The U.S. Supreme Court will have to decide whether it will hear a nursing home Covid-19 wrongful death case involving the PREP Act — potentially interpreting the federal statute for the first time.

California-based nursing home operator Glenhaven Healthcare asked the Supreme Court to consider taking up the case in late August after the 9th U.S. Circuit Court of Appeals earlier this year upheld a lower court’s decision to keep the case in state court, according to a Bloomberg Law report.

Glenhaven contends the claims are completely preempted by the federal Public Readiness and Emergency Preparedness (PREP) Act and therefore the case has to continue in federal court.

Attorneys on behalf of the late Ricardo Saldana and his family filed a wrongful death lawsuit in May 2020 in California state court, alleging the nursing home did not provide proper protective equipment to employees nor did it identify or isolate workers or residents who had or were suspected of having Covid before others were exposed.

Glenhaven then removed the case from state to federal court but the U.S. District Court for the Central District of California disagreed with the nursing home’s arguments and sent the case back to state court in October 2020.

The argument made by nursing homes over the last two-plus years has often been used when facing negligence, wrongful death or other state law tort claims.

Similar cases are being heard, or have already been heard, all over the country. Of those that have made it to the federal appeals court stage, none have ruled that the PREP Act completely supersedes state law actions.

The PREP Act was initially designed in 2005 to ensure that the concern or threat of litigation would not disway the private sector or other necessary entities from developing and administering necessary countermeasures, according to court documents.

It remains to be seen if the Supreme Court will take the case, or make any kind of decision related to these arguments, as it receives many more petitions than the number of cases it chooses to address each term.

But Mark Reagan, a managing shareholder at Hooper Lundy & Bookman PC, told Bloomberg Law that this case has a “decent chance” to be selected.

He also represented the California Association of Health Facilities and the American Health Care Association (AHCA) as an amici or friend of the court in the 9th Circuit.

Either way, Reagan expects the case to “set the tone” for how the federal act will be applied now and in the future if any future PHE is issued, according to the Bloomberg Law report.

Scott Glovsky, one of the attorneys who represents the Saldana family, is confident that Glenhaven’s arguments will be rejected by the Supreme Court — as they have been in the other lower courts thus far.

“Glenhaven Healthcare is seeking a tortured interpretation of the law to immunize itself and the entire skilled nursing industry from liability for its failure to protect its patients,” Glovsky said in a statement.