Thursday, January 28, 2021
Nursing homes across the country are invoking the Public Readiness and Emergency Preparedness (PREP) Act to claim immunity from COVID-19 suits. The PREP Act was originally passed in 2005 in order to encourage production of emergency vaccines during an epidemic by providing immunity to pharmaceutical manufacturers. The Trump administration invoked the Act in March relating to COVID-19:
It authorizes the Secretary of the Department of Health and Human Services (HHS), during a public health emergency, to shield from liability makers of “countermeasures” such as diagnostic tests, protective gear and vaccines like those developed by Pfizer Inc, Germany’s BioNTech and Moderna Inc.
The PREP Act does not apply to instances of serious injury or death caused by willful misconduct; when immunity applies, the injured person may seek compensation from a government fund (though most claims are denied).
All rulings have been against nursing homes so far, but pleading the Act, which allows defendants to move from state to federal court, can buy them time. In December, the Trump administration added agency guidance in favor of nursing homes. Only one ruling, against a defendant, has come down since the guidance, so it remains to be seen whether nursing homes will begin winning cases. Tom Hals at Reuters has the story.