Aaron E. Carroll's Blog, page 60

Emergency Public Health Powers in Michigan

Yesterday, I canvassed the Michigan governor’s emergency powers, which are surprisingly broad. But they do not cover the waterfront of emergency authority in the state. The director of the Michigan Department of Health and Human Services—currently Robert Gordon—has his own suite of emergency powers.

Once the M-DHHS director determines “that control of an epidemic is necessary to protect the public health,” the Michigan Public Health Code authorizes him to issue “emergency orders” that, among other things, to “prohibit the gathering of people for any purpose.” MCL 333.2253(1). Director Gordon could draw on this authority to adopt statewide or county-specific shelter-in-place rule along the lines of what we’ve seen so far in California.

Emergency orders can also “establish procedures to be followed during the epidemic to insure continuation of essential public health services and enforcement of health laws.” MCL 333.2253(1). The authority here is really broad: the Code clarifies that “emergency procedures shall not be limited to this code,” meaning that the director could adopt rules for areas that he doesn’t normally oversee. The director, for example, could probably draw on this power to adopt new rules for prisons or other state institutions if he feared that prison outbreaks could compromise “essential public health services.”

Violation of one of these emergency orders is a misdemeanor, with a maximum prison term of no more than six months. MCL 333.2261. The director can also create a schedule of fines, not to exceed $1,000 per day, for any violations.

In addition, when the director believes that a crisis “constitute[s] a menace to the public health,” he “may take full charge of the administration” of any laws or rules as necessary to address that menace. MCL 333.2251. As I read it, for example, the director could effectively direct the activities of county and local public health agencies, even if they normally fall outside the ambit of his authority.

Beyond emergency orders, the director can issue targeted orders to eliminate an “imminent danger” to public health. MCL 333.2251. Though the Code contemplates that these orders will be tailored to particular individuals or discrete groups—it says they “shall be delivered to a person authorized to avoid, correct, or remove the imminent danger or be posted at or near the imminent danger”—the orders may be useful if the pandemic moves into a phrase in which we are testing widely for coronavirus and isolating positive cases.

Even more to the point, the director has specific authorities with respect to suspected “carriers” of infectious diseases. When such a person is either unwilling or unable to stop putting other people at risk, M-DHHS can serve a warning notice on them. If that notice is ignored, the agency can seek an emergency order from the court and have the carrier taken into custody. MCL 333.5205 & 333.5207; see also MCL 333.2453. The procedure is clunky, however, so it’s unlikely to come into play at this stage of the pandemic.

Finally, M-DHHS has broad authority to “offer free immunization treatments to the public in case of an epidemic or threatened epidemic.” If we get a vaccine, this authority will be key (though the legislature will need to appropriate the money necessary to secure an adequate supply of the vaccine). Conceivably, the director could also issue an emergency order requiring people to get vaccinated if doing so was necessary to protect the broader public health. But we are a long way from that eventuality.

@nicholas_bagley

Is Closing the Schools a Good Idea?

The following originally appeared on The Upshot (copyright 2020, The New York Times Company)

Even as we take significant steps to distance ourselves from one another to “flatten the curve” of the coronavirus pandemic, one of the hardest decisions has been whether to close schools.

There are strong arguments on both sides.

The case for shutting down schools

The biggest concern of many experts is that if we get too many infections too fast, the number of sick people could overwhelm the system’s capacity to care for them. By slowing transmission in the population, we flatten the curve, and keep the number of people sick at any one time at a manageable number.

Although most children do not appear to suffer much when they contract the virus (many probably don’t even know they’re sick), they do contract it, and they can give it to others.

Adults can be given instructions on how to prevent person-to-person transmission, and can be relied upon to follow those instructions to varying degrees, but it’s almost impossible to get children, especially younger ones, to do so. If you have a child, you most likely rolled your eyes if you read my recent article about the importance of getting children to wash their hands rigorously, cough into their elbows only, and not touch their face.

Further, the school environment is well suited to spread disease. Students are often packed into small classrooms, where it’s impossible to sit six feet apart. They mingle and form other similar groups by changing rooms to go to different classes. They are put into one large room to eat together, sitting side by side.

