox Vaccination Compensation Act. Our nation's first
responders and health care workers take risks every day in order to
serve the public good. Our firefighters face the risk to their lives
every time they are called to duty. Health care workers come into
contact with deadly germs on a regular basis. Even now, with the threat
of bioterriorist attacks upon them, they are not flinching. They are
there at work, serving the public good and putting themselves in harm's
way.
And now that it seems that on top of the physical risks they are
taking, the Republican leadership has decided that they and their
families should also shoulder the financial risk of the fight against
terrorism. We are asking that they serve as a kind of barrier,
protecting the American public against the horrors of smallpox. If the
virus were somehow leaked into the U.S., of course we would expect our
first responders to be there at the sight of the emergency, and
infected individuals would end up at our hospitals. We are trying to
encourage those who work on the front lines to come in and get
vaccinated, so that they do not get infected and pass the virus on to
their families and the public.
But the vaccination program has been an utter failure so far, because
the smallpox vaccination itself also carries with it moderate danger.
As scientists have been telling us, the vaccination can make some
people sick, or can even lead to death in rare circumstances. Whereas
the death rate can be reduced or eliminated by good education and
screening of people who might be at risk for complications, some of
those who are vaccinated will become ill. They may have to be
quarantined; they will miss work, perhaps for a long time. In today's
economy--with medical costs what they are--this could be devastating,
especially for someone with a family to support. Too many of our first
responders and health workers have decided they cannot take that risk,
and are asking that the Federal Government that is in charge of
protecting the homeland--assume that risk for them. That seems fair
enough.
The author of the bill before us today recognized the problem, and
gave the bill the right name, but just didn't do a good job of matching
resources with the needs out there. The problem with that is that if we
don't give adequate assurances to people that they will be covered for
any unfortunate episodes--they will not get vaccinated. Then in 6
months, or a year, we will find ourselves in this same situation--
totally vulnerable to a smallpox attack. We cannot afford to take that
risk. We must get it right the first time.
We are hearing from group after group of experts and people effected
by this, saying, ``Do not support this bill. It is not enough.'' The
American Nurses Association, the Association of Firefighters, the
American Federation of State, County and Municipal Employees--and the
list goes on. These are not the money-grubbing types; they are humble
civil servants who deserve our support. They are saying that this
compensation package may not be enough to entice them to join the
voluntary smallpox vaccination program. If they do not sign up, they
will be vulnerable, and so will the American people.
The Democratic Capps-Waxman substitute would have gotten the job
done. The Republican bill does not ensure adequate funding is available
to compensate health care workers and other first responders injured by
the smallpox vaccine. The Capps-Waxman substitute provides for
mandatory funding for this program.
The Republican bill would pay only 66.6.% of an injured worker's lost
wages with a lifetime cap of $50,000. The Capps-Waxman amendment would
pay 66.6% of lost wages up to $75,000 per year for as long as the
worker is disabled. Workers with dependents would receive 75% of lost
wages up to $75,000 per year for as long as the worker was disabled.
The Republican bill would not compensate health care workers and
other first responders for lost wages for the first five days they are
injured. The
[[Page H2490]]
Capps-Waxman substitute would ensure that health care workers and other
first responders who are out of work for longer than five days would
have their unreimbursed lost wages compensated from the first day they
missed work.
The Republican bill provides that a health care worker or other first
responder who is killed by the smallpox vaccine receives only a flat
death benefit. The Capps-Waxman substitute would pay a death benefit as
well as any lost wages for workers who have dependents when they die.
Finally, the Capps-Waxman substitute has a specific authorization for
funding for States to educate and screen potential vaccinees. The
Republican bill does not. This is a critical component. There have been
several deaths recently that occurred within a week or so after
vaccinations. We must at the very least provide adequate education to
people we want to get vaccinated to see if they are at risk for
vaccine-related disease. They deserve that.
I will vote against H.R. 1463, and urge my colleagues to do the same.
Mr. LEVIN. Mr. Speaker, since September 11, we have begun to prepare
for a number of events that once seemed unthinkable. One of them is an
epidemic of smallpox, a deadly disease that we thought we had erased
from the earth. The best way for us to protect ourselves against that
is to vaccinate our first responders--the nurses, policemen, and
firefighters that we would depend on to recognize a smallpox outbreak
and quickly act to protect all of us against a disease that spreads
rapidly and kills a third of its victims.
But in the three and a half months since President Bush announced
plans to vaccinate 500,000 first responders, fewer than 25,000 have
volunteered. In Michigan, where we had a goal of vaccinating 5,000
people, fewer than five hundred people have been vaccinated.
The smallpox vaccine has the worst record of negative side effects,
including death, of any vaccine in our history. Experts estimate that
one in a million people vaccinated will die, and many more will become
ill, some seriously. Sadly, three people who volunteered to be
vaccinated have already died.
These are sobering statistics, but it is not the personal danger that
is keeping first responders from volunteering. Every day, our police,
firefighters, and health care workers risk injury and death to help
others. But giving them the smallpox vaccine without proper education,
pre-screening, and surveillance doesn't just endanger them--it
endangers all of us. When smallpox vaccination was still widespread,
nearly 20 percent of infections from the vaccine came from secondary
contact. And asking first responders to be vaccinated without a safety
net if they become ill, are disabled, or die endangers their families
and those who depend on them for support.
