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Early on in the pandemic it became clear that older individuals were at disproportionate risk of severe COVID-19 infection and death.

According to an analysis¹ conducted by the Foundation for Research on Equal Opportunity, which included data reported by May 22, 2020, an average of 42% of all COVID-19 deaths in the U.S. had occurred in nursing homes, assisted living and other long-term care facilities. This is beyond extraordinary, considering this group accounts for just 0.62% of the population.

Avik Roy, president of the Foundation for Research on Equal Opportunity, wrote an article² about their findings in Forbes, pointing out that “42% could be an undercount,” since “states like New York exclude from their nursing home death tallies those who die in a hospital, even if they were originally infected in a long-term care facility.” Roy also testified before Congress June 17, 2020, about racial disparities in COVID-19 and the health care system.³

Why Do Some States Have Exaggerated Nursing Home Death Rates?

Disturbingly, some states have nursing home mortality rates that are significantly higher than the national average of 42%. Minnesota⁴ tops the list in this regard, with 81.4% of all COVID-19 deaths having occurred in nursing homes and assisted living facilities. Ohio comes in second, with a rate of 70%.

As reported by Roy:⁵

“Another way to cut the data is to look at nursing home and assisted living facility deaths as a share of the population that lives in those facilities. On that basis, three states stand out in the negative direction: New Jersey, Massachusetts, and Connecticut.

In Massachusetts and Connecticut, COVID deaths per 10,000 nursing home and assisted living facility residents were 703 and 827, respectively. In New Jersey, nearly 10 percent of all long-term care facility residents — 954 in 10,000 — have died from the novel coronavirus.”

Thousands Have Died Unnecessarily

By and large, nursing homes are ill equipped to care for COVID-19 infected patients.⁶ They’re set up to care for elderly patients, whether they are generally healthy or have chronic health problems, but they’re not typically equipped to quarantine and care for people with highly infectious disease.

It’s logical to assume that comingling infected patients with noninfected ones in a nursing home would result in exaggerated death rates, as the elderly are far more prone to die from any infection, including the common cold.

March 17, 2020, Stanford epidemiologist John Ioannidis wrote an op-ed in STAT news,⁷ stating that “even some so-called mild or common-cold-type coronaviruses have been known for decades [to] have case fatality rates as high as 8% when they infect people in nursing homes.”

In other words, we should not be surprised that COVID-19 disproportionally affects older people. Most elderly are frail and have underlying health problems that make them more prone to death from any infection whatsoever. Since this is common knowledge, why did some states decide to violate federal guidelines and send COVID-19 patients back into nursing homes?

New York Governor in the Hot Seat

Democratic governor of New York, Andrew Cuomo, appears to have been among the most negligent in this regard. March 25, 2020, instructions from the New York Department of Health stated nursing homes were not allowed to deny admission or readmission of a COVID-19-positive patient.

Nursing homes were even “prohibited from requiring a hospitalized resident who is determined medically stable to be tested for COVID-19 prior to admission or readmission.” As reported by Roy:⁸

“As recently as April 23, Cuomo declared⁹ that nursing homes ‘don’t have a right to object’ to accepting elderly patients with active COVID infections. ‘That is the rule and that is the regulation and they have to comply with that.’

Only on May 10 — after the deaths of nearly 3,000 New York residents of nursing homes and assisted living facilities — did Cuomo stand down and partially rescind his order.”

Cuomo’s order seems particularly dubious considering the Navy hospital ship USNS Comfort was docked in New York City harbor. The ship, which had a 1,000-bed capacity, was barely used.¹⁰ It departed NYC on April 30, having treated just 182 patients.¹¹

A temporary hospital facility at the Javits Convention Center was also erected to deal with predicted hospital overflow. It had a capacity of 2,500, and closed May 1, 2020, having treated just over 1,000 patients.¹² With all that available surplus space equipped for infectious disease control, why were COVID-19 patients forced back into nursing homes where they would pose a clear infection risk to other high-risk patients?

Several Governors Violated Federal Guidelines

June 22, 2020, Centers for Medicare and Medicaid Services administrator Seema Verma condemned the actions of Cuomo and “other Democrat governors” — including Pennsylvania Gov. Tom Wolf, New Jersey Gov. Phil Murphy, Michigan Gov. Gretchen Whitmer and California Gov. Gavin Newsom — who contradicted federal guidelines for nursing homes in their own state guidance.

“Our guidance was absolutely crystal clear,” Verma said in an exclusive interview with Breitbart reporter Matthew Boyle, adding:¹³

“Any insinuation to the contrary is woefully mistaken at best and dishonest at worst. We put out our guidance on March 13 … It says … ‘When should a nursing home accept a resident who is diagnosed with COVID-19? …

A nursing home can accept a resident diagnosed with COVID-19 and still under transmission-based precautions,’ which means if this person is infectious you have to take precautions.

It says ‘as long as the facility can follow CDC guidance for transmission-based precautions.’ It says: ‘If a nursing home cannot, it must wait until these precautions are discontinued,’ meaning if you are not able to care for this patient — somebody is still positive and you’re not equipped to care for the patient, then you shouldn’t accept the patient into your care.