It’s not just children that we need to worry about. Plenty of adults work in schools: teachers, janitors, food preparation workers and more. They’re all being put at risk by keeping schools open. Arguably they’re more at risk than many other workers at businesses that have already been shut down.

Closing schools can make a big difference in flattening the curve, evidence from past epidemics shows. A study in Nature in 2006 that modeled an influenza outbreak found that closing school during the peak of a pandemic could reduce the peak attack rate, or speed of spread, by 40 percent. Another study in 2016 in BMC Infectious Diseases found that, based on the H1N1 pandemic of 2009, closing schools could reduce the attack rate up to 25 percent and the peak weekly incidence, or rate of new cases, by more than 50 percent.

Even the Spanish flu pandemic of 1918-1919 provides some data. Comparing cities that took action with those that did not, researchers reported in a study in JAMA in 2007 that measures like school closings contributed to significant reductions in the peak death rate as well as overall deaths.

China and South Korea closed all their schools, and they’re seeing a significant flattening of the curve.

The case against shutting down schools

Children are a clear and present danger when it comes to influenza, and almost all of the research cited so far here is based on that. We don’t know whether the studies necessarily apply to coronavirus.

There is also the obvious downside of disruptions to education. Some schools can move to online learning, but not all are prepared. Not all students have access to the internet at home, let alone computers or devices with which they can actively participate in e-learning.

Missing half a semester, which is what many schools are looking at, is a significant hit to education. It will take many students a lot of time and effort to catch up.

There are also effects related to child care. Something like 1.5 million students are homeless in the U.S. For some, school is the only safe space. Many more can’t just stay at home alone. Unless parents can also work from home, and many cannot, children will either be left unsupervised or watched by others, perhaps grandparents. That is possibly the worst outcome because older people are at highest risk of serious illness and death.

We are also facing a potential health care worker shortage. If such workers are forced to skip work to take care of their children, that’s a problem.

Finally, there’s food. Almost 30 million children in America depend on the school lunch program. Almost 15 million depend on it for breakfast, too. If schools are closed with no steps taken to continue to feed them, they will go hungry.

All of these considerations made the decision to shut New York City’s schools highly contentious.

It’s not as if schools must close. They could change their routines. They could commit to increased physical distancing; more and regular hand washing; daily screening; and increased cleaning. Singapore didn’t close schools, and officials there are achieving remarkable success at limiting transmission.

A growing consensus

More and more schools have chosen to close in the past few days, reflecting a growing consensus that the benefits of closings outweigh the harms, especially since many of the harms can be mitigated.

A transition to e-learning is possible. So is making sure that parents receive paid sick leave so that children aren’t left with grandparents. It’s possible to provide child care to health workers or those at risk (indeed, many places are doing this). And it’s possible to make sure that food can be delivered or picked up by families that need it.

Many of the changes to make school safer are harder to do, such as cutting class sizes. Short of major structural renovations, we can’t prevent transmission from child to child, and then to adults, if schools remain open. We also can’t currently test the way we’d need to in order to target students who need to be quarantined at home.

The immediate goal is to flatten the curve so that the peak infection rate stays manageable. With better testing and screening, it’s possible to imagine keeping schools open and still protecting families. Failing that, and we in the U.S. have been failing so far, school closures and significant physical distancing are starting to look like the best bet.

@aaronecarroll

 

Emergency Powers in Michigan

With just 80 confirmed cases, Michigan has so far been spared an acute outbreak of the coronavirus. But our time is coming. Already, Governor Whitmer has taken steps to slow the virus’s spread, including closing schools and restaurants and banning large public gatherings. She will have to get much more aggressive in the coming weeks and months.

Now is an especially auspicious time to take stock of the governor’s emergency powers. Though I’ll focus on Michigan, other states have similar laws on the books, so this post may be instructive if you’re trying to get a bead in general on what powers state can use to cope with the pandemic. I’ll leave the governor’s powers under her public health authorities for a future post.