The Republican leadership says we don't have time to have a
discussion with nurses, policemen, firefighters, and other first
responders about what kind of program they need to feel safe because
preparing for bioterrorism is an emergency. But if we don't have that
discussion, we will have done nothing to address the emergency.
Receiving the smallpox vaccine is voluntary for first responders.
First responders don't think the current program is safe, so they are
declining the vaccine. That's why our current program isn't working and
why after months of saying a vaccine injury compensation system wasn't
necessary, House Republicans are willing to bring up a bill. But if the
bill we pass doesn't make first responders feel safe, they still won't
volunteer to be vaccinated, and we'll be right back where we started,
except we'll have wasted a lot of time on a program we already know
will be ineffective.
Wouldn't it make more sense to get it right the first time? By voting
against this bill, which the International Union of Firefighters, the
American Nurses Association, and the International Union of Police
Associations say does not address the concerns that have prevented them
from being vaccinated, I hope to give the House an opportunity to sit
down with first responders and craft a workable solution. It is
precisely because this is an emergency that we don't have time to pass
unworkable legislation, wait for it to fail, and start again.
I regret that we did not have the opportunity to vote on a real
solution tonight. I hope we can move immediately to pass a real
solution, without wasting any more time on political gamesmanship.
Mr. CARDIN. Mr. Speaker, I rise in opposition to H.R. 1463. The House
should be considering a bill today that responds to two basic
questions: how do we encourage first responders--nurses, emergency room
doctors, police, and firefighters--to volunteer for smallpox
vaccinations; and second, how do we compensate them for any injury,
disability or fatality they suffer in the event of an adverse reaction.
Instead, the bill we are voting on--with no opportunity to amend or
offer a substitute--accomplishes neither.
Last week, a 57-year-old nurse from my own state of Maryland died
within 5 days of receiving the smallpox vaccine. The CDC is still
investigating the nexus between the vaccine and her death. But to date,
12 health care workers who received the vaccine have experienced severe
heart problems within day of inoculation, and 3 have died. These deaths
and complications are sending waves of panic through the health care
community.
On January 24, the President and HHS Secretary Thompson called for
450,000 first responders to be inoculated against smallpox. Today, as
we come to the floor to consider this bill, the Administration has
reached only 5 percent of its goal. The response has been dismal not
because these workers lack dedication to public health and safety, but
because they have justifiable doubts that this vaccine is safe and that
if they are injured or die, they and their survivors will be
compensated fairly.
Initial risk assessments by HHS did not come close to estimating the
percentage of workers who would be at risk of illness or death from the
smallpox vaccine. Many individuals are well on their way to heart
disease, even though they have no symptoms and feel fine. Many
Americans who have high blood pressure and diabetes are completely
unaware of their condition.
Both high blood pressure and diabetes increase the risk for heart
disease. Unfortunately, these serious problems usually don't cause
symptoms until they've already done their damage. They silently harm
many organs, including the heart and kidneys. Often people are not
diagnosed with these problems until it is too late to prevent damage.
By the time symptoms are present, the condition may be critical.
Scientific studies have indicated that for every 100,000 who are
immunized against smallpox, 2 or 3 will die. But the U.S. has only
immunized 29,000 persons so far, and three deaths have already
occurred. Why the decrepancy? HHS's initial risk assessments were based
on immunization of much younger subjects, who are at far lower risk of
heart disease. But the three workers who died were all in their
fifties, and the average age of nurses in our workforce is 45. Those
who would be immunized under the president's plan are at much higher
peril of adverse reactions.
The CDC had already announced a temporary medical deferral for
persons diagnosed with heart disease, and late last week it expanded
that category to include individuals with three of more ``major risk
factors'' for heart disease, including smoking, diabetes, high blood
pressure and high cholesterol. Small wonder that the participation rate
among our health care workers is so low. It is likely to remain low
until workers gain confidence that government has a better
understanding of risk factors.
Our nation's first responders should be protected against smallpox.
But a vaccination program can only succeed to the extent that
government succeeds in assuring workers that potential side effects
will be minimized, and that they will be treated fairly and compensated
adequately in the event of illness, disability, or death.
The underlying bill fails these tests. It limits payments for lost
income to any annual maximum of $50,000. There is no wage replacement
for those who suffer permanently disability or death. Why would nurses,
who earn an average salary of $40,000, risk their families' future for
so little?
The Burr bill won't begin replacing lost wages until 5 days have
passed. A national program ought to provide first dollar compensation,
not last-resort coverage. The Burr bill also imposes a deadline of 180
days for workers to qualify for compensation. Those vaccinated after
that time would not qualify. How can we know how long it take our
States and localities to vaccinate a sufficient number of volunteers?
In addition, the bill provides no funding for education, screening,
or surveillance. The National Association of County and City Health
Officials has estimated that to provide pre-vaccination education and
screening, and surveillance for adverse reactions would cost between
$154 and $284 per person. If the Administration plans to vaccinate
500,000 workers in Phase I and another 10 million in Phase II, we are
taking about a $2 billion unfunded mandate to our localities.
