In an August 14, 2020 response to a letter written on behalf of the American Seniors Housing Association and Argentum, the General Counsel’s office of the Department of Health and Human Services has determined that senior living communities are a “covered person” under the Public Readiness and Emergency Preparedness (PREP) Act, which creates immunity from liability for the administration or use of “Covered Countermeasures” in response to COVID-19. Covered Countermeasures include “drugs, biologicals, and devices, including those used to diagnose, mitigate, prevent, treat, or cure COVID-19.”

The General Counsel letter concluded that senior living communities would be covered because they “supervised or administered a program with respect to the administration, dispensing, distribution, provision, or use of a security countermeasure or a qualified pandemic or epidemic product” or “provide a facility to administer or use a Covered Countermeasure.” The letter declined to elaborate on exactly what senior living community activities might be immune from liability, but they most likely would include the administration of COVID-19 diagnostic tests, distribution of medications (if any) designed to prevent or treat the virus, and use of devices, such as masks and personal protective equipment, designed to mitigate or prevent the spread of the virus.

The scope of the protection likely will be very limited. The law was really designed especially for drug, vaccine, and device manufacturers and distributors, but the liability protections cover the use of such countermeasures and may include decisions about when and how to administer them. Masks and PPE may constitute covered devices, along with biologicals such as vaccines and any available therapeutics. The protection should mostly be useful as a defense in litigation alleging insufficiencies in the scope or frequency with which senior living communities deploy testing, masking of staff or residents, or other covered mitigation measures.