PREP Act Question and Answers (2024)

A Declaration includes:

• A determination that a disease or health condition or threat to health constitutes a public health emergency, or that there is a credible risk that it will in the future constitute an emergency;
• The category of diseases, health conditions, or health threats for which administration and use of the countermeasure is recommended. During the time period covered by the Declaration, it is presumed that the recommended countermeasure;
• The effective time period (the Secretary may specify an extended time period for manufacturers to dispose of the countermeasure and for others to cease administration and use of the countermeasure);
• The population of individuals receiving the countermeasure and the geographic area of administration and use of the countermeasure for which immunity from liability is in effect for program planners and qualified persons (manufacturers and distributors are provided liability immunity regardless of who receives the countermeasure or where it is administered or used);
• Limitations (if any) on the geographic area or areas for which immunity is in effect with respect to administration or use of the countermeasure;
• Limitations (if any) on the means of distribution;
• Any additional persons identified as qualified to prescribe, dispense, or administer the countermeasure; and
• Any other limitations or conditions.

A Declaration may provide liability immunity for covered persons. Covered persons may include, at the Secretary’s discretion:

• Manufacturers of countermeasures;
• Distributors of countermeasures;
• Program planners, i.e., individuals and entities involved in planning, administering, or supervising programs for distribution of a countermeasure (e.g., State or local governments, Indian tribes, or private sector employers or community groups that establish requirements or provide guidance, technical or scientific advice or assistance, or provide a facility);
• Qualified persons, i.e., persons who prescribe, administer, or dispense countermeasures such as healthcare and other providers or other categories of persons named in a Declaration, e.g., volunteers;
• Officials, agents, and employees of any of these entities or persons; and
• The United States.
  

Under section 319 of the Public Health Service Act, HHS may issue a declaration of a public health emergency based upon a determination that a:

• disease or disorder presents a public health emergency; or
• public health emergency, including significant outbreaks of infectious disease or bioterrorist attacks, otherwise exists.

Following a section 319 declaration, the HHS can take a number of emergency actions, including:

• Waiving certain Medicare, Medicaid, State Children's Health Insurance Program, and Health Insurance Portability and Accountability Act requirements;
• Allowing States and localities to temporarily reassign personnel supported with federal funds during the period of the emergency.

A determination of a public health emergency is different from a PREP Act declaration. The declarations are made on different public health determinations, and have different legal effects. A PREP Act Declaration may be made in advance of a public health emergency and may provide liability immunity for activities both before and after a declared public health emergency. A separate declaration under section 319 or other statutes is not needed for immunity under the PREP Act to take effect unless the PREP Act Declaration states that a public health or other emergency Declaration is needed to trigger immunity.

Immunity means that courts must dismiss claims brought against any entity or individual covered by the PREP Act. Claims that courts must dismiss include claims for any loss that is related to any stage of design, development, testing, manufacture, labeling, distribution, formulation, labeling, packaging, marketing, promotion, sale, purchase, donation, dispensing, prescribing, administration, licensing or use of a countermeasure recommended in a Declaration. This includes, but is not limited to, claims for:

• death;
• physical, mental, or emotional injury, illness, disability, or condition or fear of any such injury, illness, disability, or condition;
• any need for medical monitoring; or
• property damage or loss, including business interruption loss.

The only exception is for claims of willful misconduct. (See Question: Are There Any Limitations on Immunity From Liability?).

A Declaration may provide liability immunity for covered persons. Covered persons may include, at the Secretary’s discretion:

• Manufacturers of countermeasures;
• Distributors of countermeasures;
• Program planners, i.e., individuals and entities involved in planning, administering, or supervising programs for distribution of a countermeasure (e.g., State or local governments, Indian tribes, or private sector employers or community groups that establish requirements or provide guidance, technical or scientific advice or assistance, or provide a facility);
• Qualified persons, i.e., persons who prescribe, administer, or dispense countermeasures such as healthcare and other providers or other categories of persons named in a Declaration, e.g., volunteers;
• Officials, agents, and employees of any of these entities or persons; and
• The United States.
  

Immunity from liability under the PREP Act is not available for death or serious physical injury caused by willful misconduct. A “serious physical injury” is one that is life-threatening, or results in or requires medical or surgical intervention to preclude permanent impairment of a body function or results in permanent damage to a body structure. Willful misconduct is misconduct that is greater than any form of recklessness or negligence. It is defined in the PREP Act asan act or failure to act that is taken:

• intentionally to achieve a wrongful purpose;
• knowingly without legal or factual justification; and
• in disregard of a known or obvious risk that is so great as to make it highly probable that the harm will outweigh the benefit. All three of these conditions must be proven with clear and convincing evidence. Willful misconduct cannot be found against:
• A manufacturer or distributor for actions regulated by HHS under the Public Health Service Act or the Federal Food, Drug and Cosmetic Act, if HHS chooses not to take an enforcement action against the manufacturer or distributor, or if HHS terminates or settles an enforcement action without imposing a criminal, civil, or administrative penalty; or
• A program planner or qualified person who acts in accordance with applicable directions, guidelines, or recommendations issued by the HHS regarding administration and use of a countermeasure as long as HHS or the State or local health authority is notified about the serious injury or death within seven days of its discovery.