Mr. Speaker, our towns' and cities' budgets are already strained as
they conduct other bioterrorism preparedness activities. Our localities
do not have sufficient funds to prepare for chemical, biological and
radiological terrorism, and more than half of our local governments
have reported that smallpox and other bioterrorism planning has
negatively affected other local public health services. They are
delaying programs, turning down community requests, and reducing the
frequency of client visits.
Mr. Speaker, we have asked America's first responders to put their
lives on the line to protect the rest of us. The compensation we offer
[[Page H2491]]
must be adequate; it must be immediate; it must be guaranteed. I
believe the House is united in its appreciation of an support for our
first responders. Legislation to compensate them for their illness,
disability or death should reflect that level of support. I am
disappointed that the bill before us does not do that. I urge the House
to reject this bill and I call upon the leadership to return with
legislation that will provide a meaningful compensation program for
those on the front line against bioterrorism.
Ms. SCHAKOWSKY. Mr. Speaker, the Smallpox Emergency Personnel
Protection Act (H.R. 1463) is being rushed to the House floor today for
a vote under suspension, denying us the opportunity to amend this bill
to ensure that the compensation we offer our first responders is both
adequate and meaningful. I have serious concerns both about the
deficiencies in H.R. 1463 and the process by which it was brought to
the floor. This is an ill-considered bull that fails to provide
adequate compensation for persons volunteering for the smallpox
inoculation and, therefore, will undermine the very goal of encouraging
first responders to participate in the vaccine program. Three recently
immunized military personnel and civilian health care workers have died
of fatal heart attacks and Federal health experts are investigating at
least 15 more cases of possible cardiac reactions to the immunization.
Given recent events such as these, the limitations of H.R. 1463 will
likely result in even more refusals by first responders to volunteer
for the smallpox vaccine.
H.R. 1463 fails to offer meaningful compensation, does not have
guaranteed funding, and attempts to coerce first responders into
getting inoculated. It will not work. That is why it is opposed by many
organizations representing first responders, including the American
Nurses Association, International Union of Police Associations,
International Association of Firefighters, American Federation of
Teachers, American Public Health Association, Infectious Diseases
Society of America, American Federation of State, County and Municipal
Employees, and the Service Employees International Union.
H.R. 1463 is based on the false assumption that nurses, firefighters
and other first responders will be compensated by other benefit
programs, such as workers' compensation and health insurance. In the
case of smallpox, however, there are no guarantees that a person
injured by the smallpox vaccine will be covered by workers'
compensation or will be adequately insured. In fact, there are only 14
States where it appears at all certain that claims for benefits will be
honored by the State workers' compensation program, based on a recent
survey by the AFL-CIO. As a result, those injured by the smallpox
vaccine may receive far less total compensation than other first
responders currently covered by their Public Safety Officers Benefit
program.
If, for example, under H.R. 1463, a 30-year-old nurse were
permanently injured or killed as a result of the vaccine, she or her
survivors would be eligible for a one-time lump sum payment of
$262,100. This amount is equivalent to 5 years' pay for the average
nurse. This is not adequate compensation for a nurse unable to work,
her family or her survivors. Partial and temporary disabilities as a
result of the smallpox vaccine are also arbitrarily capped with a
lifetime payout at $262,100. Compensation should be provided to workers
for the duration of disability or to survivors' families until the
spouse remarries or the children are no longer minors. If workers are
worried about their economic security, and that of their families, they
for good reason will continue to be reluctant about getting the
vaccination.
Although the compensation offered through H.R. 1423 is scant at best,
our first responders cannot even rely on benefits offered because there
is no guaranteed funding. H.R. 1423 is funded by discretionary spending
and would be subject to the annual appropriations process. Funding for
compensation and medical care should be mandatory spending, similar to
the Vaccine Injury Compensation Program for injuries due to childhood
vaccines. Workers should not have to worry each year about whether
there will be an adequate appropriation to provide promised benefits
and medical care.
As if lack of compensation and funding did not make this bill already
untenable, H.R. 1423 attempts to coerce workers into getting the
vaccine. Current workers must receive the vaccination within 180 days
following the issuance of interim final regulations in order to be
eligible for compensation. New hires must be vaccinated within 120 days
of hire to be eligible. There is no exception in the event that the
public health department is unable to meet the deadline or a worker has
a temporary condition that prevents immediate vaccination, such as
pregnancy or the presence of an infant at home. Smallpox vaccination
should be voluntary. When legislation only allows first responders to
be eligible for compensation if they are vaccinated within months of
the bill's passage, we know that people on the front line are being
manipulated into getting the vaccine and getting it quickly.
Our first responders deserve better. They deserve a full and fair
smallpox compensation package. Unfortunately, we do not have the
opportunity to correct the deficiencies in H.R. 1463 because we are
denied the opportunity to consider amendments. I oppose H.R. 1463 and
look forward to voting on an effective alternative when the bill is
brought under a rule that allows for a full and fair opportunity for
amendment.
Mr. UDALL of Colorado. Mr. Speaker, I regret that I cannot support
this bill.
