Category Archives: COVID-19

Student Loans — A look at the issues in the Supreme Court Cases

By tmess2 | Published March 5, 2023

This past week, the United States Supreme Court heard challenges to President Biden’s program giving partial student loan forgiveness.  There are two separate cases (one brought primarily by Republican states and one brought by individuals), but the issues in the two case are relatively similar.

The first issue in both cases is standing.  For those unfamilar with standing, it derives from the Constitution’s language giving federal courts authority to decide cases and controversies.  Traditionally, courts have viewed this language as barring the ability of parties from requesting “advisory opinions” about how courts would rule if the parties did X.  As such, the courts require a real dispute.  More importantly, standing is concerned about who brings the dispute.  In simplest terms, a party can’t bring a case merely because they don’t like what the other party is doing.  The party bringing the case must be injured by the opposiing party’s actions in a way that can be fixed by the court.  Under the federal system, the state governments do not have the right to challenge the acts of the federal government merely because a given state disagrees with the federal government’s decisions. They have to show that the federal government’s acts injure that state.

For the state challenge, the lower court found standing based on the impact of loan forgiveness of MOHELA.  To understand the issue, one needs to know what MOHELA is.  Several of the states over the years have gotten heavily involved in the processing and handling of student loans.  I remember that when I was in law school, my student loans were handled by the Pennsylvania equivalent of MOHELA.  While I do not know the structural details of all of these agencies, MOHELA is somewhat equivalent to Fannie Mae.  Like Fannie Mae, MOHELA is a separate entity from the state government.  MOHELA is not a party to the case.  The question for the Supreme Court is whether Missouri has the right to speak for MOHELA.  If there is a decision in favor of the student loan forgiveness program, it is likely to be based on the theory that Missouri is not MOHELA and Missouri has not shown that it will be harmed if MOHELA is harmed.   If Missouri does not have the right to sue on behalf of MOHELA, it is unclear how any of the state governments has standing on any other theory. Continue Reading...

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Post-COVID Health Care

By tmess2 | Published December 26, 2022

We are now almost three years into dealing with COVID. Between changes to the virus and the development of vaccines, COVID has become one of those serious diseases that we just have to deal with rather than an all consuming emergency. But the response to COVID has created a political firestorm that will take years for our system to adjust.

Prior to COVID, those outside of county health departments (and their attorneys) rarely paid much attention to the laws in place to deal with contagious diseases. One of the major problems in our government (at all levels) is that (especially in those states with part time legislatures) is that nobody pays much attention to laws on the books until flaws in those laws create a serious problem. As a result, in many areas of the country, the laws still reflect a very traditional approach to pandemics and potential pandemics. For the most part, those laws allowed quarantine of sick patients and local restrictions designed to prevent the spread of disease. At the national level, quarantines of incoming travelers could also be imposed to assure that nobody was bringing in diseases.  (With all modes of travel being, compared to modern times, relatively slow, the potential for an extended quarantine was simply assumed in the planning for a business trip (and social travel of long distances was simply not common). 

These laws made sense in the nineteenth century. A significant part of the population lived in rural areas where it was easy for a family that had smallpox or similar life-threatening disease to isolate for a period of time.   And for people who lived in town, it was possible to get needed supplies to the quarantined homes by simply leaving them outside the home to be picked up after the delivery person left.  More significantly, travel was very limited and the number of jobs that were “essential” were relatively few.  While there were exceptions to the rule, goods that had to be transported from one part of the country to another tended to be more in the nature of luxury goods rather than necessities.  In short, it was possible to have a degree of success in stopping the spread of diseases by imposing strict quarantine rules without causing much of an impact on the economy.   And because of the limited contact between different parts of the country, the area subject to quarantine at any one time would be very limited as well.

In one of those coincidences, the science of fighting disease progressed somewhat faster than the science of transportation.  By the time that the car and the jet made it possible to have social travel between countries and for business people to hit six major cities in three countries within the same week, vaccines made most of the previously common deadly communicable diseases relatively rare.  In my personal experience, as an attorney to a county government, I can only remember quarantine coming up a handful of times, and some of those discussions were merely periodic reviews of policies and planning for worst case scenarios.  Because of the progression of medical science, the laws on quarantine became an “in case of emergency” backstop that were almost never used. 