* * *

Under the Emergency Management Act, the Michigan governor can declare a state of disaster in response to a severe risk of loss of life arising from, among other things, an “epidemic.” MCL 30.402(e). During a disaster, she has the authority to “issue executive orders, proclamations, and directives having the force and effect of law.” MCL 30.403(2).

That’s a startling amount of power. During disasters, the Michigan legislature has effectively delegated to the governor the power to make whatever laws she deems appropriate. Governor Whitmer drew on that authority when she closed schools, restaurants, and large public gatherings.

There are only a few guardrails. Willful disobedience of a gubernatorial order or directive only constitutes a misdemeanor, not a felony. MCL 300.405(3). And the Act “shall not be construed” to allow for interference in a labor dispute or for the regulation of news reporting. MCL 30.417. Otherwise, the Act’s delegation of lawmaking power is vast.

* * *

Drilling down, the Act contemplates that the governor may need to requisition the use of both public and private property. On the public side, she may “utilize the available resources of the state and its political subdivisions” and transfer authorities among state departments. MCL 30.405(1)(b). The governor, for example, could draw on that power to requisition public schools for use as overflow spaces for hospitals.

On the private side, the Act specifies that the governor may “commandeer or utilize private property” as necessary to cope with the emergency, “[s]ubject to appropriate compensation, as authorized by the legislature.” MCL 30.405(d). Though the governor may not use that power to confiscate any “lawfully possessed firearms or ammunition,” MCL 30.405(2), it is otherwise open-ended.

So Governor Whitmer could, if she wished, commandeer a privately owned stadium, convention center, or church as overflow treatment spaces. If necessary, she could even requisition an entire hospital and dedicate it to coronavirus treatment.

While the question is not entirely free from doubt, a legislative authorization of “appropriate compensation” does not need to come prior to any commandeering. Rather, “[a] record of all property taken or otherwise used” must be sent to the governor, implying that she’ll keep a running tally of the state’s obligations. MCL 30.406(2). If a claimant disputes the amount that the state offers, the claimant can sue in the state court of claims to determine appropriate compensation.

* * *

The governor has the power not only to make laws, but to unmake them. She can suspend any regulatory law or rule when strict adherence would “prevent, hinder, or delay necessary action.” MCL 30.405(a). (She can’t, however, suspend criminal process or procedures.)

Governor Whitmer, for example, could exercise her authority to alter or amend any licensing or scope-of-practice rules for medical providers. Doing so could enable her to quickly move retired physicians or trainees onto the front lines.

Intriguingly, the Act automatically provides that any physicians, nurses, hospitals, or other medical providers who provide services in connection with a declared emergency are immune from liability for routine negligence, though not gross negligence. MCL 30.411(4). That’s really good news: some doctors report that they fear liability for refusing to admit or for discharging patients who are in less dire need of medical attention.

Even apart from medical professionals, the governor—or, more specifically, the state director of emergency management—is empowered to offer the same kind of protection to any “donor or supplier” of “voluntary or private assistance.” MCL 30.407(6). The governor, for example, could create a liability shield for non-professional volunteers who offered to care for people confined to school gyms or church basements.

* * *

To aid in carrying out her directives, the governor is free to exploit any and all of the state’s available resources, including those of the police departments and fire departments. MCL 30.405(b). She can also shuffle powers among state and municipal agencies as she sees fit. MCL 30.405(c).

Beyond that, the governor can “order to active state service any members of the Michigan National Guard.” MCL 32.551. The Act then contemplates that the Guard will “engage in emergency or disaster relief,” and cross-references the governor’s emergency powers under the Emergency Management Act. MCL 32.579(2). At least seven states have already drawn on similar authority to activate their National Guards, which are assisting in food delivery and decontamination. Governor Whitmer could do the same here.

Startlingly, the governor even has the authority to declare martial law in any county or city in which National Guard troops are serving. MCL 32.575.

@nicholas_bagley

Coronavirus Questions and Answers 3-18-2020

Aaron Carroll answers your coronavirus questions.

(Questions are time stamped in the video description.)

 

@DrTiff_

Your COVID-19 thoughts are not crazy

I’ve spent the last several days having conversations with various colleagues, friends, and family members about the COVID-19 pandemic. The one general truth about all these conversations is this: People are in different places emotionally and thinking about different facets of the crisis.