That’s really important because longstanding discharge — when you’re discharging a patient from the hospital, longstanding guidelines require when you transfer them somewhere you transfer them to a place that can take care of their needs whether they’re going home or they’re going to a nursing home or some other facility …

I just don’t think we should ever put a nursing home in a situation or a patient where we force them to take a patient they are not prepared to care for. That not only jeopardizes the patient but it jeopardizes the health and safety of every single resident in that nursing home.”

Stark Differences Between Nursing Homes

While Cuomo has tried to deflect criticism for his devastating nursing home directive, the facts seem to speak for themselves. ProPublica published an investigation¹⁴ June 16, 2020, comparing a New York nursing home that followed Cuomo’s order with one that refused, opting to follow the federal guidelines instead. The difference is stark.

According to ProPublica,¹⁵ by June 18, the Diamond Hill nursing home — which followed Cuomo’s directive — had lost 18 residents to COVID-19, thanks to lack of isolation and inadequate infection control. Half of the staff (about 50 people) and 58 patients were also sickened.

In comparison, Van Rensselaer Manor, a 320-bed nursing home located in the same county as Diamond Hill, which refused to follow the state’s directive and did not admit any patient suspected of having COVID-19, did not have a single COVID-19 death. A similar trend has been observed in other areas. As reported by ProPublica:¹⁶

“New York was the only state in the nation that barred testing of those being placed or returning to nursing homes. In the weeks that followed the March 25 order, COVID-19 tore through New York state’s nursing facilities, killing more than 6,000 people — about 6% of its more than 100,000 nursing home residents …

In Florida, where such transfers were barred, just 1.6% of 73,000 nursing home residents died of the virus. California, after initially moving toward a policy like New York’s, quickly revised it. So far, it has lost 2% of its 103,000 nursing home residents.”

Florida Republican Gov. Ron DeSantis actually took the opposite position with regard to nursing homes. Not only were hospitals not permitted to discharge COVID-19 patients into nursing homes, but all nursing home workers were also required to be screened for symptoms before entering facilities each day, and ensuring availability of personal protective equipment was prioritized.

In California, Los Angeles County nursing homes are such a hotspot, and local leaders describe the situation as a “pandemic within a pandemic.”¹⁷ There, the fact that many of the facilities are unusually large appears to be part of the problem.

They also have a higher percentage of people of color — another high-risk group — both working and residing in these facilities. Low pay, poor quality of care and inferior infection control add to the problem.

COVID-19 Primarily Spread in Health Care Settings

Overall, COVID-19 transmission appears to be rampant within our health care system in general, not just in nursing homes. As noted in “20% of COVID Patients Caught Disease at Hospital,” British data suggests 1 in 5 COVID-19 patients actually contracted the disease at the hospital, while being treated for something else.

SARS-CoV-2 is being transmitted not only between patients but also from health care workers to patients. When you add it all together, nursing homes and nosocomial infections (i.e., infections originating in or acquired from a hospital¹⁸), plus the spread from workers to family members, likely account for a vast majority of all COVID-19 deaths.

Without doubt, if nursing homes don’t start getting this right, they eventually won’t have enough patients to stay in business. Unfortunately, rather than tackle the problem head-on and implement sensible safety measures across the board, the nursing home industry is instead seeking immunity from COVID-19 related lawsuits. I discussed this in “COVID-19 and Nursing Homes: The No. 1 Place Not to Be.” According to NBC News:¹⁹

“So far at least six states have provided explicit immunity from coronavirus lawsuits for nursing homes, and six more have granted some form of immunity to health care providers, which legal experts say could likely be interpreted to include nursing homes …

Of the states that have addressed nursing home liability as a response to the outbreak, two — Massachusetts and New York — have passed laws that explicitly immunize the facilities. Governors in Connecticut, Georgia, Michigan and New Jersey have issued executive orders that immunize facilities.”

In other words, New York not only issued rules requiring COVID-19 infected patients to be admitted into nursing homes, and barred them from testing, it also granted nursing homes immunity against lawsuits.

Talk about triple injury. Clearly, New York nursing home patients have gotten ill and died due to willfully negligent directives. On top of that, families have been deprived of due process and any legal recourse for these beyond-reprehensible criminal actions.

Congressional Members Demand Answers

While several states have failed to protect their most vulnerable, New York’s actions stand out as being particularly egregious and, so far, no sound justifications have been forthcoming.

June 15, 2020, House Minority Whip Steve Scalise, R-La., and four Republican members of the Select Subcommittee on the Coronavirus sent letters²⁰ to the governors of New York, Michigan, California, New Jersey and Pennsylvania, demanding answers:²¹

“Why did they give those orders? Why did they go against the safety guidelines that were issued from CMS? And why won’t they give us all the disclosure of the patient information that they were giving and then all of a sudden when we started discovering this they clammed up and they’re not letting the public see what these numbers really are?” Scalise said.

