Legal Update

Mar 26, 2021

Seventh Amendment to PREP Act Declaration Further Increases the Pool of Authorized COVID-19 Vaccinators

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On March 12, 2021, the US Department of Health and Human Services (“HHS”) amended, its Declaration under the Public Readiness and Emergency Preparedness Act (“PREP Act”) for the seventh time. The Seventh Amendment expands the category of individuals authorized to administer COVID-19 vaccines to properly trained individuals even if prescribing, dispensing, and administering vaccines is not within the scope of their license or usual responsibilities. Specifically, the Amendment action authorizes dentists, EMTs, midwives, optometrists, paramedics, physician assistants, podiatrists, respiratory therapists, and veterinarians, as well as medical students, nursing students, and other health care students in the professions listed under the PREP Act with proper training and professional supervision, to serve as vaccinators. As “covered persons” under the Act, the Amendment also affords these individuals sweeping PREP Act immunities from state and federal personal injury claims arising from the authorized administration of the vaccine (for more on PREP Act immunities, see our reporting here).

In particular, HHS’s latest amendment increases the COVID-19 vaccine workforce to now cover the following people (subject to certain training and certifications):

  1. Any midwife, paramedic, advanced or intermediate emergency medical technician (“EMT”), physician assistant, respiratory therapist, dentist, podiatrist, optometrist or veterinarian licensed or certified to practice under the law of any state;
  2. Any physician, advanced practice registered nurse, registered nurse, practical nurse, pharmacist, pharmacy intern, midwife, paramedic, advanced or intermediate EMT, respiratory therapist, dentist, physician assistant, podiatrist, optometrist, or veterinarian who has held an active license or certification under the law of any state within the last five years, which is inactive, expired or lapsed (but not from adverse action to that license); and
  3. Any medical, nursing, pharmacy, pharmacy intern, midwife, paramedic, advanced or intermediate EMT, physician assistant, respiratory therapy, dental, podiatry, optometry or veterinary student with appropriate training in administering vaccines as determined by his or her school or training program and supervision by a currently practicing health care professional experienced in administering intramuscular injections.

Like the Fifth Amendment to the Declaration, which as we reported here also added additional categories of qualified people to administer COVID-19 vaccines, any state or local law that prohibits or effectively prohibits the individuals authorized in the Seventh Amendment from administering COVID-19 vaccines is preempted.

As with the Trump Administration before it, this amendment represents a continuation of the Biden Administration’s expansion of the PREP Act in an effort to provide a pathway for states to expand and support their vaccination workforce to defeat the pandemic.