Long-term care facilities and their employees were on the front lines of the COVID-19 pandemic last year and suffered some of the greatest losses. Many are now understandably concerned that they might be at risk from an increase in litigation. Congress has enacted laws to protect these facilities in just this type of situation, but unfortunately the federal courts are not always willing to allow defendants to claim these protections. Fortunately for long-term care facilities in Kentucky, the Kentucky Legislature has now enacted similar protections which are available to the facilities even when the federal court protections fail.
In 2005, Congress enacted the Public Readiness and Emergency Preparedness (PREP) Act, which authorizes the Secretary of the Department of Health and Human Services to issue emergency declarations in response to public health emergencies. These declarations provide immunity from both federal and state liability for certain individuals and entities against claims of loss arising out of the use or administration of certain countermeasures once an emergency has been declared. 42 U.S.C. §247d-6d. In March of 2020, the HHS Secretary issued a COVID-19 PREP declaration, making it retroactive back to February 4, 2020. Since then, there have been seven amendments and six advisory opinions attempting to help the courts understand when and to whom the PREP Act applies. The January 8, 2021 Advisory Opinion determined that the PREP Act is a “complete preemption” statute because it both establishes a federal cause of action and vests exclusive jurisdiction in a federal court. Thus, when a Plaintiff sues a long-term care facility for negligence or loss related to COVID-19, defendants can remove the suit to federal court and have all of the state claims dismissed. In addition, the PREP Act protects qualified persons from all COVID-19 claims except in the case of “willful misconduct.” 42 U.S.C. §247d-6d. Furthermore, if a claim falls under the PREP Act, the complaint must be filed in the United States District Court for the District of Columbia and plead with particularity for each element of the plaintiff’s claim, making it very difficult for a plaintiff to succeed in federal court.
Despite all these attempts at clarification and analysis, however, the courts are confused. In Garcia v. Welltower, —F.Supp.3d–2021 WL 492581. Garcia, a resident of a senior living facility, died of COVID-19 and his family filed suit alleging elder abuse and neglect, wrongful death, and intentional infliction of emotional distress. The court considered whether the PREP Act was a complete preemption statute, and looked to the OGC Advisory opinion of January 8, 2021 in deciding that it was. The court stated that, “as an affirmative defense, immunity via the PREP Act can provide a basis for dismissal at the pleadings stage under Rule 12(b)(6),” and denied the Plaintiff’s motion to remand while granting Defendants’ motion to dismiss.
Conversely, in Goldbad v. GHC of Canoga Park, 2021 WL 1753624, the court found exactly the opposite. Plaintiff Goldbad’s mother, a resident at Defendant’s skilled nursing facility, died of COVID-19. Goldbad filed suit alleging elder abuse, neglect, and wrongful death. The court considered the Garcia case, but did not find it persuasive. In Goldbad, the court granted Plaintiff’s motion to remand the case back to state court and denied Defendant’s motion to dismiss. The court made no findings as to whether the claims fell within the PREP Act, thus leaving the Defendant exposed to possible state liability.
In Kentucky, Senate Bill 5, which was passed on the final day of this year’s legislative session, has now given Kentucky businesses, including long-term care facilities, much needed protection from lawsuits arising out of the COVID-19 pandemic. The new law states that “an owner who follows any executive action to prevent the spread of COVID-19 during the COVID-19 declared emergency” neither extends an assurance of safety of the premises, nor owes a duty to protect from or warn of the COVID-19 risks. Furthermore, the owner does not, “assume responsibility, or incur liability, for any alleged injury, loss, or damage to persons or property arising from a COVID-19 claim,” except in the case of “gross negligence, or wanton, willful, malicious, or intentional misconduct.” These protections apply retroactively to March 6, 2020, when Governor Beshear first declared the COVID-19 emergency. In addition, any claims for personal injury must be filed within one year of the injury being discovered. This is very welcome news for Kentucky business owners, especially considering the uncertainty in the federal district courts.
Thus, while there is some uncertainty whether or not Kentucky long-term care facilities will be able to avail themselves of the protections afforded by the Federal PREP Act, it does appear that they will still be protected by the new Kentucky law. That is good news for Kentucky business owners.
