Working with the Levin & Peconti law firm in Chicago, CCL helped write a sur-reply brief that responds to the nursing home defendant's invocation of a interpretation of the PREP Act written in January by the prior administration.
The Public Readiness and Emergency Preparedness Act, also known as the PREP Act, was enacted by Congress in 2005 and provides immunity from losses for the administration or use of certain countermeasures against diseases, threats, or conditions identified by the government, as long as the user of the countermeasures does not engage in willful misconduct. The measure was designed to free health-care providers from liability when a vaccine or other tool authorized for use in a public health emergency proves ineffective.
In Martin v. Peterson Health Operations, pending in the U.S. District Court for the Central District of Illinois, the plaintiff alleges that the nursing home defendant failed to undertake necessary steps to prevent the spread of COVID-19 in its facility and that failure resulted in the death of a resident, whose estate has sued. Peterson Health removed the case from state court to federal court and then asserted that the case should be dismissed under the PREP Act.
The vast majority of courts in cases like this one, with only one outlier decision, have held that the PREP Act does not apply when there has been no administration or use of a countermeasure. However, the general counsel of the Department of Health and Human Services in the outgoing administration issued an 11th hour interpretation of the PREP Act and asserted that a decision against using countermeasures was covered by the Act's immunity provision as well. Although the defendant asserted that the interpretation had a binding effect, the sur-reply cites decisions that recognize a statutory interpretation by a general counsel of an administrative agency does not have the force and effect of binding law and that the interpretation itself acknowledges that it is not binding. The brief was filed March 8.
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