Department of Health and Human Services building

A federal advisory opinion on immunity protections for healthcare professionals related to COVID-19 covered countermeasures had an assist from a senior living industry association.

Argentum led the effort to obtain the advisory opinion, issued Jan. 8 by the Department of Health and Human Services, relating to the Public Readiness and Emergency Preparedness, or PREP, Act. The opinion reinforces that healthcare providers have liability protections when prioritizing distribution of countermeasures — including COVID-19 vaccines — especially if done in accordance with public health guidelines. 

“The advisory opinion provides that prioritization or purposeful allocation of a covered countermeasure, such as a therapeutic or vaccine, can fall under the PREP Act’s liability protections, particularly if done in accordance with a public health authority’s directive,” an Argentum spokesperson said.

Covered countermeasures include any Food and Drug Administration or Occupational Safety and Health Administration-approved or authorized product, including COVID-19 vaccines, according to the opinion.

Senior living communities, nursing homes and other healthcare facilities have faced lawsuits related to using or not using covered countermeasures against COVID-19, including personal protective equipment and COVID-19 vaccinations. Long-term care operators have said they are following Centers for Disease Control and Prevention recommendations on COVID-19 vaccine priority groups, as well as public health guidelines on infection control and prevention.

At the beginning of the pandemic, HHS Secretary Alex Azar issued a declaration under the PREP Act, which originally was signed into law in 2005, providing broad immunity protections to healthcare professionals providing covered countermeasures against the coronavirus.

The statute excludes those who engage in “willful misconduct,” meaning they still can face potential civil liability in addition to criminal prosecution.