When President Bush called for the voluntary vaccination against
smallpox of 500,000 health care workers and other first responders last
December, many criticized the plan for being incomplete. Not only did
it not include a federal compensation fund to help those injured by the
vaccine or their survivors, but the plan did not provide adequate
education, prescreening, or surveillance. The relatively few numbers of
health care workers and first responders who have received the
vaccine--only about 21,700 to date--indicate that there are real
concerns about the plan's shortcomings.
After all, the smallpox vaccine uses a live strain of the virus. The
vaccine has the worst record of negative side effects of any vaccine in
the world. So it is critical that those being vaccinated understand the
risks involved and be prescreened for conditions that require them to
avoid the vaccine. The recent deaths of a nurse, a nurses aide, and a
National Guardsman after their vaccinations only underscore this point.
Like the President's plan, this bill has serious shortcomings. In
particular, I'm concerned that the compensation program is not
comprehensive enough and that it does not provide adequate education
and safeguards. I believe that the House must consider improvements to
this bill. But the Democrats are being denied the opportunity to offer
amendments to do that.
For these reasons, Mr. Speaker, I must oppose this legislation in its
present form.
Mr. STARK. Mr. Speaker, I rise in opposition to H.R. 1463, the
Smallpox Emergency Personnel Protection Act.
This Republican legislation has a lot more to do with public
relations than protecting our first responders so that they can do
their job to protect the rest of us. No one doubts that the possibility
of a terrorist attack is very real. Yet, Republicans are asking
Congress today to short change those Americans on the front lines here
at home--our doctors, nurses, police officers, fire fighters and others
willing to risk both serious physical harm and financial ruin.
Congress has a great responsibility to provide security to these
brave and selfless Americans. The smallpox vaccine is the most
dangerous vaccine in current use. Thus, the decision to become
inoculated is not one to be taken lightly. Those who are willing to
step forward and receive inoculation to assure that they'll be there to
protect others if the need arises, do so at a risk to their lives and,
by secondary transmission, to the lives of loved ones. At a minimum, we
need to assure these people that they and their families have
affordable access to healthcare and won't confront financial hardship
if they have an adverse reaction to the vaccine.
We are not talking about a small number of people at risk. Experts
estimate that out of the 10 million healthcare and first responders who
the Administration is requesting to volunteer for this smallpox
inoculation program, approximately 10,000 will experience serious,
though not life-threatening reactions, upwards of 520 will experience
potentially life-threatening reactions and it is anticipated that 5 to
10 people will die. These estimates do not include those individuals
who may be secondarily exposed to the live virus by being in contact
with an inoculated individual. Furthermore, just in the last week we've
discovered something previously unknown about the smallpox vaccine; it
may cause heart attacks in people with particular cardiac conditions.
The Administration's Smallpox Vaccine Compensations bill is
inadequate in numerous ways. Among its inadequacies, it:
Fails to provide adequate funding to ensure that state and local
public health officials can implement needed pre-inoculation education
and screening and post-inoculation surveillance programs;
Ignores the need for work place protection standards for individuals
who refuse to volunteer for the vaccine program;
Provides no requirement that health insurance companies guarantee
health insurance coverage for adverse medical events that occur from
participating in this voluntary program;
Fails to guarantee immediate access to medical care for volunteers
who have no insurance or who are not eligible for Medicaid or Medicare;
Provides a wholly inadequate death benefit and a benefit for
permanent and total disability limited to $262,100. This in no way
replaces
[[Page H2492]]
the lifetime income that will be lost to the families of the brave
individuals who volunteer for this inoculation and are adversely
affected;
Fails to compensate individuals who become sick and miss work for 5
or fewer days;
Doesn't guarantee that the compensation program is even funded.
Rather than making it a mandatory appropriation which would assure that
the program is fully funded, it is discretionary spending; subject to
the vagaries of the annual appropriations process.
These many inadequacies have lead every major organization
representing nurses, fire fighters, and other frontline personnel to
oppose the legislation. These organizations include the American
Nursing Association (ANA), the American Public Health Association
(APHA), the International Association of Fire Fighters, the Infectious
Disease Society of America and the Service Employees International
Union (SEIU).
My colleagues, Representatives Henry Waxman and Lois Capps, have
introduced legislation (H.R. 865) to create a smallpox inoculation
compensation program that would meet the needs of these brave
volunteers. Unfortunately, the Republican Leadership has forbidden that
bill to be considered by the full House. For that reason, we are forced
to vote NO today and try to get the Republican Leadership to recognize
that providing true protection to our emergency personnel who have
volunteered to become inoculated against smallpox is a priority for
this Congress. We need to do the job right!
I urge my colleagues to vote against H.R. 1463 today and insist that
a compensation bill that truly protects the interests of these
volunteers for the smallpox inoculation program be returned to this
Chamber for a vote and passage.
Mr. TOWNS. Mr. Speaker, I rise today in opposition to H.R. 1463.
While it offers significant liability protections to those entities
that are responsible for administering the vaccination program, it
simply does not provide the protection required by frontline health
workers who have been asked to volunteer for the national smallpox
vaccination program. More to the point, we have had three recent
deaths, which can be reasonably traced to the vaccinations, and several
other workers and military personnel have experienced cardiac-related
problems after being vaccinated.
