PREP Act Does Not Protect Nursing Home From Liability

Elder Law Answers case summary.The United States District Court in the District of Montana finds a claim for nursing home misconduct can go forward as the Public Readiness and Emergency Preparedness Act does not shield the facility from liability. In Estate of Petersen v. Koelsch Senior Communities (D. Mont., CV 22-11-BLG-SPW, March 1, 2023).

Representatives of several nursing home residents who passed away during the pandemic, Mr. Robert Petersen, Ms. Mary Ann Simons, and Ms. Elaine Guilford, brought claims of negligence and misconduct against a nursing home facility, Canyon Creek of Koelsch Senior Communities.

Canyon Creek filed a motion to dismiss. When the judge recommended that the court deny the motion, Canyon Creek objected.

The facility alleged that the pleading failed to state a claim for relief per Federal Rules of Civil Procedure Rule 12(b)(6) concerning Mr. Petersen’s and Ms. Simon’s treatment before the COVID-19 outbreak. The representatives of Mr. Petersen and Mr. Simons alleged misconduct both before and during the pandemic. While the complaint does not allege the nursing home harmed Ms. Simons before the pandemic, it satisfies Rule 12(b)(6) concerning Mr. Petersen because the complaint includes Mr. Petersen’s descriptions of the nursing home’s neglect and mistreatment of her father before the pandemic.

The nursing home further alleged that it was immune from liability under the Public Readiness and Emergency Preparedness (PREP) Act. The PREP Act is a U.S. federal law enacted in 2005 that provides immunity from liability for certain individuals and entities involved in administering medical countermeasures during a public health emergency such as the COVID-19 pandemic. Canyon Creek argued that its decision not to employ certain COVID-19 measures affirmatively invoked PREP Act immunity.

Yet the Act does not shield the nursing home from liability. For Mr. Petersen and Ms. Simons, the alleged harm is failure to provide adequate care generally and is not specific to COVID-19 measures. The descriptions of COVID-19 countermeasures in the complaint are not the basis of the claims. They merely provide context.

In Ms. Guilford’s case, the alleged harm is failing to inform her representatives that she had COVID-19 and to implement an infection prevention and control protocol in the nursing home. These are not covered countermeasures under the PREP Act. Although the PREP Act protects institutions that fail to administer countermeasures to prioritize care for more vulnerable individuals, Canyon Creek’s lack of a response protocol was systemic and therefore does not trigger the Act’s protection.

The judge also acted within his discretion when he disregarded the advisory opinion, as advisory opinions are not binding.

The court adopts the judge’s findings and recommendations as the PREP Act does not indemnify the facility.

Read the full opinion.