Meanwhile, the changes to the global economy caused by the improvements in transportation have increased our dependency on products made by other people.  And urban/suburban vs. rural population has essentially flipped from urban areas representing around 20% of the national population prior to the Civil War to the rural population now fast approaching only 20% of the total population.  Continue Reading...

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Covid and the Supreme Court

By tmess2 | Published January 1, 2022

While many of us were enjoying time off for end-of-year holidays, the United States Supreme Court added extra work for several lawyers.   On December 22, the Supreme Court issued two orders in four cases involving two of the Biden Administration’s vaccine mandates — one involving health care workers and one involving large employers.  In these orders, the Supreme Court granted review and set the cases for expedited argument this upcoming Friday (January 7).   There are several issues worthy of comment on this order.  The first comment is a little “inside baseball.”  The other has to do with what is really happening here as oppose to how the media might comment on this case.

Starting with the inside baseball part of this issue, over the past several years, there has been growing criticism of how the Supreme Court is using the “shadow” docket.  The shadow docket is a reference to applications for stays of lower court rulings (or alternatively a request that the Supreme Court issue a temporary injunction that the lower court refused to issue).   If the application is completely frivolous, it can be denied quickly by an order.  If there is some merit, the Supreme Court might request a response.  After receiving the response, the Supreme Court typically resolves the application by an order or a brief unsigned “per curiam” opinion.  Unless some justice opts to file a concurring or dissenting opinion, the order or opinion does not note the votes of the justices.  All that we know is that, at least five justices, agreed with the order or opinion.  These cases are typically resolved without full briefing or argument.  As some significant issues have come through the shadow docket over the past several years, this process has come under some criticism.  This year, we have seen the Supreme Court opt to grant argument on three separate occasions to matters arising from the shadow docket — first on a question about ministers in the execution chamber (argued but still awaiting a decision), second on the ability to challenge the Texas abortion statute, and now on the Biden vaccine mandates.  In the first two cases, the parties did get to submit full briefs on an expedited basis.  That is not so for the vaccine mandates.  While, maybe, the Supreme Court would have gone this right under any circumstances, clearly the fact that the shadow docket is starting to become an issue is something that the Supreme Court has to be concerning to the justices.  Perhaps, the Supreme Court will continue to hold expedited argument on major issues arising on the shadow docket to avoid Congress taking action.  Only time will tell.

Turning to the merits, while the media will focus on these cases being about vaccine mandates, that framing is misleading at best and wrong in many respects.  While the cases do involve a challenge to vaccine mandates, the legal issues have very little to do with vaccine mandates.  There is no claim in these cases that vaccine mandates violate the rights of anybody.   Cases asserting a right to not be vaccinated have uniformly been rejected.  (To be blunt, those cases demonstrate the hypocrisy of the right wing of the Republican Party.  At the same time that they are asking the court to overturn Roe vs. Wade, they are bringing these cases asserting a right to bodily autonomy that depend largely on Roe.)  Instead, these cases involve two other issues.

The first issue is the Administrative Procedure Act.  Oversimplified, for most new regulations, the Administrative Procedure Act established a process that requires an opportunity for public comment before the agency issues its final rule.  For emergency situations, the administrative agency can cut that process short.  The entire concept behind these requirements is that regulations are likely to be “better” if the agency has all of the information and the concerned parties get a chance to identify flaws in the original draft.  In short, a process similar to committee hearings for legislation.  Here, the issue is whether there was a sufficient emergency to justify going outside the normal process.  On the one hand, the fact that the rules were not immediately adopted when a vaccine became available supports the argument that there was no emergency here.  On the other hand, if a global pandemic and mounting evidence of vaccine hesitancy allowing further mutations of the virus is not something that warrants a quick change in policy, I am not sure what would qualify as an emergency.

The second issue is whether the law authorizes these regulations.  This issue involves the (Anti-)Federalist Socieity’s ongoing war to repeal the New Deal and the administrative state.  So the issues should be very familiar to the readers of this site involving the Non-delegation docrtine and Chevron deference.  Simply put, for the health care workers, the issue is whether the statutes governing the Medicare/Medicaid system permit the government to enact regulations related to participation in those programs which require health care providers to implement a vaccine mandate if they want to be paid by Medicare and Medicaid.  For the large employers, the issue is whether the statutes governing the Occupational Safety and Health Administration allows that agency to implement a vaccine mandate.  Pre-1990, these answers would probably have been simple as the Supreme Court typically read grants of authority broadly and deferred to the agency’s interpretation of its statutes.  Today, the answer is less clear.