Some are more-or-less in step with the media narrative, which is generally short-term focused. (I say this without judgement. This is fine.) They are upset, and upset in particular about the challenges of disruption to daily routines for them and their families. They are concerned with the response of politicians, local and national. All natural. All normal. Those in this place have the advantage that many, many others are with them. This is a shared experience.

Then there are some that are thinking beyond the immediate. Some are thinking a few weeks to months ahead. What happens if school is closed for the year? What happens when family or friends get sick, even die?

Some are thinking many months ahead. How do we get to herd immunity safely? How long until people cannot tolerate staying in their homes, working from home? Will this unwind gracefully or badly? What about next school year? What about the election? And so on.

This is also normal, but people thinking much further ahead may feel much more isolated with their thoughts because it’s not where the most others or the media seem to be (yet). I have spoken to several people who don’t know what to do with these thoughts. They feel they cannot articulate them on Twitter. They worry they’re too speculative. They feel their family or friends can’t handle them or don’t want to hear them.

I do, and I’ve spoken about them in individual conversations. But my point isn’t to articulate those concerns here, but just to say that it is OK to have these thoughts. You are not crazy to worry about the future and future problems just because few others seem to be. I assure you, many are, they just aren’t saying so.

It is important not to be and feel alone in this crisis. Find someone to talk to about all your concerns, but naturally don’t freak anyone out who isn’t ready. Use your community and resources as best you can. Seek professional help as you need it. You are welcome to email or tweet them at me, if nothing else.

This is hard. You are not crazy. You are not alone.

@afrakt

Here’s the Biggest Thing to Worry About With Coronavirus

The following originally appeared on The Upshot (copyright 2020, The New York Times Company)

The ability of the American health care system to absorb a shock — what experts call surge capacity — is much weaker than many believe.

As a medical doctor who analyzes health issues for The Upshot, I strive to place your fears in context and usually tell you that you shouldn’t be nearly as afraid as you are. But when it comes to the nation’s response to the new coronavirus, I cannot be so reassuring.

A crucial thing to understand about the coronavirus threat — and it’s playing out grimly in Italy — is the difference between the total number of people who might get sick and the number who might get sick at the same time. Our country has only 2.8 hospital beds per 1,000 people. That’s fewer than in Italy (3.2), China (4.3) and South Korea (12.3), all of which have had struggles. More important, there are only so many intensive care beds and ventilators.

It’s estimated that we have about 45,000 intensive care unit beds in the United States. In a moderate outbreak, about 200,000 Americans would need one.

A recent report from the Center for Health Security at Johns Hopkins estimated that there were about 160,000 ventilators available for patient care. That may seem like a lot, and under normal circumstances, it is. Pandemics, however, change the calculations.

A few years earlier, the same group modeled how many ventilators would be needed in unusual circumstances. In a pandemic akin to the flu pandemics in 1957 or 1968, about 65,000 people might need ventilation.

Hospitals don’t survive financially in the United States by keeping beds open and equipment idle. They have enough equipment to be cost-effective, but still retain capacity to care for extra people in emergencies. But those emergencies do not account for what we are seeing now. It’s very possible that many of the ventilators are being used right now for patients with other illnesses. They’re also not mobile, and local outbreaks will quickly surpass the numbers of ventilators and respiratory therapists.

Moreover, if a pandemic more closely followed the model of the Spanish flu outbreak of 1918, we would need more than 740,000 ventilators.

Many people are comparing this virus to the flu. The thing to remember, though, is that the influenza numbers are spread out over eight months or more. They don’t increase exponentially over the course of weeks, as the cases of Covid-19 are doing right now.

Further, a greater proportion of people who are becoming ill now are seriously sick. According to some estimates, 10 percent to 20 percent of those who are infected may require hospitalization. In a metropolitan setting, if enough people become infected, the numbers who may need significant care will easily overwhelm our capacity to provide it.

