Against Immunizing Nursing Homes

U. Chi. L. Rev. Online (2021)

12 Pages Posted: 8 Jul 2021

See all articles by Betsy Grey

Betsy Grey

Arizona State University (ASU) - Sandra Day O'Connor College of Law

Date Written: June 18, 2021

Abstract

Nursing homes and other long-term care facilities account for approximately one third of the over 500,000 Covid-19 deaths in the United States. Facing liability from that widespread harm, the facilities have sought immunity protection from tort liability. In particular, they have sought protection under the federal Public Readiness and Emergency Preparedness (PREP) Act, which is designed to extend immunity from liability claims arising from various Covid-19 countermeasures developed and used during the pandemic.

Importantly for this essay, the lawsuits filed against nursing homes have centered on their failure to take mitigation measures, rather than on harm from their affirmative use of mitigation measures. Initially, courts held that PREP Act immunity does not apply to these failure-to-act claims. In the waning days of the Trump Administration, however, HHS issued an opinion that (together with other HHS statements) interprets the statute otherwise, broadening immunity even to cover the failure to take mitigation measures. That interpretation has been followed by at least one federal district court. This essay questions the wisdom of HHS’s opinion. It argues that it misreads the words and purpose of the PREP Act’s immunity provisions, and undermines accountability of the nursing home industry, creates the wrong incentives for the industry, and may leave victims without any compensatory remedy. This issue should reach appellate courts soon. If the interpretation continues to be followed by the courts, then the Biden Administration should rescind the opinion so that tort law may continue to protect one of society’s most vulnerable populations.

Note: Funding: I received no outside funding for this article.

Declaration of Interests: I have no competing interests.

Keywords: Tort, PREP Act, Immunity, COVID-19, Administrative Law

Suggested Citation

Grey, Betsy, Against Immunizing Nursing Homes (June 18, 2021). U. Chi. L. Rev. Online (2021), Available at SSRN: https://ssrn.com/abstract=3869863

Betsy Grey (Contact Author)

Arizona State University (ASU) - Sandra Day O'Connor College of Law ( email )

Box 877906
Tempe, AZ 85287-7906
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
84
Abstract Views
804
Rank
608,054
PlumX Metrics