Favorable Ruling for Sunrise, Welltower Rests on Complete PREP Act Immunity for Senior Living Providers

A California federal court ruled Wednesday that measures taken by senior living providers to protect residents from Covid-19 are eligible for complete liability immunity under the Public Readiness and Emergency Preparedness (PREP) Act.

“The California federal court ruling is significant for the industry which has done everything in its power to protect staff and residents since the onset of the COVID-19 pandemic,” American Seniors Housing Association (ASHA) President David Schless stated.

The U.S. District Court, Central District of California granted a motion from Sunrise Senior Living and Welltower (NYSE: WELL) to dismiss claims from the plaintiffs of elder abuse and neglect, wrongful death and intentional infliction of emotional distress for failing to keep residents safe, and for not following Centers for Disease Control and Prevention (CDC), state and local public health guidance to prevent the spread of Covid-19 in Sunrise Villa Bradford, an assisted living community in Placentia, California.

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The lawsuit, filed last November, accuses Sunrise and Welltower of various shortcomings, such as maintaining insufficient supplies of personal protective equipment, providing inadequate visitation and group dining policies, and relaxed mitigation protocols after a staff member tested positive for Covid-19.

The plaintiffs, Paul, Ronald and Gary Garcia, filed the suit on behalf of their father, Gilbert, who contracted Covid-19 last June and died less than a month later, the Orange County Register reports. They argued that the PREP Act did not apply because it “does not provide immunity to medical providers for negligence claims ‘unrelated to vaccine administration and use’,” and that the Covid countermeasures covered by the Act do not include “policies, procedures, protocols, or guidelines.”

The court, relying on two Department of Health and Human Services Office of General Counsel opinions, ruled that Sunrise and Welltower’s actions were covered by the PREP Act and, therefore, qualified for complete immunity.

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Industry groups associated with long-term care and senior living have lobbied Congress throughout the pandemic for immunity from liability lawsuits stemming from Covid-19, arguing that the the unprecedented nature of the pandemic has placed undue strains on operations and bottom lines, all while communities work to maintain high quality levels of care and safety for residents.

Senior advocacy groups and other legal experts contend that immunity for providers is an overreach, leaving families of residents will little legal recourse to hold operators accountable for cases of legitimate neglect and abuse.

“While complete failure to implement Covid countermeasures is not
protected by the PREP Act, this decision makes it clear that, even if Covid
countermeasures — such as infection control, PPE use, limitations on
visitation and gatherings, resident and employee testing, and similar
policies and procedures — are alleged to have been improperly devised and implemented, they nevertheless are afforded complete immunity under the PREP Act,” attorney Paul Gordon, a partner at HansonBridgett, wrote in a summary of the case from his firm and ASHA.

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