All the major unions--Service Employees International Union, American
Federation of Teachers, American Nurses Association, International
Association of Firefighters, International Union of Police
Associations--who represent health workers and first responders, have
declared that this legislation fails to provide an adequate
compensation program. Thus far, only 14 states have been able to
definitely assure workers that workers' compensation programs would
cover them. Further, innocent third parties who suffer adverse
reactions are not covered by workers' compensation. In the '60's, more
than 20% of the adverse vaccination events occurred in secondary
contacts. Therefore, the vaccination program poses a risk not only to
first responders, but also to their patients and their families.
Moreover, public health experts, like the Centers for Disease
Control's Advisory Committee on Immunization Practices, now question
whether anyone with three or more ``major risk factors'' for heart
disease, including smoking, diabetes, high blood pressure and/or high
cholesterol should receive the smallpox vaccine. Given the cost of
screening for the above factors, it is particularly troubling that
there is no guaranteed funding for medical screening, education or
surveillance. Our armed services personnel received personalized
education, and free and confidential prescreening prior to the
administration of the vaccine. This process resulted in one-third of
the potential recipients being screened out of the program. We should
offer the same education and screening opportunities to our nurses and
first responders.
Finally, Mr. Speaker, even though this bill falls short on a
compensation and education and screening program, I remain hopeful that
the Emergency Supplemental will at least provide adequate funding for
States and localities to administer this program when and if an
adequate compensation program is put in place.
Mr. SENSENBRENNER. Mr. Speaker, the bill before the House today, H.R.
1463 contains several provisions that are within the jurisdiction of
the House Committee on the Judiciary as provided in Rule X of the Rules
of the House of Representatives for the 108th Congress. The Committee
on the Judiciary would normally proceed under regular order to examine
legislation containing such provisions within our jurisdiction and take
appropriate actions in Committee meetings.
However, the Bush Administration has maintained that there is a
pressing need for this legislation's swift passage in order to provide
first responders and other emergency personnel with all due
encouragement and assurances to participate in ongoing smallpox
vaccinations. Because of the exigent circumstances, the Committee on
the Judiciary, like the Committee on Energy and Commerce and the
Committee on Education and the Workforce, has elected not to hold a
hearing or markup on this legislation and has allowed it to proceed for
consideration by the full House. The Committee's deferral of action
should not be interpreted as any lack of jurisdiction over or interest
in H.R. 1463.
The primary purpose of the bill is to establish a compensation
program for emergency personnel directed to receive smallpox vaccines
pursuant to authorities granted by the 107th Congress in legislation
establishing a Department of Homeland Security. This new program is to
be established under the Public Health Service Act and is to be under
the direction and control of the Secretary of Health and Human
Services. The bulk of the provisions in Section 2 of H.R. 1463
dedicated to establishing the new compensation program are outside the
scope of the Judiciary Committee's jurisdiction.
However, H.R. 1463 also contains provisions related to judicial
review of determinations made by the Secretary of HHS under the Act and
provisions modifying existing statutes concerning the liability of the
United States and remedies available under the Federal Tort Claims Act
(Chapter 171 and section 1346(b) of Title 28 United States Code) for
covered persons suffering injury resulting from smallpox vaccinations.
These provisions are clearly within the Rule X jurisdiction of the
Committee on the Judiciary.
For example, Section 2 of H.R. __ adds new provisions titled ``(e)
Review of Determination'' that affects the role of the courts and
established review procedures mandated by the Administrative Procedures
Act--both within the Committee's jurisdiction. Furthermore, Section 3
of H.R. 1463 amends 42 U.S.C. Sec. 233(p) to assume liability for the
government relative to a new category of acts and omissions by those
acting within the scope of their duties as part of the smallpox
vaccination program. Section 3 of the bill also modifies the
requirements for exhaustion of remedies, statute of limitations,
offsets, and exclusivity of relief available for tort claims in federal
district courts arising from smallpox vaccinations administered under a
declaration by the Secretary of HHS. These provisions of H.R. 1463 are
also clearly within the Rule X jurisdiction of the Committee on the
Judiciary.
If the Committee on the Judiciary had the luxury of unlimited time,
we would certainly seek the normal referral of H.R. 1463 to examine
these and other provisions further and consider any appropriate
changes. However, as I stated earlier, the Administration has pleaded
the need for swift passage and implementation of this new compensation
program to encourage necessary smallpox vaccinations. The
Administration and many of my colleagues believe that the importance of
these vaccinations to the security of our homeland against biological
attack outweighs considerations about the normal legislative process in
this case. I do not dispute that assessment, and therefore as Chairman
of the Committee on the Judiciary I have agreed that this bill should
move forward in an expedited fashion without the normal review by our
Committee.
Mr. UDALL of New Mexico. Mr. Speaker, I rise in opposition to the
Small Pox Vaccination Compensation Fund Act.
We should give pause about voting for a smallpox bill that does not
safeguard the health, safety and livelihood of workers asked to
volunteer for the smallpox vaccination. This bill is opposed is by a
number of groups, including the International Association of Fire
Fighters and the American Nurses Association.
There has been a great reluctance among health care workers and first
responders to risk the loss of health and income without an adequate
safety net for themselves and their families. While the legislation is
promised on the assumption that workers will be eligible for workers'
compensation in the event of an injury, the reality is that, in most
states, workers cannot depend on this. In fact, there are only 14
states where it appears certain that claims for benefits will be
honored by the state workers' compensation system.
