Kenneth R. Feinberg
Kenneth R. Feinberg
Just 13 days after the Sept. 11 terrorist attacks, Congress enacted the 9/11 Victim Compensation Fund and I became its administrator. Over the next 33 months, the Fund paid over $7.1 billion in public taxpayer money to 5,300 individual victims. The law made clear that eligibility was limited to the families of those who died on 9/11 and those individual victims who survived but suffered physical injury. The law expressly prohibited individual claims of mental injury. Congress made a hard decision to restrict eligibility to death and physical injury.
Today, people in the United States and around the globe eagerly await the development, manufacture and distribution of a COVID-19 vaccine. Billions of dollars are being invested in the ongoing effort and vaccine availability is anticipated in the next few months, even weeks. That means a determination must be made — and soon — as to who will be eligible to receive the COVID-19 vaccine ahead of others.
Tough vaccine eligibility choices ahead
An advisory panel to the Centers for Disease Control and Prevention last week recommended that front-line health care workers and nursing home residents should be first in line. But that’s just the beginning of the tough eligibility choices ahead.
If “essential worker” is defined narrowly to encompass doctors and other health professionals staffing the front line in treating virus illnesses, for instance, that is an easy call. But if the janitor, the security guard and administrative staff, all employed by the hospital, are also deemed to be “essential workers,” the issue becomes more problematic. Nor is it a given that the definition should only include health professionals and related employees. One can also maintain that police officers, fire fighters, postal service workers, subway and bus drivers, farmers, employees in food plants and other factories should also be deemed “essential.”
Others assert that a priority should be recognized for elderly citizens (a demographic more vulnerable to the virus); individuals with preexisting medical conditions regardless of age; our military personnel stationed around the world; and foreigners also suffering from a pandemic worldwide in scope.
We will need to decide what lives should be valued ahead of others. The process for resolving this emotional issue is clear enough, although sure to be controversial. As with the 9/11 Fund, either Congress or federal and state health agencies will need to establish who should be first to receive initial limited availability of a COVID-19 vaccine.
This will not be easy. But resolving issues like this is reserved for elected officials or health regulators with authority to oversee the vaccine effort. In our democracy such decisions are made every day by those who have the official responsibility and authority to measure the value of lives and determine eligibility for public benefits.
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Although our most sacred public documents — the Declaration of Independence and the Constitution — reiterate and reinforce the concept that “all lives are equal,” in truth, they are not. Just as the 9/11 Fund restricted eligibility to death and physical injury so, too, do our judges and juries assess the value of lives. The banker, stockbroker, lawyer and doctor are deemed eligible for greater compensation than the waiter, soldier and policeman. In valuing lives, those who earn more receive greater compensation than those earning less.
Contention no matter who comes first
And our most cherished and respected federal programs — Social Security, Medicare and Medicaid — all maintain fixed eligibility requirements. Hard decisions about age, income, work status and disability are made every day in America when it comes to determining who qualifies for federal benefits. Abstract considerations of “equal justice” and “equal protection of the law” often yield to practical considerations regarding human differences.
So, too, when it comes to vaccine priorities. We rely on our elected representatives and health regulators to determine “who gets what,” who should be deemed a priority when it comes to limited vaccine availability.
I have learned over the years that disagreement, frustration, and anger result no matter what decisions are made concerning eligibility and money. Human nature has taught me that individuals often calculate other people’s eligibility and compensation and compare that to themselves. There will always be disagreement as to who gets what, when and how. It goes with the territory in a free society.
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But, ultimately, it is up to our policymakers — elected officials and health regulators coordinating with private health authorities. They have been given the responsibility to make these tough decisions and prioritize who is entitled to be placed at the front of the line.
They are accountable to Americans and their ultimate decisions will not please all. Criticism and recrimination will follow. But in a healthy and vibrant democracy, these are how such decisions are made and carried out — whether it be the 9/11 Victim Compensation Fund, eligibility for government benefits, judge and jury deciding issues in the courtroom or, in the case of an anticipated vaccine, determining which lives should be valued ahead of others.
Kenneth R. Feinberg is the former Administrator of the 9/11 Victim Compensation Fund, the BP Oil Spill Fund, and numerous other compensation programs.