In addition, immunity is not available for claims based on activities that fall outside the scope of the applicable Declaration. As described below (5. “When Does Immunity Under the PREP Act Become Available?”), the Declaration can specify the conditions under which a Declaration will provide immunity, such as the effective dates and geographic area for which immunity will be available. Immunity is not available for claims that fall outside these conditions.

Immunity is not available for claims of loss unrelated to the design, development, testing, manufacture, distribution, formulation, labeling, packaging, marketing, promotion, sale, purchase, donation, dispensing, prescribing, administration, licensing or use of a countermeasure recommended in a Declaration.

Immunity from liability also is not available for foreign claims where the U.S. has no jurisdiction. Immunity may be available for administration or use of a countermeasure outside the United States if the claim is based on events that take place in U.S. territory or there is another link to the U.S. that makes it reasonable to apply U.S. law to the claim.

In addition, immunity is not available for claims based on activities that fall outside the scope of the applicable Declaration. As described below (5. “When Does Immunity Under the PREP Act Become Available?”), the Declaration can specify the conditions under which a Declaration will provide immunity, such as the effective dates and geographic area for which immunity will be available. Immunity is not available for claims that fall outside these conditions.

A “covered countermeasure” may be:

• A qualified pandemic or epidemic product;
• A security countermeasure;
• An unapproved drug, biological product, or device used under an Emergency Use Authorization (EUA) issued by FDA;
• An approved drug, biological product, or device used pursuant to Federal law in conditions that are in consistent with its approval ; or
• An unapproved drug, biological product, or device, or an approved drug, biological product, or device intended for an unapproved use, that is intended for emergency use and shipped and held by a government agency or someone working on that agency’s behalf for use only when that use is authorized.

In general, these are products that are approved, cleared, or licensed by FDA; authorized for investigational use, i.e. an Investigational New Drug (“IND”) or Investigational Device Exemption (“IDE”), by FDA, authorized under an EUA by FDA, or otherwise permitted to be held or used for emergency use in accordance with Federal law. However, each has a specific legal definition. See the PREP Act Glossary for more information.

The PREP Act authorized a “Covered Countermeasures Process Fund” to compensate eligible individuals who suffer injuries as the direct result of a countermeasure administered or used under the Declaration. Funds must be appropriated by Congress into this account to pay claims. If funds are appropriated, compensation for serious physical injuries may then be available to eligible requesters under the HRSA’s Countermeasures Injury Compensation Program (CICP). Requests for Benefits must be made to HRSA’s CICP.

Serious physical injury means an injury that warranted hospitalization (whether or not the person was actually hospitalized) or that led to a significant loss of function or disability. The CICP pays reasonable and necessary medical benefits, and/or lost wages for eligible injured countermeasure recipients. Death benefits may also be available to certain survivors of eligible individuals who died as a direct result of the administration or use of a covered countermeasure.

The CICP is payer of last resort, so benefits are reduced by the amounts payable by all other public and private third-party payers (such as health insurance and workers’ compensation). The regulations implementing the CICP are at 42 CFR part 110.

An individual who may have suffered a serious physical injury from the administration or use of a countermeasure under a Declaration may seek compensation by filing a Request for Benefits with the CICP. A Request for Benefits form must be filed within one year of receiving the countermeasure.

A legal or personal representative may file on the individual’s behalf, but is generally not required unless the injured person is a minor or an adult who lacks legal capacity to receive payments. If the injured person has died (regardless of cause of death), the executor or administrator of the estate may file for benefits on behalf of the estate. If the injured person died as a direct result of receiving the countermeasure, certain survivors may file a request for death benefits.

As well as filing a Request for Benefits Form, the requester must submit all required medical records and other supporting documentation. Further information on filing a Request for Benefits is available on the CICP’s website.

If no funds have been appropriated to the compensation program, or the Secretary does not make a final determination on the individual’s request within 240 days, or the individual decides not to accept the compensation, the injured individual or his representative may pursue a tort claim in the United States District Court for the District of Columbia, but only if the claim involves willful misconduct and meets the other requirements for suit under the PREP Act. If the individual accepts compensation from the CICP, or if there is no willful misconduct, the individual does not have a tort claim that can be filed in a United States Federal or a State court.

Any award is reduced by public or private insurance or worker’s compensation available to the injured individual. Awards for non-economic damages, such as pain, suffering, physical impairment, mental anguish, and loss of consortium are also limited.

