Public Readiness and Emergency Preparedness (PREP) Act

Public Readiness and Emergency Preparedness (PREP) Act

The Supreme Court may take away access to the judicial system. The U.S. Supreme Court may decide whether liability cases related to the Public Readiness and Emergency Preparedness (PREP) Act belong in state or federal court. The law was signed in 2005 by President George W. Bush to give immunity to healthcare providers in times of national emergency. COVID neglect lawsuits are the first real tests of PREP.

The PREP Act gives health-care providers a federal defense—immunity from suit and immunity from liability for actions taken to avert a national public health emergency–not immunity for abuse and neglect. The immunity defense, by itself, doesn’t transform the case into a federal one.

The case is Glenhaven Healthcare, LLC v. Saldana, U.S., No. 22-192, petition for review filed 8/29/22.

Immunity During COVID?

A nursing home operator has asked the Supreme Court to interpret the 2005 PREP Act and declare that federal courts have exclusive authority to hear claims arising during the Covid-19 pandemic. The Ninth Circuit held that the family’s suit belonged in state court. The PREP Act didn’t create an exclusive federal cause of action that wholly displaced their garden variety state-law negligence claims.

If SCOTUS grants the petition from Glenhaven Healthcare, it could decide jurisdiction for all cases under the PREP Act. Glenhaven Healthcare argues the federal Public Readiness and Emergency Preparedness Act displaces state-law causes of action that it strips state courts of jurisdiction to hear them. Ridiculous, of course. No federal appeals court has held that the PREP Act completely preempts all state-law causes of action.

None of the complaints against providers like Glenhaven involves a federal question for federal court jurisdiction. But, under the doctrine of complete preemption, a federal law may cover a subject so broadly to preempt state-law claims. However, public health is a local issue.

Courts in all 50 states should decide these cases.

“State courts are presumed capable of applying federal law, and if nursing homes disagree, they are free to seek review of state supreme court decisions.”

–attorney Pulver said.