Army nurses test a resident of a nursing home in New Jersey. US Army photo by Spc. Miguel Pena.

One of the greatest tragedies in the larger tragedy of the COVID-19 pandemic is the fact that, from the earliest days of the outbreak in the US, it was especially deadly for people in long-term care facilities, who were already more vulnerable because of their age, and often packed together without adequate personal protective equipment for workers, let alone enough tests to spot new outbreaks, or careful screening of employees. Worse, the federal government didn't even bother collecting data on infections in nursing homes until late April.

Remember Rachel Maddow being absolutely livid about only being able to find information on outbreaks and deaths in nursing homes by scanning local newspaper and TV station websites? It's a national disgrace, and as of mid-August, the New York Times estimated that 41 percent of all COVID-19 deaths (about 68,000 as of August 13, the most recent update) have been in long-term care facilities.

So thank goodness the feds are finally doing something, beyond Mike Pence delivering some supplies (without wearing a mask) to a nursing home back in May, and FEMA distributing garbage and calling it PPE. The Justice Department last week announced it had sent letters to four states' governors demanding detailed information on COVID-19 infections and deaths in state-run nursing homes, with a warning that DOJ might have to open an investigation under the federal Civil Rights of Institutionalized Persons Act (CRIPA).

Excuse me, Dok, did you not just say rampant deaths in nursing homes were a national disgrace? Guess those four states must have been the absolute worst, huh? We're sure Donald Trump would say the DOJ is going after the very worst states, because the four states being scrutinized — New York, New Jersey, Michigan, and Pennsylvania — all have Democratic governors who've been critical of Trump's handling of the pandemic. So yes, definite enemies of the people.


The request for information is the first step in a possible investigation to determine whether the states violated residents' rights by issuing orders to nursing homes to admit patients who'd been hospitalized for COVID-19, as long as they were medically stable. Fox News and the Murdoch-owned New York Post have been especially noisy in saying that New York Gov. Andrew Cuomo's order was responsible for vast numbers of nursing home deaths, although the federal government's own data show the state with the highest rate of deaths in long-term care is Massachusetts, with more than double New York's average deaths per thousand residents. Did Massachusetts Gov. Charlie Baker get a DOJ nastygram? Heck no, he's a Republican.

Attorneys Samuel Bagenstos and Margo Schlanger, who have both served in the DOJ's Civil Rights Division during saner times, argue in an op-ed at Slate that the government could be using its authority under CRIPA to investigate conditions in aggregate institutions — not just nursing homes, but also prisons and jails — to make those places healthier for people to be in, or better, to place many of them in community-based situations where they'd be at less risk.

That is not, however, what the DOJ's actions were about. Instead, the department is acting in a transparently political manner. Throughout the pandemic, the DOJ has failed to take key steps to use CRIPA to protect residents of congregate facilities. Last week's letters [...] will do nothing meaningful to protect those residents.

The selective attention on four Democratic governors misses states where conditions are far worse. In addition to Massachusetts, they point out, Republican-governed Arizona, Maryland, and Mississippi are all in the top ten in death rates, while New York and Michigan come in at 11th and 12th.

Begenstos and Schlanger also point out that Florida

has experienced more nursing home deaths (both absolutely and as a percentage of total COVID deaths) than has Michigan, yet the DOJ actually singled Florida out for praise in the press release it issued last week.

Oh gosh, and Florida has a Trump-adoring Republican governor, and is vital to Trump's reelection campaign. What a coincidence!

To polish that turd, we'd add, the press release plays the sort of dishonest statistical games the Trump administration loves, praising Florida and Texas for having a lower COVID-19 death rate in the pandemic than New York for the overall population, even though the DOJ action is supposedly only meant to focus on problems in nursing homes. Numbers are fun to lie with!

The real outrage, the attorneys argue, is that the DOJ hasn't used CRIPA to make and enforce rules for prisons and jails, all of which really would be covered by the law — and which have been the sites of some of America's largest outbreaks. UCLA's COVID-19 Behind Bars Data Project has tallied more than 1,000 deaths among inmates and staff nationwide. But nah, this administration considers some people expendable.

But what about those terrible rules requiring nursing homes to admit people discharged from hospitals, regardless of whether they still test positive for COVID-19? The DOJ places that front and center, claiming the rules "may have resulted in the deaths of thousands of elderly nursing home residents." The press release sure makes that sound ominous, framing New York's March 25 order as if it were incredibly reckless.

Except as Cuomo and Michigan Gov. Gretchen Whitmer pointed out in response to the DOJ announcement, the rules were based on medical and anti-discrimination guidelines put forward by the Centers for Disease Control and Prevention and by the Centers for Medicare and Medicaid Services (CMS), which regulates nursing homes.

What's more, they argued, similar rules were in place in 14 states, including Arizona, Kentucky, and Utah, but only Democratic governors were targeted for potential investigations. (The week of the Republican convention. And right after several governors had criticized the Trump administration for directing the CDC to change its testing guidelines to reduce the total case count.) Whitmer and Cuomo wrote in their statement, "DOJ should send a letter to CMS and CDC since the States' advisories were modeled after their guidance."

Also, as Politico notes, the data don't appear to back the Right's argument that Cuomo's order led to mass deaths in New York nursing homes.

A state report released last month, meanwhile, concluded that thousands of coronavirus-related deaths in such facilities were largely driven by community spread from infected staff or visitors in the early days of the state's Covid-19 outbreak — not the March 25 transfer policy.

Golly, a very cynical person might even conclude that this is just one more example of Justice Department corruption under Bill Barr: what matters is settling scores and feeding the rightwing outrage machine, not making sure nursing homes are safe. For the most part, the Right hasn't given a rat's ass about older Americans during the pandemic — just think of all the "let Nana die for the economy" arguments. But if you can use the nursing home crisis as a cudgel against Democrats in an election year, well then, at least Nana died in service of the great cause of reelecting Donald Trump.

[Slate / Politico / WaPo]

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Doktor Zoom

Doktor Zoom's real name is Marty Kelley, and he lives in the wilds of Boise, Idaho. He is not a medical doctor, but does have a real PhD in Rhetoric. You should definitely donate some money to this little mommyblog where he has finally found acceptance and cat pictures. He is on maternity leave until 2033. Here is his Twitter, also. His quest to avoid prolixity is not going so great.

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