During the argument on January 7 and in whatever opinions are issued, a key focus is likely to be on what is called the “major questions” doctrine.  This doctrine is a corollary to the nondelegation doctrine, and has flourished in recent years as a pushback against agencies using old statutes to address new issues.  As currently applied, the non-delegation doctrine requires the legislature to clearly designate the standards that the administrative agency should apply in adopting new regulations.  The major questions doctrine looks, not at the standards in the relevant statutes but at the topics.  Simply put, the doctrine holds that an agency has to get new authority from Congress before expanding their authority in a way to reach a significant new topic.

The problem with the major questions doctrine is drawing the line.  The underlying concept of administrative law is that you delegate authority to departments and agencies because you expect them to develop the expertise and knowledge to address the issues assigned to them.  By definition, as things change, the regulations have to change too.  To take the Environmental Protection Agency as an example, new evidence might demonstrate that a substance that previously was believed to be harmless is actually very dangerous to health.  The rules governing what the agency can regulate remains the same, but the evidence changes the items that are appropriately covered by those regulations.  Thus, while the original Congress might have been most concerned with mercury in the water, we now realize that lead in the water is also a serious problem.  And the major questions doctrine poses the question of whether the new subject of regulation fits within the prior grant or is it something outside that prior grant of authority with the underlying concept being if something is big enough it should require a separate grant of authority.

Ultimately, that is the issue in these cases.  It is clear that the relevant statutes give the government agencies that supervise Medicare and Medicaid the power to require that providers follow good medical practices if they want to be reimbursed.  It is clear that the relevant statutes permit OSHA to take steps to protect the health of workers.  What is different is that we have not had a pandemic of this type with one-third of the population refusing to get vaccinated because they get their medical information from quacks and politicians that would rather grandstand than save lives.  In short, the government has never faced this situation before.  If the novelty of a situation precludes government agencies from acting, then there is something wrong with the law.  Of course, that is the desire of the far right which wants to, in their own words, reduce the size of government until they can strangle it in the bathtub.  Lives depend on the Supreme Court doing the right and legally correct thing.  Unfortunately, bad luck and a generation or two in which conservatives better understood the overwhelming importance of the courts creates a real possibility that the majority of this Supreme Court will do the wrong thing.

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Notes from your Doctor: Covid-19 Updates

By DocJess | Published January 25, 2021

The news about the coronavirus and various treatments and vaccines was rather dour yesterday. Luckily, as individuals we can hear and understand that knowledge and use it to inform our actions to, as best as possible, protect ourselves and our loved ones.

Variants and Mutants

  • It appears that the British variant is not only more transmissible, but also potentially more deadly.
  • The Brazilian mutant has been found in a patient in Minnesota.
  • There appears to be a “home grown” variant in California that may have contributed to the large explosion of cases and deaths.
  • The South African mutant appears to be afforded neutralizing effects by the Moderna vaccine, but potentially not by the Pfizer one. Moderna is developing a booster just in case.

Vaccines

  • AstraZeneca is going to announce to the EU version of the FDA that it is only 10% effective for people aged 65 and over, meaning it will not be approved in the US.
  • Merck has ceased work on its two vaccines as they are not showing efficacy in Phase 1 and 2 trials.
  • Johnson & Johnson may announce that they are seeking FDA Emergency Use Authorization in 2 – 3 weeks.
  • Novavax is about a third of the way to their Phase 3 target enrollments, and their protocol called for a large number of people over age 65. They are starting to see requests from participants to be unblinded, and the rate is double amoungst those over age 65.
  • West Virginia has the highest percentage of vaccinated population, mostly because they are NOT using chain pharmacies for distribution. When we look at roll out percentages, comparing State, hospital and pharmacy penetration, pharmacies outside of West Virginia do the worst.

What does it mean when something is “More Transmissible”?

I get this question a lot, and I am going to explain it in simple, non-medical terms. Think of someone smoking a cigarette, and of “transmissible” as how much smoke you can smell.

