The U.S. Supreme Court building

Lawsuits against nursing homes for allegedly failing to treat residents properly during the pandemic are more likely to be heard now in state and not federal courts. That’s one conclusion after the US Supreme Court announced Saturday that it will not be taking up the case of Saldana v Glenhaven Healthcare.

Ricardo Saldana lived at Glenhaven for six years before dying of COVID-related causes in May 2020. His family sued Glenhaven for not doing enough to protect Saldana from the virus, and the provider tried to have the case moved to federal court to take advantage of immunity under the Public Readiness and Emergency Preparedness Act. 

The PREP Act was enacted in 2005 to encourage the distribution of vaccines and other treatments during the possibility of an outbreak of avian flu, but nursing homes cite it when they are sued with allegations they didn’t properly care for residents during the recent pandemic.

A District Court rejected Glenhaven’s attempt, and after the provider appealed to the 9th Circuit, that court did the same. SCOTUS offered no comment on its rejection of Glenhaven’s petition, and the case will head to a California state court.

The SCOTUS ruling may be good for providers in states with immunity laws, one attorney told McKnight’s.

Because the 3rd, 5th, 7th and 9th circuit courts have each found these types of claims were not removable to a federal court, the SCOTUS news wasn’t surprising to Angela Rinehart, an associate at Stoll, Keenon, Ogden.

“While it is true that various District Courts have been split on this issue, whether the PREP Act provides for federal jurisdiction over these claims, thereby allowing nursing homes to remove state court cases to federal court, the issue has not been dealt with at the appellate level in many jurisdictions, so there’s no circuit split,” she told McKnight’s Long-Term Care News

“I think nursing homes are in better shape with COVID-19 claims when there is a state statute providing immunity. For now, we are stuck with the District Courts’ ruling on this issue however they deem fit, outside of those few Circuits, of course.”

Good news?

There’s reason to believe providers may get the federal relief they’re seeking, however, said Teresa Tomlinson, an attorney with Hall Booth Smith. 

“There are opinions in federal appellate courts expected in the next six months on records and arguments more fully developed than Glenhaven, simply because of the march of time and the evolution of these issues of first impression,” Tomlinson told McKnight’s. “The right opinion, with the right record, may well be accepted for consideration by the Supreme Court. Providers do believe this next round of appeals coming up through the courts of appeals are well situated for cert acceptance.

“Long-term care providers have valid arguments and a critical need for answers. The providers believe the PREP Act supplies clear protections the courts have not been enforcing to this point.”