The cautionary tale is Italy. More than 12,000 people have been infected there; more than 800 have died. A little over 1,000 have recovered. Many of the rest are ill. And a significant number of them need to be hospitalized — right now.

This has exceeded Italy’s capacity for care. It doesn’t matter what physicians’ specialties are — they’re treating coronavirus. As health care providers fall ill, Italy is having trouble replacing them. Elective procedures have been canceled. People who need care for other reasons are having trouble finding space.

In an unthinkable fashion, physicians are having to ration care. They’re having to choose whom to treat, and whom to ignore.

They’re having to choose who will die.

Italy, especially Northern Italy, has a solid health care system. It might not be the best in the world, but it’s certainly not lacking in ability. It’s just not ready for the sudden influx of cases. There aren’t enough physicians. There’s not enough equipment.

The United States isn’t better prepared.

Many health experts expect that a majority of people will eventually be exposed to, if not infected with, this virus. The total number of infected people isn’t what scares many epidemiologists. It’s how many are infected at the same time.

An unchecked pandemic will lead to an ever-quickening rate of infection. If, however, we engage in social distancing, proper quarantining and proper hygiene, we can slow the rate of spread, and make sure there are enough resources to properly care for everyone. This can also buy us time for a vaccine to be developed.

South Korea has flattened its curve by engaging in extreme testing and social distancing. It has set up drive-through screening stations so people can check if they’re infected without putting others at risk. As of Sunday, almost 190,000 people there had been tested for the virus. That allowed a more targeted quarantine of infected people.

We have no real idea how many people in the United States are infected. We’re still woefully behind in testing.

Colleges are closing campuses left and right because they’re worried — correctly — about spring break, and the potential for students to travel, become infected and then spread the disease among other students and faculty in the next few weeks. But the rest of us have much harder decisions to make.

Studies show that when children are prevented from being a high-transmitter group, deaths among older people are significantly reduced. But closing elementary, middle and high schools could do more harm than good if parents are still working. This could mean children are left in the care of older people (i.e., grandparents), and of course that places those most vulnerable at higher risk.

Further, many children rely on schools for food. Without planning on how to get them meals if school is canceled, this could result in many going hungry.

What might help the most is comprehensive paid sick leave from work. The people who are ill — or who need to care for children who are ill — need to be able to stay home and not expose others to illness. If that doesn’t happen, everyone is at higher risk.

Of course, general advice still applies. Wash your hands (that can’t be stressed enough), don’t touch your face, cough and sneeze into your elbow, stay away from sick people, and stay away from people when you’re sick yourself.

We have a window to get hold of this, but it’s closing rapidly. The initial travel restrictions to China probably made a big difference, but we failed to follow up appropriately, The decisions made in the last week to increase social distancing — including canceling many large gatherings across the country — are necessary but not sufficient.

We need data, meaning the ability to test more people to understand where community transmission might be occurring. We need to protect those who are most vulnerable, supporting their ability to self-quarantine. We need to convince people who might be sick, even mildly so, to stay home. And we need to make it economically possible for them to do so.

Without quick action, what we’re seeing in other countries may happen here, with terrible consequences.

@aaronecarroll

 

 

This Is One Anxiety We Should Eliminate for the Coronavirus Outbreak

Over at the New York Times, Dave Anderson (the indefatigable blogger at Balloon Juice) and I have a new op-ed on the risks of surprise billing in connection with coronavirus.

In a coronavirus pandemic, a patient can do everything right and still face substantial surprise bills. Take someone who fears that she may have contracted Covid-19. After self-quarantining for a week, she develops severe shortness of breath. Her partner rushes her to the nearest in-network emergency room. But she’s actually seen by an out-of-network doctor — who may soon send her a hefty bill for the visit.

Matters get worse if the in-network hospital is approaching capacity and the patient is healthy enough to be sent to a hospital across town with spare beds. If the second hospital is outside her insurance network, she could potentially receive a second surprise bill. A third could come from the ambulance that transfers her — it too might not be in-network, and no one will think to check during a crisis. She could get a fourth surprise bill if her coronavirus tests are sent to an out-of-network lab. And so on.