Therefore, workers who are permanently and totally disabled will be
eligible only for this bill's maximum benefit of $262,100. This
represents about five years' wages for the average nurse. For a worker
who becomes partially disabled either temporarily or for life, the
maximum benefit payable is only $50,000. If the aim of the legislation
is to encourage workers to be vaccinated, this bill will not do the
job. Workers will continue to be reluctant to be vaccinated in the
absence of assurances that the economic security of their families will
not be jeopardized.
I also object to the bill's requirement that workers receive the
vaccination within 120 days of the date regulations are issued. Any
worker who is vaccinated under the Secretary's declaration must be
eligible for federal
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compensation. It is punitive to deny compensation to a worker who
participates at a late date.
The legislation fails to ensure that the smallpox program will be
carried out safely, in stark contrast to the program in place for
military personnel. The bill does not establish any standards for
ensuring that workers are properly educated and medically screened
prior to volunteering for the vaccination. A careful program to screen
out workers with contraindications will not only save lives, it will
reduce the amount of federal money needed for compensation. The
legislation also fails to include requirements for monitoring those who
are vaccinated to catch adverse reactions before they develop into life
threatening complications. There is also no funding for state and local
public health departments to carry out the program safely.
Another significant flaw in the bill is that funding for the
compensation program is not mandatory. Workers who have lost their
health and livelihood should not have to wage a fight for compensation
each year during the appropriations process.
The legislation also fails to include a table of injuries that
ensures that workers will be awarded compensation quickly. After years
of experience with the smallpox vaccine, there are injuries, that occur
within specific timeframes, that are known to be caused by the vaccine.
This schedule of injuries must be included to ensure that compensation
will be quick and certain. Otherwise, workers cannot be certain before
receiving the vaccine that the most likely serious injuries will
qualify for compensation.
Unfortuantely, but not surprisingly, the House Rules Committee has
denied an opportunity for an alternative measure to be on the floor.
Had the Capps-Waxman substitute been allowed, I would have supported
it. In contrast to the proposal designed by the Bush administration and
introduced by Representative Burr, the Capps-Waxman substitute includes
measures to safeguard the health and safety of workers asked to
volunteer for the smallpox vaccination program. Moreover, the Capps-
Waxman substitute better addresses the concerns of workers who fear
that a serious injury or death from the smallpox vaccine would lead to
economic catastrophe for themselves and their families. As a result,
the Capps-Waxman substitute will provide for a safer and more effective
smallpox vaccination program.
The Burr legislation is deeply flawed and I urge my colleagues to
oppose it.
Mr. BURR. Mr. Speaker, this legislation, ``The Smallpox Emergency
Personnel Protection Act,'' is another positive step towards preparing
our citizens for a bioterrorist attack.
For more than 2 years, I have been working on legislation to
strengthen and build our nation's public health system. The first bill
was signed into law in 2000 and established grant programs to address
core public health capacity needs. The second bill was last year's
bioterrorism legislation. In part, that legislation built on the grant
structure created in 2000 and sent a significant amount of money to our
public health infrastructure. That money is currently funding basic
needs such as computers and Internet access for public health
departments and more specific needs such as decontamination chambers.
Needs that are essential for providing public health care services and
critical for bioterrorism preparedness.
On January 24 of this year, Secretary Tommy Thompson asked hospital
workers, police officers, firefighters, and other public officials, to
volunteer to receive the smallpox vaccination. Understandably, the
reception was lukewarm. Nurses and physicians were concerned about the
side effects of the vaccine and wanted to be compensated for any
medical care or lost employment they incurred as a result of their
vaccination. Hospitals were worried about liability. And public health
departments were worried about the cost.
In response, we have H.R. 1413. This legislation addresses the
concerns of all of those individuals. We will now compensate vaccinated
individuals for lost wages and medical expenses. Additionally, if they
suffer a permanent disability, or, in the very unfortunate and unlikely
case, death, we will give them the same amount of money that police
officers and firefighters receive if killed in the line of duty. The
legislation clarifies that if a vaccinated individual infects other
individuals--they too are eligible for those benefits. Finally, the
legislation amends the Homeland Security Act to ensure that hospitals,
pharmacists, public health departments and any other involved
individuals will not be liable for properly vaccinating people who then
suffer adverse reactions.
One very important point about this legislation is that it continues
to give the Centers for Disease Control and Prevention, State and local
health departments, and hospitals the flexibility they need to
correctly vaccinate thousands of people. In light of the unfortunate
situation in Maryland, concerns have been raised about vaccinating
individuals with heart conditions. The CDC Director promptly responded
by recommending that those individuals be screened out of the
vaccination pool. We all want this program to be successful, and
success depends on flexibility and Federal Government support when
individuals suffer adverse reactions.
Let me end by saying that I am extremely proud of North Carolina and
its response to Secretary Thompson's request. Thus far 26 hospitals
have vaccination plans, 875 individuals have been vaccinated, and many
more have volunteered. I believe that this legislation will reassure
all of the current and future vaccination recipients in North Carolina
and around this country that the Federal Government wants this program
to work and backs up our request through compensation benefits.