If you are outside on a windy day, you may smell a whiff of smoke from a single cigarette. The further away it is, the less you smell. You may not even see the smoke itself to smell it.

If you are in a well ventilated room where one person is smoking, you will see some smoke around them, and smell it no matter where you are in the room.

If you are in a small, poorly ventilated room and one person is smoking, you will see more smoke, it will hang longer in the air, and you’ll certainly smell it.

If you are in a small, poorly ventilated room and multiple people are smoking, there will be multiple clouds of smoke, and the smell will be pungent.

Think of the more transmissible variants as cigar smoke: they are stronger than cigarettes. The smoke from a single cigar is heavier and makes a bigger cloud than that from a single cigarette. It can be smelled from further away. Cigar smoke is more likely to “cling” to your clothes than an equal amount of cigarette smoke.

Hope that helps. While not scientifically perfect, when I start talking about viral loads and spike protein attachments, people’s eyes tend to glaze over.

Once I get the vaccine, I’m protected, right? I can go back to regular life, right?

Maybe to the first question, and a definite no to the second. The Moderna and Pfizer vaccines protect against DISEASE but we do not know if they protect against INFECTION. Understanding the difference is critical.

The vaccines have be shown to prevent disease in about 95% of the people who receive them. That means that a small percentage of recipients will get sick because their bodies did not produce the appropriate immune response. And while it looks good that the existing variants and mutants will also be protected against, there will be more changes in the virus, and the vaccines may not protect against them.

Let’s assume that you and a close friend are both vaccinated. You decide that you’ll get together like “in before times.” You hug and kiss, eat and drink. Both of you have virus particles in your nose, which you end up sharing. If the virus each of you has is the strain for which the vaccines were created, no problem. But if one of you has, say, the Brazilian variant, which has been shown to cause re-infections, it’s entirely possible that the other person could become infected and get sick. Remember, Covid causes mild illness in some people, death in others, and somewhere in between in the rest. None of us knows ahead of time into which group we fall. And people who are re-infected seem to have a worse time of it the second time around.

Finally, you need to continue to wear a mask and observe social distancing because only a small percentage of people have been vaccinated, and the vaccine does not protect you from carrying (and dispersing) virus particles from your nose. That means you might never get sick while still infecting many other people.

What should I be doing now?

Whether we get control of this scourge is a function of how quickly we can get 85% of the population vaccinated against the current strains. The sooner we accomplish this, the sooner the virus either burns out or becomes endemic. The longer it takes, the more opportunity the virus has to mutate. So, if you can get a vaccine, get one. If you know people who are offered the vaccine and turn it down, try and convince them to get it because we need to hit 85% ASAP.

If you can stay home, stay home. Yeah, I know, you have pandemic fatigue. We all do. People are depressed, anxious, eating and drinking too much. There is more violence and our kids are suffering. But more and more people are getting infected every day. They often don’t know where:

  • “All I did was go to the grocery store, and that’s always been safe.”
  • “In only had dinner with my daughter, her husband and their kids.”
  • “It was ONE drink at the bar.”
  • “I never left the house, although my kids went to school. But they’re not sick.”
  • “I was in the office, and wore my mask all the time except when I had my coffee and donut.”

If you leave your house, if you interact with another human outside your bubble (or if they had a contact outside the bubble) you are at risk.

Not everyone can stay home. Essential workers cannot. And this is not just medical personnel and first responders, most of whom have already been offered vaccines, but also grocery store workers, delivery personnel, sanitation engineers, workers at power plants, sewer treatment facilities, etc. etc. etc. But if you CAN stay home, you make it safer for all of those people who must leave to keep the world spinning.

And yes, if you can get a vaccine, risk leaving your house and get vaccinated.

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Notes from your Doctor: Let’s Talk Vaccines

By DocJess | Published September 21, 2020

There are currently 27 vaccines in Phase 1 trials, 15 in Phase 2, and 9 in Phase 3. Both China and Russia have approved vaccines, but, um, there are some problems as none were ready for prime time yet. In fact, one of the Chinese vaccines was approved for single dose, and now they’re going to give everyone who got a first dose a second one, because one dose alone didn’t confer protection.  You can see details on all of the vaccines here.

