HHS issues Fourth Amendment to PREP Act Declaration significantly expanding scope of liability protections

On 3 December 2020, the U.S. Department of Health and Human Services (HHS) issued a fourth amendment to the Declaration under the Public Readiness and Emergency Preparedness Act (PREP Act) related to COVID-19, entitled "Fourth Amendment to the Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID–19 and Republication of the Declaration" (hereinafter the Fourth Amendment).

Although the original tort immunity conferred by the March 2020 Declaration was already quite broad, this latest amendment expands that immunity even further. HHS described the Fourth Amendment as being aimed at increasing access to critical countermeasures against COVID-19 by helping to expand access to important services via telehealth, increasing availability of authorized personal protective equipment, and making it easier to administer eventual COVID-19 vaccines. Indeed, the Fourth Amendment appears to take the significant next step of extending PREP Act immunity to a broad variety of purely private sector activities related to the administration and prioritization of recipients of COVID-19 countermeasures.

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