December 4, 2022

An analysis of PREP Act immunity for LTC facilities

Written By

Norris Cunningham
Member, Stoll Keenon Ogden PLLC

A host of lawsuits over the past two years involve nursing homes where patients or their estates allege that patients contracted COVID-19 due to the facilities’ negligence or failure to properly act.

Generally, these lawsuits allege that the facilities failed to enforce social distancing, failed to follow proper infection control protocols and guidelines, and failed to take precautions to prevent the spread of COVID-19.

Procedurally, these cases get filed in state court and claim negligence or wrongful death as facilities are used to seeing. However, the defendant nursing homes file to transfer the case to federal court, arguing that the case presents a federal question under the Public Readiness and Emergency Preparedness (PREP) Act. Plaintiffs argue that the PREP Act does not apply and move to remand the case back to state court.

Many federal district courts have found that the PREP Act does not apply to the case, even considering the Advisory Opinions of the Office of General Counsel (OGC) of the Department of Health & Human Services, which stated that the PREP Act is a complete preemption statute and that nursing homes are entitled to its immunity if they are providing or allocating covered countermeasures.

However, not all courts agree with OGC on whether the PREP Act applies, and those courts have not granted nursing homes the requested relief.

Most recently, the United States Supreme Court decided not to take up the case of Saldana v. Glenhaven Healthcare. There, the resident lived at Glenhaven for six years before dying of COVID-related causes in May 2020. His family sued the nursing home for not doing enough to protect him from the virus, and the nursing home tried to have the case moved to federal court to take advantage of immunity under the PREP Act. The 9th Circuit Court of Appeals rejected Glenhaven’s argument and remanded the case back to state court.

Federal district courts in New York, Kansas, California and Florida, along with several other district courts, have all found that state law claims of negligence and wrongful death were not federal question claims under the PREP Act and remanded their respective matters back to state court.

Contrary to the above, the Central District of California issued an order in Gilbert Garcia et al. v. Welltower OpCo Group LLC et al. The district court found that the PREP Act served as complete immunity for the nursing home defendants and barred the plaintiffs’ claims against them. The plaintiffs alleged that during the pandemic the facility allowed outside visitors, sent “mixed messages” about PPE, resumed group dining, and allowed a barber to enter the facility after a staff member tested positive for the virus, among other things. Plaintiff later tested positive for the virus and was taken to the emergency room, where he died a few weeks later.

Defendants argued that the PREP Act provided a basis for immunity at the pleadings stage. Plaintiffs argued that the PREP Act did not apply to the case, but the court disagreed. Now, in light of the Saldana opinion, on Nov. 18, 2022, the 9th Circuit vacated the district court’s decision in Garcia and remanded for reconsideration.

While valid arguments exist as to why the PREP Act should provide immunity to long-term care providers in these types of cases, the recent Supreme Court decision to pass on Saldana will certainly force more of these cases to be heard in state court, and the split between the various federal courts will remain. Long-term care providers must remain hopeful that the right case is out there, and the Supreme Court will revisit this issue and resolve the split among the lower courts.

*** From the December 2022 Issue of McKnight’s Long-Term Care News

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