On November 21, 2012, the Appellate Division of the New York Supreme Court in Parker v. St. Lawrence County Public Health Department, 102 A.D.3d 140 (2012) upheld PREP Act protections for a county that conducted a school based vaccination clinic in response to the H1N1 outbreak.

During the clinic, a nurse employed by St. Lawrence County inadvertently vaccinated a kindergartener in the absence of parental informed consent. The child's mother filed suit, arguing that the county had committed negligence and battery. The county moved to dismiss the complaint on the basis that the claim was preempted under the PREP Act. The lower court denied the defendant's motion to dismiss, asserting that the PREP Act was not intended by Congress to protect against claims arising from failure to obtain informed consent. The county appealed and the United States submitted an amicus brief supporting the county.

The appellate court dismissed the plaintiff's claims, finding that the federal PREP Act preempted the claims under state law and that the breadth of liability immunity provided under the PREP Act precluded the plaintiff's claims of negligence and battery. The court noted the alternative remedy provided by the countermeasure injury compensation program and the possibility of a federal cause of action for willful misconduct claims.

The period for appeal of the case has expired.

In another case, Kehler v. Hood, 2012 WL 1945952 (E.D.Mo.), plaintiffs alleged that the physician and her employing hospital were negligent in failing to obtain the adult patient’s informed consent and a consult from a specialist prior to the administration of the vaccination, which resulted in a severe case of transverse myelitis to the patient, and loss of consortium to the spouse. Defendants then brought third party product liability/failure to warn claims against the manufacturer.

The parties did not dispute that the manufacturer, was protected by the PREP Act, nor did they allege that it engaged in willful misconduct. As a result, the federal Eastern District Court of Missouri dismissed the claim against the manufacturer. Finding that it had no jurisdiction over plaintiffs’ remaining claims, the federal court remanded the case to state court for further consideration of the plaintiffs’ claims.

The PREP Act Declaration as amended will apply to any activities related to a federal agreement through December 31, 2024, for administration of medical countermeasures or vaccines, treatments and tests procured by the federal government. The end of the PHE does not affect this coverage.

The PREP Act Declaration as amended also applies to manufacturing, distribution, administration and use of licensed COVID-19 vaccines, approved or cleared in vitro diagnostics and other devices, NIOSH approved respiratory protection devices, and all products under Emergency Use Authorization, regardless of any federal agreement or emergency declaration, through December 31, 2024.

In addition, the Secretary amended the PREP Act declaration to authorize pharmacists to continue to administer COVID-19 and seasonal influenza vaccines to individuals aged three and above and order and administer COVID-19 tests in accordance with an FDA license, approval, or authorization, through December 31, 2024.

The decision to extend some PREP Act flexibilities and not others at this time was made based on a comprehensive evaluation of the current state of the COVID-19 pandemic in the United States and which flexibilities continue to be necessary to continue to fulfill the mission of the COVID-19 response.

HHS has participated in ongoing engagements with internal and external stakeholders to better understand which extensions of PREP Act coverage have ongoing value and which are best returned to pre-pandemic levels.

HHS determined that an Amendment was needed to clarify and provide continued liability protections to certain covered persons and covered products through 2024 as HHS continues to prioritize its response to COVID-19.

Continuing liability immunity for pharmacists, pharmacy interns, and pharmacy technicians to administer vaccines and testing would maintain access to these countermeasures in underserved communities.

While PREP Act coverage offers liability immunity to facilitate prescribing and administration of tests by pharmacists, pharmacy interns or pharmacy technicians, individual pharmacies can make their own decisions about whether and how to make COVID-19 testing services available.

Testing remains a critical tool to ensure the well-being of Americans from COVID-19.

Timely testing may facilitate a diagnosis of COVID-19 and appropriate prescription for an oral antiviral treatment by an eligible health care provider.

For uninsured individuals who are symptomatic or have been exposed, they will still be able to undergo free COVID-19 testing at pharmacy and community sites participating in the CDC Increased Community Access to Testing (ICATT). CDC is working with pharmacy partners to prioritize access to free testing in underserved communities.

The PREP Act addresses liability immunity for prescribing and administration of tests but does not regulate reimbursem*nt of pharmacists and technicians by health plans.

HHS’s Increasing Community Access to Testing (ICATT) will continue to provide COVID-19 testing services for those who are uninsured.

Now that the PHE has ended, insurance companies may choose to impose cost-sharing for pharmacy testing or to only cover tests ordered by clinicians that are in-network.

Insurers are encouraged to continue making testing available with no out-of-pocket costs for patients.

The PREP Act will continue to offer liability immunity for pharmacists, pharmacy technicians, and pharmacy interns for administering of COVID-19 treatments in accordance with an FDA authorization, such as the oral antiviral treatments Paxlovid and Lagevrio. In the case of Paxlovid, pharmacists are permitted to prescribe the treatment under certain circ*mstances.

These oral antiviral treatments are and will be available at over 40,000 provider locations, including over 35,000 retail pharmacies.