Source: New York Times, reprinted with permission.

The chart at the left presents information on the different trial phases. Sometimes Phases 1 and 2 are combined to speed up the process. And after Phase 3, there is an approval phase, although in some cases, there can be Emergency Use Limited Approvals.

These Phases are the same for the development of treatments, as well as vaccines, and sometimes for treatments, Emergency Use is a good idea. For example, let’s say that a drug for a Stage 4 cancer shows great promise. Because these patients are close to death, if a drug showed that it could buy patients an additional six months, when they only have weeks to live, Emergency/Compassionate Use may be warranted. There is limited concern about safety over efficacy if people are terminal.

With vaccines, you want to balance both safety and efficacy. You want to be sure that a vaccine offers protection and does not cause serious side effects. Can you do that in six months from molecule determination to the end of a Phase 3 study? Not hardly. Let’s be honest: we all want a vaccine. Or more accurately, all of us who see Covid-19 as a threat and not a hoax, can spell the word “science” correctly, and have ever read a newspaper, want a vaccine.

To understand what is being tested, and how those tests will be carried out, the drug companies write protocols. This is the one from Moderna. Pfizer has also published, and AstraZeneca says that they will be publishing soon. If you read it, you’ll see who they are testing their vaccine on, what they’re looking for, and what markers they will use to determine efficacy, safety and secondary considerations.

I receive a lot of questions about vaccines, so here goes….

Q: Will there be a vaccine prior to Election Day?
A: A real one? In the US? With data backing up safety and efficacy? NO.

Q: Will you, personally, take one of the vaccines?
A: Qualified yes. Before I take a vaccine, I will read all of the documentation on it that’s available. If it provides a minimum of 70% efficacy, and has shown no serious side effects for my cohort, then yes, I’ll probably take it.

Q: What does “70% efficacy” mean?
A: An efficacy rate relates to the proportionate reduction in disease among the vaccinated group. So, the measles vaccine (two doses) has an efficacy rate of 97%, meaning that almost everyone who gets the vaccine will avoid getting measles. The annual flu vaccine has an efficacy range of 50 – 70% meaning that at least half of the people who get it will either not get the disease, or, as is the case with the flu vaccine, get a much lessened set of signs and symptoms. The FDA is looking for an efficacy rate for the Covid vaccine in the 50% range, and the companies are shooting for 70%, although if you read the protocols, they are including mild illness in the 70%, which is troublesome. 

Q: If you personally take the vaccine, will you give up your mask, social distancing and limitations?
A: ABSOLUTELY NOT. I’m one of those people who believe that Covid will become endemic rather than pandemic over time. Meaning that it will become something that never goes away, like the common cold, seasonal flu or noravirus. I believe that the treatments being developed will eventually mean that Covid becomes much less deadly, and can be treated earlier in the course of the disease, but that it will stay with us. Further, until there are enough people who have taken the vaccine, and we have effective testing and tracing in place, it’s still something to avoid, which means masks, social distancing and limitations.

As an aside, I keep up with the masks and related PPE that are being developed. Many are now on Indiegogo and Kickstarter, and some will work and some won’t. In addition, established PPE companies are also developing lines. The run the gamut from “that might well work” to completely insane. BUT I believe that over the next year, these devices will be available: they will be reusable, washable, have filters that can be replaced, and some will have dedicated air supply systems. While expensive, they will be game-changers. Currently “your mask protects me, and my mask protects you” but this new generation will provide 99.7% protection to the wearer.

Q: Do you have a favorite amoung the vaccine candidates?
A: Not yet. There’s not enough information on the efficacy and safety differences between the mRNA, whole inactivated virus and DNA candidates. In addition, some candidates utilize adjuvants, which are additives making vaccines more potent, and those are still in Phase 1. Those may well be far more effective.

Q: When do you think vaccines will really be available?
A: At this time, I’m looking at next summer at the earliest for the current Phase 3 candidates. In addition to the safety and efficacy considerations, there are concerns about distribution. The Phase 3 candidates require being kept at -70oC for both transport and distribution. While certain vaccines (e.g. chicken pox) require being frozen, that’s at a higher freezing temperature (up to -15oC) and can be held in a fridge for up to 72 hours before distribution. In addition, the pharma companies producing the chicken pox vaccine provide freezers to the pediatricians and others who administer the vaccine.

