A federal court ruling last week that the Public Readiness and Emergency Preparedness (PREP) Act grants liability to senior living providers taking measures to protect residents from Covid-19 is seen by industry advocates as a positive sign. It came after months of lobbying Congress for liability immunity from pandemic-related lawsuits.

“It is an overwhelmingly positive development for senior living providers in the area of potential liability for responding to Covid-19,” HansonBridgett Partner Paul Gordon told Senior Housing News. Gordon is legal counsel for the American Seniors Housing Association (ASHA).

But more legal challenges are working through the court system, including the most recent ruling, and if higher courts show strong amicus support on appeal, the case could land at the United States Supreme Court.

A breakthrough

The ruling from 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.

The plaintiffs, Paul, Ronald and Gary Garcia, accuse Welltower and Sunrise of several shortcomings including not providing adequate visitation or dining policies, maintaining insufficient supplies of personal protective equipment (PPE), and relaxed Covid-19 mitigation protocols which led to their father, Gilbert, contracting Covid-19 in June 2020. Gilbert Garcia died less than a month later.

The Garcias contend that the PREP Act only covers pharmaceuticals, vaccines and biological treatments — the original purpose for the legislation when it became law in 2005. Former U.S. Department of Health and Human Services Secretary Alex Azar invoked the PREP Act at the beginning of the pandemic, and HHS’ Office of General Counsel (OGC) has since amended the law to broaden its reach, Reuters reports.

The court relied on two opinions drafted by the OGC in the Garcia suit, to rule that Sunrise and Welltower’s actions were covered by the PREP Act and, therefore, qualified for complete immunity.

Gordon believes that the ruling could be a sign of things to come with future legal challenges. Although the ruling is not binding in other courts, it gives providers and their legal teams further evidence and support for arguments interpreting the PREP Act in their favor.

ASHA and fellow industry advocacy group Argentum have worked to get an interpretation of the PREP Act that would include senior living communities and what they do, including the day-to-day tasks involved with preventing Covid-19 from entering a community, and mitigating its spread if an outbreak occurs.

“It’s definitely a breakthrough case,” Gordon said. “For the first time, a federal court is following the interpretations from HHS’ Office of General Counsel.”

Lobbying continues

While ASHA and other groups are encouraged by the ruling, they are not letting up on their efforts at the federal level to ensure senior living is not overlooked, and educating the industry on the interpretations of future rulings and possible legislation that may come down.

Groups such as AARP have pushed for Congress to reject granting blanket liability immunity related to Covid-19, contending that seniors and their families should maintain their full right to seek legal redress to hold facilities accountable when residents are harmed, neglected or abused.

Gordon believes that the private-pay model that drives much of the industry’s operations results in senior living being overlooked in moves toward liability protection, in favor of health facilities that are eligible for participation in federal reimbursement programs such as Medicaid.

“What ASHA is doing is always trying to make sure that the senior living industry is not forgotten,” he said.

On an organic level, industry groups want to remind communities that the scope of the PREP Act is still limited to claims involving covered countermeasures, even as they believe that the law is being interpreted correctly in their view.

ASHA is advising communities to continue adjusting their Covid-19 responses based upon the expediency and efficacy of various kinds of interventions, to keep their residents and their staff safe.

“They’re going to follow the science. They’re not going to follow the lawsuit,” Gordon said.