Even in normal times, patients with private insurance receive roughly one surprise bill for every 10 inpatient hospital admissions.

These are not normal times.

Like my prior post on why federal law will prevent states from mandating coronavirus tests, the op-ed explores how a preexisting problem in our health-care system—ERISA there, surprise billing here—will create difficulties in coping with the coronavirus pandemic. Every one of the system’s many warts will show.

@nicholas_bagley

The Coronavirus and Long-Term Care

The sick and elderly in long term care facilities are particularly vulnerable to COVID-19. Worse, many aspects of long-term care facilities make them conducive to rapid spread of infectious disease.

We’re talking about a large population. According to the National Center for Health Statistics (NCHS), “about 65,600 paid, regulated, long-term care services providers”—by this, NCHS means facilities, not staff—“in five major sectors served more than 8.3 million people in the United States.” Caring for the elderly is a full-time job for about 1.5 million people.

Of those 8.3 million, about 286,300 adults are in adult daycare centers. The rest are in nursing homes, hospice care, and other types of residential care. Under ordinary conditions, long-term care facilities are vulnerable to outbreaks of respiratory illness. Large groups of patients are cohabiting in a confined setting with communal meals and many group social activities. Many residents are incapable of practicing the levels of personal hygiene required to stop transmission.

But these are not ordinary conditions. A COVID-19 outbreak has already occurred in a nursing home in Kirkland, Washington:

[Kirkland Life Care Center], about 20 minutes north of Seattle, has been battling a coronavirus outbreak for weeks. Since the outbreak started, 26 of the center’s residents have died, 13 of whom were confirmed to have COVID-19, the disease the coronavirus causes. Some others who died have not yet been tested.

We will see more of these stories in the coming days. The elderly and those with compromised health are the groups at the highest risk of dying from COVID-19. Most people in long-term care meet both criteria.

As outbreaks proliferate in long-term facilities, the health-care system will come under serious strain. To begin with, long-term care facilities are neither designed nor equipped to treat patients with serious COVID-19. They have limited abilities to isolate patients, and they do not have ventilators. Staff are not trained to provide this kind of care. They don’t have the personal protective equipment to protect themselves from infection and doing their jobs in protective gear would be difficult.

That’s by design, not negligence. Residential facilities care for elderly patients in a setting that is less expensive than a hospital. Once you start adding acute or intensive care beds to a long-term care facility, you will have just built another hospital (and a poorly functioning one at that). Long-term care facilities are meant to work in parallel with hospitals. When residents become acutely ill, they’re transferred to hospitals that can provide that care.

About one-third of nursing homes house 100 or more patients. If COVID-19 sweeps through a single facility, this surge in case load could overwhelm local hospital capacity. Or the hospital may already have every bed occupied, so that no new patient can be admitted. And if patients cannot be moved to a hospital they will be in peril.

The second challenge is about staffing. The 1.5 million people who work in long-term care facilities will be at high risk when their facilities have COVID-19 outbreaks. Already, scores of employees were infected at Kirkland. When staff get infected, they will be quarantined. Who will take over those shifts? Even before the pandemic, it was hard to recruit qualified long-term care workers.

Absenteeism will be significant. Some staff members will not come to work because they are afraid of getting sick. Others are single parents. With school closures, they may need to stay home to care for their children. Staff who remain will end up working longer shifts. Care will deteriorate as staffing levels fall, raising the risk of COVID-19 outbreaks still further.

Long-term care facilities understand the risks. In response, they’ve begun adopting strict access and visitation restrictions. Indeed, CMS announced yesterday that nursing homes should not allow any visitors unless it is for “an end-of-life situation.”

But locking down long-term care facilities—probably for several months, and perhaps longer—raises its own concerns. Many long-term care residents are elderly and socially isolated; they depend on frequent visits from family and friends to socialize with them. Without these visits, residents may feel increasingly lonely, abandoned, and despondent. That’s a medical problem in its own right, leading to depression, weight loss, and disruptive behavior.

As troubling, family visits are a crucial technique for monitoring quality of care. With visits curtailed and staff absenteeism rising, the quality of care—already low in many facilities—is likely to decline further. And we will have only limited visibility into the full scope of the problem.