Curiously, Select Subcommittee Democrats not only declined to join Republicans in the proposed nursing home oversight effort, they also refused Scalise’s call to “get to the bottom of what motivated these decisions” in New York, Michigan, California, New Jersey and Pennsylvania, and they did not sign the letters to the governors of those states.²²

In a press release by Scalise, Select Subcommittee member Jackie Walorski (R-Ind.) is quoted saying:²³

“Just about the worst possible thing to do is knowingly introduce coronavirus to the most vulnerable populations, yet that’s exactly what several states did by mandating nursing homes accept infected patients.

These misguided policies deserve close scrutiny, and the leaders who put them in place have a lot of tough questions to answer. Now is not the time to look the other way while placing blame for this crisis on states that are taking a measured, responsible approach to reopening our economy and protecting our communities.”

Sources and References

• ¹ DISRN.com May 26, 2020
• ^2, 5, 8 Forbes May 26, 2020
• ³ FreOpp.org Confronting Racial Disparities in COVID-19 and the Health Care System (PDF)
• ⁴ MPR News June 12, 2020
• ⁶ OECD.org COVID-19 in Long-Term Care Sector
• ⁷ STAT March 17, 2020
• ⁹ New York Post April 23, 2020
• ¹⁰ CNN April 3, 2020
• ¹¹ USNI News June 12, 2020
• ¹² ABC7Ny May 1, 2020
• ¹³ Breitbart June 22, 2020
• ^14, 15, 16 ProPublica June 16, 2020
• ¹⁷ Daily News June 20, 2020
• ¹⁸ Medicinenet.com Definition of Nosocomial
• ¹⁹ NBC News April 27, 2020
• ^20, 22, 23 Scalise.house.gov June 15, 2020
• ²¹ Fox News June 17, 2020
• ²⁴ CDC.gov Provisional Death Counts for COVID-19

Demand curves slope in a downward direction. This means that the higher the price, the less of an item, or good, or service, will be sought. The more road blocks, hurdles, thumb tacks, placed in the way of any given action, the less likely it will occur. Economists do not agree on many things, but on this insight there will be nary a dismal scientist who will not acquiesce.

Yet, there are several public policies in place that are incompatible with this common-sense understanding.

Consider first residential rental units. New York City, San Francisco, Cleveland and another half dozen major cities are now offering free legal advice to tenants threatened by eviction. At present this benefit is afforded mainly to those accused of a crime who cannot afford a lawyer, on the ground that such legal aid is needed to provide equal justice for rich and poor alike. Now, it is being extended to renters.

Some commentators even think that this strengthens the hands of tenants and reduces homelessness. They reckon, however, in the absence of downward sloping demand curves. They think only in terms of immediate, not long term effects. Yes, give them free legal advice and fewer people will be evicted; one point for the tenant.

But look at this from the point of view of the landlord, or, the would-be investor in residential real estate. It now becomes more difficult to evict non-paying, or obstreperous tenants. Will they be more or less likely to build, upgrade, repair, apartment dwellings? To ask this question is to answer it. They will tend to seek greener pastures elsewhere. They will try to convert extant dwellings into condominiums, commercial space, etc. But, with less residential housing available the situation of renters will become more dire, not less. Remember that downward sloping demand curve: with a lowered supply, rents will rise not fall, and a given square footage will accommodate fewer people, not more. More homelessness, here we come.

The same analysis applies to other efforts to “help” tenants. Under economic freedom, landlords may demand as much as several months’ worth of security deposits. This will indemnify them if there are damages. It will also protect them from bankruptcy since it typically takes months to evict non payers. This problem arises especially during the Christmas season; judges are particularly reluctant to toss people out onto the street during these times. Curiously, they do not at all have the same attitude regarding robbers during December. But what are non-paying tenants other than thieves of accommodation?

Next consider the labor market. In France in particular, and other countries as well, the law makes it more and more difficult to fire employees. The authorities want to protect workers, and, also, do not relish increased unemployment statistics. This “remedy” of theirs also fails to take into account downward sloping demand curves; it looks, only, to the immediate run, avoiding long run effects. For when barriers are placed in the way of laying off wage earners, less of it will occur. How do rational profit seeking entrepreneurs react? Why, by not hiring workers in the first place! Instead of offering full time employment, they take on only part timers. Firms resort to contracting out to smaller firms, or to the individuals themselves. The latter take on what are called “gigs” so as to escape these unwarranted legislative enactments.

These laws are also discriminatory. Workers can quit with no by your leave. Unless and until employers can sever relationships with employees as easily, justice, to say nothing of full employment, will not prevail.

Let us attempt to make this point in an unrelated arena of human interaction. Suppose a law were passed and fully enforced mandating that no divorce would be allowed, ever, for any reason whatsoever. The immediate effect of course would be to preserve marriage. Without the possibility of divorce, more marriages would stay intact than otherwise (we abstract from the effect of such a law on the rate of infidelity). But what would be the long run effect of such a law on this institution ? Demand curves slope downward even in this milieu. Place more barriers against an act, weddings in this case, and fewer of them will occur.

If society really has the best interests of tenants, of employees, and, also, of spouses, it will not in effect charge higher “prices” for them. The very opposite policies would be pursued.

From LRC, here.