Ms. PELOSI. Mr. Speaker, I had hoped to come to the Floor today with
a bill I could recommend to my colleagues on both sides of the aisle.
We had been working together, over the past few days, in serious
negotiations over what would be required of a vaccine program in order
for our nurses and first responders to feel secure enough to put their
health, their lives, and their livelihoods on the line by taking a
smallpox vaccination.
There was progress on some features that are reflected in this bill.
We are grateful for that.
But unfortunately, those talks broke down last week and we find
ourselves instead in a process that restricts our discussion of this
issue and does not allow us to consider a Democratic alternative--
proposed by colleagues Lois Capps and Henry Waxman--that is based on
the recommendations of the nurses, the firefighters, the police, the
emergency medical technicians, and other first responders.
They are being asked to step forward and take a vaccination that has
the potential for dangerous side effects--including the possibility of
death.
Make no mistake about it. The votes that count are not the votes that
we will cast here in this body. The votes that count are the votes of
those men and women who are nurses, medical workers, firefighters,
EMTs, police officers, and others who will go to the state health
department and roll up their sleeves and take a risk to help improve
the nation's prepareness against terrorist attack.
These are not people who avoid risk. They take risks almost every
day. You know who they are. They are the caregivers who tend to the
sick, rescue the victims, and walk the streets to make us safer.
They are the night-duty emergency room nurses who crawled through the
rubble of the Federal Building in Oklahoma City to try to find
someone--anyone--who was still alive.
They are the firefighters who ran up the stairs instead of down the
stairs in the World Trade Center to help the last of the people trapped
in that horrific nightmare to escape.
They are the police officers who walk the beat every day and who risk
their lives to keep us safe.
They are also mothers and fathers, caregivers for elderly parents,
and breadwinners for their families. And they have a very human and
understandable desire to protect their families in case something goes
wrong.
It is an unfortunate fact that some of the people who will take the
smallpox vaccine will suffer serious adverse effects that could cause
them to be unable to continue their current job, see their pay reduced
or--if they were to become totally and permanently disabled--lose the
ability to work altogether.
They could even lose their lives. We have all seen the news reports
of the National Guardsman, the nurse's aide in Florida, and the nurse
on the Eastern Shore of Maryland. Each of them received the vaccine,
but then later died of cardiac arrest.
We don't know, yet, whether there is a direct link between the
smallpox vaccine and these heart problems. The Centers for Disease
Control have not been able to definitively rule a connection in or out.
But the CDC has now recommended that anyone who has a known heart
ailment not receive the smallpox vaccination.
And New York State and Illinois--as well as a number of
municipalities--have temporarily suspended any further vaccinations
until there is a more thorough investigation.
The bottom line is, whether any connection is proven between the
smallpox vaccine and heart disease, there will ultimately be injuries
and deaths from the vaccine. There is no question of that.
The choice of whether to get vaccinated is up to the nurses and the
other first responders themselves based, in part, on the adequacy of
the vaccine program we provide for them.
That is why we believe an adequate smallpox vaccine compensation
package has to have a clear education component so that the health care
workers and other first responders will know what the most likely side
effects will be and what the effects could be on their families.
Legislation of this kind should have the strongest possible pre-
screening program based upon the most up-to-date information.
[[Page H2494]]
It should have an aggressive monitoring program so that health
experts can follow up the vaccinations and look out for patterns of
adverse reactions so we can adjust the pre-screening program.
And it should provide a level of financial security so those who take
the vaccination can be assured that their families will receive
compensation if they become disabled or lose their lives protecting
Americans from the horrific effects of a terrorist-sponsored smallpox
attack.
The Republican bill falls short on each of these counts.
There is a better way. We can defeat this bill under the suspension
of the rules. We can go back to the negotiating table or we can bring a
new bill to the Floor with a substitute amendment that the nurses and
first responders say will truly respond to their concerns.
My colleagues, I urge you to defeat the Burr bill today. Let us have
a vote on the Capps-Waxman proposal that will better protect our public
servants--our heroes and our heroines--and better produce the desired
effect of having more frontline workers inoculated against a smallpox
attack.
Mr. Speaker, I urge a ``no'' vote on the Republican bill.
Mr. DINGELL. Mr. Speaker, I join the millions of our Nation's first
responders in opposition to H.R. 1463, the Smallpox Emergency Personnel
Protection Act of 2003.'' Right after we defeat this bill, I hope that
we set about the task of crafting bipartisan legislation that all
members of the House can support. The very people this bill purports to
help--nurses, EMTs, police officers, firefighters--find this hastily
crafted legislation lacking. Why? Because it fails to address their
very significant concerns.
Mr. Speaker, we are voting on smallpox vaccine injury legislation
today because the Administration's current vaccine program is not
working. Only a fraction of the number of first responders that the
Administration has said are needed to protect us have volunteered to
take the smallpox vaccine. The Administration has recommended that as
many as ten million first responders be vaccinated for smallpox so that
if we ever are attacked by the use of smallpox we will have a core
capacity of health care and emergency personnel vaccinated and able to
take appropriate action right away. The latest numbers from CDC
indicate that less than 26,000 of them have been vaccinated. Why so
few? Because the vaccination carries with it substantial risks,
including adverse affects that could cause disability and, in some
cases, death.