I don’t know where the money for these specialized freezers will come from. Think about it: you have a freezer in your house. How cold can it go? The Administration has said that the shots will be free to all – they will need to figure out how to pay for the freezers, the transport, storage, ancillary vaccine accoutrements (e.g. alcohol swabs, band-aids, etc.) It would be unreasonable to expect already strapped local health departments, hospitals, and other distribution points to be able to cover those costs. I don’t see the funding coming out of the current Congress and approved by the Administration.

Next, the current vaccine candidates all require two shots per person. Will people be able to get those shots at the same location? If not, who will update the databases to know who got which shot when and where? Who will be in charge of the data: will it be at the Federal level or the State level? How will coordination with local distributors be undertaken?

There are close to 330 million Americans, meaning that 700 million doses of vaccine are necessary. How quickly can they be manufactured, stored and distributed? And when we talk manufacturing, they need to not only make the vaccine itself, but the vials, needles, etc. so there are supply chain considerations.

Thus, when I look at “vaccine” I think in terms of the logistics: not just of having an appropriate candidate but being able to get it to people, and I don’t see that happening anytime soon.

Q: You said there are two shots per person. Is that it?
A: Unlikely. There’s a better chance that this will be a vaccine, like a flu vaccine, that needs to be taken annually, or at least on some schedule. While safety and efficacy testing is going on, there is no possible way to know how long protection is afforded until years have passed.

Now, we would know if protection was afforded only for a few months, and we would know that quickly. Pretend that there is a vaccine that is safe and highly effective. But six months after the second dose was given to the Phase 3 volunteers many of them suddenly came down with Covid. We would then know that it only lasted more like five months. But will it last a year? Two years? Five? We can only know that over a period of years. Certainly blood tests will be available to show whether or not individuals have neutralizing antibodies and/or T-cell protection over time, and that’s informative, but not a guarantee of long-term protection. It’s only of the problems with rushing through a vaccine.

Q: If I take a vaccine, and a better one comes out later, can I take that one too?
A: Most likely yes. Zostavax was the original shingles vaccine. It provided about 50% efficacy for those aged 50 – 70, and less after age 70. But it was all there was, so many people took it. When Shingrex came out two years ago, everyone over age 50 was advised to get it, as it had efficacy of 97%. There was no downside to the people who had already taken Zostavax.

I expect that people will take multiple Covid vaccines over time, and it shouldn’t be a problem to segue to a different version with higher efficacy.

_______________________________________________

Please let me know if I missed a question you’d like answered.

 

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Polling Places, Polling Judges, and COVID-19

By tmess2 | Published July 28, 2020

As we head into the late state and congressional primaries and get ready for the general election, we are faced with a recurring issue aggravated by COVID-19.  We have a very decentralized election infrastructure in this country.  There are certain benefits to the decentralized nature of elections in the United States, but there are also several big problems.

The benefits of a decentralized infrastructure is that it is very, very difficult to engage in election fraud large enough to make a difference in any election other than, maybe, the local mayor’s race in a small town.  In my state, there are over 100 election authorities and 3,600 precincts.  So you can possibly devise a scheme to stuff the ballot box in a handful of precincts or handful of counties (especially if the election judges nominally representing one party actually belong to the other party).  But you really need a close election for that to make a difference and you really need to add a lot of votes in those small number of precincts (enough to probably stand out).   The disadvantage is that it is hard to get everyone to follow best practices, especially as many local election authorities have other duties and are elected based on something other than their ability to properly conduct an election.

When it comes to elections, there are several big decisions committed to the discretion of the local election authority.  First, election authorities get to choose how many precincts there are (and where those precincts are located).  In theory, there are multiple factors that the election authority should consider — availability of buildings, local traffic patterns, parking in the vicinity, public transportation, the number of voters in particular precincts.  But most states give little guidance as far as maximum size of precincts.

