HHS must explore the effects of adding autism claims to the National Vaccine Injury Compensation Program (VICP).
Over the past few months, U.S. Department of Health and Human Services (HHS) Secretary Robert F. Kennedy, Jr., has taken a number of actions that suggest he will soon attempt to expand the National Vaccine Injury Compensation Program (VICP)—which compensates those injured by childhood vaccines—to cover claims for some constellation of the conditions that constitute the autism spectrum disorder.
In September of 2025, Andrew Downing—Kennedy’s long-time partner in arguing that vaccines cause autism and now a senior policy advisor deputized to “reform” the “broken” VICP—told the MAHA Institute that an HHS “team” is considering the “best way” to “capture” autism cases within the VICP. Downing specifically raised the prospect of modifying the VICP’s Injury Table, which currently covers certain, specific encephalopathies—a broad category of brain injuries—but which expressly excludes clinical features classic to the autism spectrum.
Then, in November of 2025, HHS unceremoniously removed the webpage of the Centers for Disease Control and Prevention (CDC) which had long assured the public that decades of scientific studies have established that “vaccines do not cause autism.” The replacement page now declares that those studies were all flawed, that the prior CDC webpage assurances violated the federal Data Quality Act, and that new studies are needed.
Last, but not least, in January, HHS fired half of the members of its Advisory Commission on Childhood Vaccines which the U.S. Congress has charged with evaluating any proposed revision to the Injury Table. Given Kennedy’s prior purges of the members of other vaccine committees and his appointment of avowed vaccine critics in their stead, it is safe to assume that future Advisory Commission replacements will share his belief that vaccines cause autism and agree with him that claims for autism should be honored at the VICP.
Under the National Childhood Vaccine Injury Act, the initial decision to expand the Injury Table to cover some new type of claim rests with the Secretary. But, like any other administrative rulemaking, his decision will then be subject to judicial review under the Administrative Procedure Act based on whatever factual record is compiled during a six-month period of public comment.
Beyond the obvious threshold question of whether any form of autism is a “vaccine-related” injury—as the Vaccine Act requires for compensation, but has not been shown by any study that HHS has ever credited—another critical issue will be whether such an expansion would bankrupt the VICP itself. To put it simply, opponents can certainly argue that it would be the epitome of an “arbitrary and capricious” administrative act to extend the coverage of the VICP in a way that would destroy the entire program.
Given the limited time available between the initial proposal and final promulgation of an Injury Table revision, those concerned about the continued existence of the VICP should begin now to press for a financial stress test of any such expansion. Last fall, in an essay in The Regulatory Review and an accompanying article, I presented some estimates of the financial impacts if just the cases of “profound” autism were added to the VICP. That data indicated that, under even the most conservative assumptions, an expansion of the VICP to cover those profound cases would mandate more than $30 billion in annual awards. Such a change would also create a docket of cases for prior autism diagnoses that are still actionable demanding almost $100 billion, if the U.S. Court of Federal Claims applies the standard limitations period, and, more likely, $250 billion if the court follows the eight-year “lookback” provision that is in the Vaccine Act.
It follows that, if the expansion of the Injury Table that HHS is now drafting captures even 2 to 5 percent of those profound cases, the entire VICP Trust Fund balance—$4.7 billion —would promptly be exhausted. Given that the announced intention of the Secretary and his advisors is to “capture” autistic children for VICP compensation, the odds that they will not exceed those low thresholds are slim to none. And any proposed Injury Table revision must be rigorously stress-tested before it is implemented.
In a follow-up article this month in the Penn Law Public Law Research Series, I consider how HHS might perform such a stress test using the sample of U.S. children already compiled by the Autism Developmental Disabilities Monitoring Network. The most recent version of that survey includes about 750 8-year-olds—the age at which the prevalence of autism spectrum disorder is typically assessed—who were diagnosed with profound autism and who also have some history of a “seizure or seizure-like activity.” That latter clinical finding is crucial here because a seizure is typically the first of three prerequisites for a compensable encephalopathy, which includes a broad array of conditions affecting brain function, under fairly specific terms set forth in the current Injury Table.
Using the Autism Developmental Disabilities Monitoring Network dataset and the records on which it is based, HHS should be able to determine how many of those 750 profoundly autistic 8-year-olds—and, by extrapolation, how many of the more than 10,000 such 8-year-olds nationwide—had a seizure that lasted long enough to qualify for VICP compensation under both the current VICP Table and then some revised Table that relaxes the requirements on the severity or duration of the seizure or both.
Conversely, the current Injury Table states that other symptoms and conditions commonly seen with autistic children—“irritability (fussiness), high-pitched and unusual screaming, poor feeding, persistent inconsolable crying”—do not indicate a compensable encephalopathy. Again, it remains to be seen whether the Injury Table revision HHS is drafting may alter or eliminate that exclusion. If the revision does so, the financial impact of such an expansion also needs to be evaluated.
The second prerequisite in the current Table for a compensable encephalopathy is that the signal seizure must have occurred no more than three days after a vaccination containing the pertussis bacteria or antigens or between five and 15 days after a measles, mumps, and rubella shot. Those maximum onset intervals reflect the established science on how long it takes for an infectious encephalopathy to develop, in exceedingly rare cases, in a child with a severely compromised immune system.
If HHS either extends those actionable onset intervals or implicates other vaccines or both, the volume of such awards could increase dramatically, even if the seizures occurred during one of those extended intervals by sheer coincidence, completely unrelated to any prior vaccination.
Finally, a stress-test of some proposed Injury Table expansion must consider any evidence that the signal seizure was the result of one of the recognized, alternative causes such as stroke, which, under the current Table, disqualifies an otherwise compensable encephalopathy. HHS needs to determine both how many otherwise compensable encephalopathies are presently being excluded by that current list of alternative causes and then how many more such claims will be entitled to VICP compensation if HHS truncates or eliminates that list of other causes.
The same type of stress test could, and should, be applied to any other proposed Injury Table revision. Again, HHS and the public need to remember that, if some expanded definition entitles even 2 to 5 percent of profoundly autistic children to VICP compensation, the program will collapse.
In sum, HHS should agree now that it will stress-test any proposed revision of the Injury Table intended to “capture” autism cases before it is submitted to the Advisory Commission. HHS should likewise honor its pledge that its actions on autism and vaccines will be made with “full transparency and accountability,” and that it will release any stress-test results and the underlying data in time for an independent review before any revision is issued. If HHS refuses to do so, that will speak volumes about the existential threat posed by any revision it may propose.