In short, we have 8 million sick and elderly patients at high risk from COVID-19. They reside in fragile long-term care facilities, and those facilities have limited backup from the hospitals. Over a million staff members care for them, and they are also at risk. And there may be a tsunami of COVID-19 cases coming.

So, what can we do? First, political leaders need to put this looming crisis front and center. We’ve heard a lot about hospitals becoming overwhelmed. But we have heard little or no discussion of the nursing home population by the President or his team. Long-term care residences should be priority sites for SARS-CoV-2 testing and personal protective equipment.

Second, the staff at long-term care facilities must have paid sick leave. It is a setup for disaster if employees keep working despite being ill themselves. The deal that Congress has apparently cut with the White House will help, but it’s patchy, exempting with more than 500 workers—including most nursing home chains—and allowing firms with fewer than 50 to apply for hardship exemptions.

Third, President Trump’s emergency declaration unlocks CMS’s authority to relax enrollment barriers for Medicaid beneficiaries. The agency should exercise that authority immediately across the country. Many of the staff at long-term facilities are not well-compensated and will qualify for Medicaid, especially if they lose wages as a result of COVID-19. Bureaucratic roadblocks shouldn’t discourage them from enrolling.

Fourth, state officials must redouble inspections at long-term care facilities. They need to make sure that the facilities are adequately staffed, that the residents’ needs are being met, and that infection control procedures are being followed. With family visits banned, we will otherwise have no visibility at all into nursing homes. If we do not watch closely, there is an acute risk that millions of elderly people might be effectively abandoned as the outbreak intensifies.

Fifth, when staff are ill, quarantined, or absent, we need to be ready to hire and quickly train replacements. CMS should consider relaxing certification and licensure requirements for health aides and nursing assistants. State policymakers should give the green light for trainees at nursing schools to start working. Attracting replacements may require raising compensation. So be it: that’s how markets work. An emergency bill to increase the amount that Medicare and Medicaid pay for long-term care could save lives.

For now, however, the most important thing we can do is minimize the transmission of the virus through disciplined hygiene and social distancing. The fewer people who get infected in the general population, the lower the risk of infection for long-term care residents. Likewise, the fewer of us in the general population who get hospitalized, the more hospital capacity will be available for long-term residents.

Bill Gardner, David States, and Nicholas Bagley

Can the CDC pay for everyone’s coronavirus testing?

I drafted the following before the House of Representatives struck an apparent deal with the White House to pass a bill to cover coronavirus testing. Should that deal fall through, the post could become newly relevant. It may also be of interest because it discusses the federal government’s quarantine powers with respect to infectious diseases.

At a committee hearing on Thursday, Representative Katie Porter coaxed what appeared to be a commitment from Robert Redfield, Director of the Centers for Disease Control. He seemed to say that he would exercise his authority to guarantee cost-free access to coronavirus testing. Video of the encounter went viral; Porter said she had done “the legal research” and that “the Administration has the authority to make testing free to every American TODAY.”

What was she referring to? Is Representative Porter right? And can we trust the Director Redfield’s apparent commitment?

In her questioning, Representative Porter invoked 42 C.F.R. §71.30, a rule adopted by the Department of Health and Human Services in coordination with the CDC. Most recently amended in 2016 in the wake of Ebola, MERS, and measles outbreaks, the provision forms part of a broader suite of rules that aim to prevent the spread of infectious diseases.

The rules were adopted pursuant an old law that broadly empowers CDC to “make and enforce such regulations as in [its] judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.” In other words, the CDC is supposed to devise rules (1) to stop diseases from coming into the country and (2) to prevent them from spreading from state to state.

The CDC’s rules track that two-part allocation of power: Part 70 applies to “interstate quarantine” and Part 71 applies to “foreign quarantine” As you might expect, the rules governing foreign quarantine allow federal officials to inspect planes, trains, or automobiles at the borders. Anyone who the CDC believes may be infected can be quarantined, isolated, or placed under surveillance. They can also be forced to undergo a medical examination.

