As a defense to allegations about COVID-19 response, many nursing homes have cited the Public Readiness and Emergency Preparedness (PREP) Act. The federal law appears to provide immunity to nursing homes implementing covered countermeasures during the pandemic, yet, as of Spring 2023, the extent of the liability coverage needs to be clarified. States have interpreted the law differently, and the Supreme Court has yet to issue a definitive ruling on the scope of its protections for facilities operating during the pandemic.
The following is a summary of a ruling recently released on a COVID death suit against a nursing home that sought to use the PREP Act as a defense:
The United States Court of Appeals for the Second Circuit holds in a nonprecedential summary order ruling that the federal court lacks subject matter jurisdiction to resolve a dispute where the nursing home intended to invoke the PREP Act as a defense. In Rivera-Zayas v. Our Lady of Consolation Geriatric Care Center (2nd Cir., 21-2164-cv, April 13, 2023).
Ana Martinez caught a fatal infection of COVID-19 while residing at Our Lady of Consolation Geriatric Care Center. Her daughter, Vivian Rivera-Zayas, brought claims of negligence, gross negligence, negligent supervision, wrongful death, and violations of the New York Public Health Law against the facility in New York Supreme Court, Kings County.
The care center removed the case to the Eastern District of New York. Asserting that there was no basis for federal jurisdiction, Ms. Rivera-Zayas moved to remand the case to state court. After the district court granted her recommendation, the facility appealed.
On appeal, the second circuit appellate court considers whether a basis for federal jurisdiction exists.
The PREP Act does not completely preempt the state law claims. For a federal law to preempt state law, Congress must have intended to provide a federal defense to a state law claim and replace the state law claim with a federal cause of action. In Solomon v. St. Joseph Hospital, this court interpreted the PREP Act and found that Congress did not intend to substitute state-law causes of action for nonimmunized claims. The only exclusive cause of action the act created was willful misconduct. In this case, as in Solomon, individuals brought negligence claims.
The nursing home also argued that the federal court had exclusive jurisdiction because the claims arose under federal law. Yet the claims in this case – negligence, gross negligence, negligent supervision, wrongful death, and violations of the New York Public Health Law – do not raise federal questions. The court’s inquiry must not include the nursing home’s anticipated PREP Act defense.
The Our Lady of Consolation Geriatric Care Center asserted that there is federal jurisdiction because the nursing home was acting under a federal office when it implemented the covered countermeasures. The federal officer removal statute requires a relationship that involves subjugation or control and assistance to a federal superior. Complying with federal law in a highly regulated industry such as long-term care is insufficient to generate federal jurisdiction.
Although the nursing home intends to invoke the PREP Act as a defense, no cause for federal jurisdiction exists.
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