PREP Act Immunity?

Do nursing homes get blanket immunity under the PREP Act?

Residents have filed lawsuits for the facilities failures to take reasonable safety precautions to prevent and contain of COVID-19. The failures include violations on failing to monitor food preparation; to provide personal protective equipment; allowing visitors and employees enter without safety precautions.

The nursing home industry contends they have blanket immunity for any failures for the last two years. The industry claims nursing homes were covered by the Public Readiness and Emergency Preparedness (PREP) Act, and should be dismissed. The PREP act provides immunity from liability, with the exception of willful misconduct, from legal claims. More than 100,000 vulnerable elderly residents died in nursing homes during the pandemic.

Third Circuit Decision

The 3rd U.S. Circuit Court of Appeals ruled against Andover Subacute & Rehabilitation I & II, two nursing homes in New Jersey. The Court remanded the case back to New Jersey state court. The Philadelphia-based 3rd Circuit panel ruled that the lawsuits “asserted only garden-variety state-law claims” and belonged in state court.

Three Republican appointees heard the appeal including  Michael Chagares, Jane Roth and David Porter, who was appointed by President Donald Trump. Porter wrote the opinion:

“The pandemic has tested our federal system, but this case confirms its resilience. The defendants invite us to assert the ‘judicial Power of the United States’ over a matter that belongs to the states. We decline that invitation. We will not exercise power that the Constitution and Congress have not given us. There is no COVID-19 exception to federalism.”

CMS proposed new vaccination regulation for caregivers. On-site surveyors will review the facility’s vaccination policies and procedures including tracking staff and resident vaccinations. Let’s see if the industry can comply…accurately.