Which brings us back to Representative Porter’s questioning. The rule she invoked—section 71.30—authorizes the CDC to “authorize payment for the care and treatment of individuals subject to medical examination, quarantine, isolation, and conditional release.” Which makes sense: if you’re going to order someone into quarantine and make them undergo a battery of tests, you don’t want to have to worry about their insurance status.

Representative Porter wants to use that power to have the federal government pick up the tab for nationwide coronavirus testing. But the rule she invoked is in Part 71—meaning that it only applies to foreign quarantine, and even then only with respect to medical examinations conducted pursuant to a federal quarantine order.

So section 71.30 is the right tool if you want to prevent MERS patients from coming into the country. It’s not the right tool if what you’re hoping to do is prevent community spread of a virus that’s already here.

Representative Porter shouldn’t be looking to Part 71, but to Part 70, which contains the rules governing the interstate spread of communicable diseases. And Part 70 contains a similar provision—section 70.13—authorizing the CDC to pay for medical examinations and quarantines.

Even under section 70.13, however, the CDC’s authority to pay for nationwide testing is not so clear. Most urgently, any payment is “subject to the availability of appropriations.” Though Congress’s emergency funding bill allocated $2.2 billion to CDC “to prevent, prepare for, and respond to coronavirus,” much of that money will be spent on other urgent priorities. And if Congress hasn’t provided sufficient resources to pay for nationwide testing, that’s the ballgame.

But assume the money is there. The rules are still an awkward fit. As drafted, they’re really about involuntary quarantines—not voluntary testing.

Once the CDC identifies individuals or discrete groups who are at risk of carrying an infectious disease, the rules say that the agency can issue “a Federal order” to quarantine, isolate, or surveil them. But that order has to include a whole lot of specific information: the identities of the individual or group, the location of any quarantine, and why the CDC thinks it would be a bad idea for them to travel from state to state.

Once a quarantine, isolation, or surveillance order is in place, the CDC can force people to undergo a medical examination. Section 70.13 then allows CDC to pay the examination if the person doesn’t have insurance. That payment authority, however, lasts only as long as “the time period beginning when the [CDC] refers the individual or group to the hospital or medical facility.”

This scheme works well if you’ve got a recalcitrant patient who was exposed to Ebola, is about to drive over state lines, and refuses to be treated. But the rules aren’t a good fit for a pandemic with flu-like spread. Is the CDC supposed to enter an isolation order covering the whole country? Is it supposed to refer everyone in the country to a “hospital or medical facility”? Would every person in the nation be entitled to a “medical review” at which she can “present witnesses and testimony,” as the rules contemplate?

None of this is to say that the rules can’t be stretched to cover coronavirus testing. The Director could potentially issue an order saying that everyone should isolate themselves. In connection with that order, he could declare that everyone who meets loose testing criteria (e.g., suffering from a respiratory illness) is at risk of fostering interstate transmission, that each such patient ought to be given a “medical examination,” and that the federal government will pick up the tab if the patient doesn’t have insurance.

Is that stretching the rules past the breaking point? Maybe. But the Trump administration has acted more lawlessly and with less justification on many occasions over the past three years.

A cleaner solution would be for CDC to amend its regulations—and, during an emergency, to do so without adhering to cumbersome rules that slow things down. A new set of regulations (and sufficient money) would secure the legality of paying for coronavirus testing.

I fear, however, that the CDC Director may not see matters the same way now that he’s out from under the white-hot heat of Representative Porter’s questioning. And if he reneges on his commitment—and I worry he will—it’s really up to Congress to move. The legislature could pass a bill tomorrow that would commit the federal government to paying for every coronavirus test.

And it should. In the face of a national crisis, lawyers and legislators shouldn’t have to pore over the Code of Federal Regulations with a fine-toothed comb. Congress should fix the damn problem itself—and now.

@nicholas_bagley

Flattening the Curve of Coronavirus Infections

Our message on coronavirus so far has been, “don’t panic.” For the vast majority of individuals, coronavirus is not an existential threat. However, the rapid rate of the virus’s spread has the potential to overwhelm our health system and cause a LOT of problems.

 

@DrTiff_