Proponents of H.R. 1463 will make much of what they think that bill
does. I ask you to focus on what it lacks. H.R. 1463 does not do enough
to ensure adequate screening and education and otherwise prevent
adverse events from happening in the first place. In the event that
tragedy strikes and someone is injured or killed by the vaccine, H.R.
1463 does not make adequate provision for lost wages. And, what H.R.
1463 lacks is support from the people to whom it is intended to appeal.
H.R. 1463 is opposed by the American Public Health Association, the
International Union of Police Associations, the American Nurses
Association, the International Association of Fire Fighters, the
American Federation of Teachers, the American Federation of State,
County, and Municipal Employees, the Service Employees International
Union, and the Infectious Disease Society of America.
Finally, Mr. Speaker, we are all aware of accounts of three deaths in
the last week or so from cardiac arrest in persons who received the
smallpox vaccine. Health care officials cannot positively rule out the
smallpox vaccine as the cause or a contributing factor in these deaths.
The CDC has taken swift action to revise its guidelines and has
indicated that there may be further revisions. These uncertainties
about the known, and I hasten to add the unknown, risks of the smallpox
vaccine have greatly increased the fear factor among prospective
vaccinees. We should be doing all we can to obtain and assess the
relevant information on the vaccine and smallpox risks. That cannot be
done by using the process by which this bill is before us today. We
have had no hearings, no markups, and no opportunity to perfect this
bill on the floor with amendments. All we have is the administration's
proposal and a take it or leave it procedure.
I recommend that we listen to our first responders, vote ``no'' on
H.R. 1463, and get busy writing legislation we can all support.
Mr. BROWN of Ohio. Mr. Speaker. This isn't, or shouldn't be, a
partisan debate. Democrats and Republican members of Congress are in
the same boat. The question we have to answer for ourselves is: do we
vote ``yes'' to a bad bill, or do we demand something better?
The answer to that question is important. Critical protections for
first responders and their families hang in the balance.
H.R. 1463 is supposed to protect members of the police, the nation's
nurses, our firefighters, and other first responders who voluntarily
receive a smallpox vaccine, and sustain an injury from that vaccine.
But the Nation's first responders oppose this bill. This bill is
supposed to increase the number of first responders who voluntarily
receive a smallpox vaccine.
But the bioterrorism experts who helped put together the smallpox
vaccine program say H.R. 1463 won't work. It won't improve
participation rates.
So the choice both Republican and Democrat members of Congress face
is whether to dismiss the concerns of first responders, ignore the
advice of bioterrorism experts, and vote for this bill anyway.
Have members of Congress become so far removed from the people we
represent that we would pass a bill opposed by the very men and women
it is supposed to protect?
Do we in Congress really think we know better than bioterrorism
experts when it comes to bioterrorism preparedness?
Protecting first responders and their families in the event of a
vaccine injury and bolstering vaccine participation rates are important
objectives.
They are time-sensitive objectives. The National Smallpox Vaccination
program is already underway, and participation is lagging far behind
goal.
About 25,000 people have been vaccinated, less than 5 percent of the
March 1 benchmark. The experts tell us H.R. 1463 won't jumpstart the
smallpox vaccine program, so it won't enhance bioterrorism
preparedness.
Congress must now waste valuable time enacting the wrong bill,
particularly when our nation's ability to respond to bioterrorism is at
stake.
Nor should members of either side of the aisle support legislation
that is unapologetically dismissive of the very people this bill
alleges to protect . . . the nurses, firefighters, police, and others
who voluntarily place themselves at risk on our behalf.
Public health experts and first responders tell us that H.R. 1463
falls short in fundamental ways.
To meet the goals of efficiency, timeliness, fairness, and program
integrity, the compensation program must be backed by an injury table.
H.R. 1463 lacks one.
Responsible administration of any vaccination program requires
education, pre-screening and surveillance. H.R. 1463 requires these
activities, but doesn't fund them.
A lynchpin in any compensation program is guaranteed funding. Without
it, financial protection is a possibility, not a promise. There''s no
security in that. And there is no guaranteed funding in H.R. 1463.
The incidence of smallpox vaccine injury is rare. However, in the
event a serious injury occurs, volunteers may be out of work for an
extended period or permanently. First responder volunteers, and their
families, must be assured adequate and continuing financial protection.
H.R. 1463 would cap funding so that wage replacement would run out
after about five years. For permanent disability or death.
``Inadequate'' doesn't begin to describe it. ``Insulting'' is closer to
the mark.
H.R. 1463 is not a legitimate financial safeguard. It's a placebo.
Our nurses, firefighters, EMTs, and other first responders deserve
better.
Mr. TAUZIN. Mr. Speaker, I yield back the balance of my time.
The SPEAKER pro tempore (Mr. Petri). The question is on the motion
offered by the gentleman from Louisiana (Mr. Tauzin) that the House
suspend the rules and pass the bill, H.R. 1463.
The question was taken.
The SPEAKER pro tempore. In the opinion of the Chair, two-thirds of
those present have voted in the affirmative.
Mrs. CAPPS. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. Pursuant to clause 8 of rule XX and the
Chair's prior announcement, further proceedings on this motion will be
postponed.
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