Second, election authorities get to pick the election judges and choose which precinct they are assigned to.  While my state requires a minimum of four judges per precincts (no maximum) and that the judges be balanced between the two parties (with at least two from each party with the remainder potentially including independents), my state also does not register voters by party.  As a result, in some places, it is debatable whether all of the Democrats working as judges are actually Democrats and all of the Republicans are actually Republicans.  The lack of a maximum number of judges can offset the decision to have a larger precinct.  For example, I live in the largest precinct in my county (over 3,000 registered voters but with typically slightly lower numbers actually voting).  By have multiple teams of judges (each team has two judges) and dividing the precinct alphabetically between the teams, you have effectively created multiple precincts in one polling place (as long as there is enough parking space for the heavy voting time) and reduced the amount of delay.   Likewise, election authorities get to choose the teams who do the review and counting of absentee ballots which can speed up or delay that process.

Third, again with some state-imposed limits,

Third, ultimately standards have to be applied by human beings.  And these standards matter when it comes to rejecting or accepting provisional or absentee votes.  While the state can define what the election authority should be looking at in reviewing absentee and provisional ballots, things like whether signatures match is a judgment call.  Further, the election authority can either go the extra mile in helping voters who go to the wrong precinct (having staff present to handle those questions) or can make voters contact a central office and figure out where to go for themselves.

Fourth, election authorities — within limits imposed by their state — get to choose their voting machines and which venders print the ballots and program the counting machines.  So, it is hard to get every election authority to switch to better machines and to get rid of old problem machines, especially given other competing demands on local budgets.

Now how does this fit into COVID-19.  COVID-19 has a potential to throw a monkey wrench into elections in two ways as we have seen so far.

At the most basic level, voters have to decide how safe their precinct is.  Election authorities can take steps to reduce the risks to voters by imposing social distancing rules at their precincts.  And if the precinct has enough space and few enough voters, voting can be no more risky than going to the supermarket.  (In my county, even in my precinct, I think that we have probably taken enough steps that, if you can choose your own time to vote, you can probably vote safely.)  But not every precinct in every county has the ability to do social distancing.

At the same time election judges have to choose how safe it is.  As we saw in Wisconsin, if election judges start opting out for health reasons, election authorities will probably have to reduce the number of precincts making it harder and less safe to vote in-person on election day.  And, in most of this country (especially for the general election), elections are held on weekdays.  And, most important, election day is not a holiday.  That means that elections workers have to take the day off from work.  As there are typically, several elections per year and election authorities prefer dependable judges who can work all of the elections that means that most election judges tend to be retirees.  And in the era of COVID-19, retirees tend to be a high risk group.  In short, the failure of state to make election day a holiday (and require election authorities to hold trainings outside normal working hours) means that most election judges are exactly the people who should not be spending thirteen hours interacting with potentially infected individuals.

Finally, it is back to those standards for judging which absentee ballots are acceptable.  In many states, election authorities do not get to even look at mail-in absentee ballots (beyond recording their receipt) until election day.  In some states, a high number of absentee ballots are rejected.  And there is no requirement that election authorities contact a voter to let them know that their absentee ballot is being rejected or give them an opportunity to cure the reason for rejection.  (Even worse, the standard may not be consistently applied across jurisdictions.  An election authority in a small county with few absentee ballots might go the extra mile to help voters fix problems with their absentee ballots.  An election authority in a large county, however, may lack the resources to deal with thousands of potentially invalid ballots.  In the absence of a law requiring them to make the effort, staff may focus on other concerns.)    And if you can’t trust your election authority to process your absentee ballot properly, you may feel that you have no choice but to try to vote in-person or just skip the election.

And this feeds into the final issue for this year’s election.  While some states usually have a decent number of absentee (i.e. mail-in) ballots, other states have few ballots mailed-in with almost all voters casting in -person ballots (whether on election day or in early voting).  If health concerns cause an uptick in absentee ballots, it is less than clear that most election authorities are ready to respond.  We have already had complaints that some election authorities simply could not process all ballot applications quickly enough and get ballots mailed to voters in enough time for voters to mail their ballots back.  And we have seen election authorities struggle to count the ballots after the election.  They simply did not have enough judges available to process the ballots quickly or machines designed to quickly count that many ballots.    And, if election authorities take longer than usual to count ballots and close states start swinging back and forth in the days after the election, the agents of chaos and authoritarianism will start making reckless and unsupported allegations challenging the accuracy of the count.

This election is one in which turnout may decide several key races.   While I am currently optimistic about Joe Biden, I can easily see control of the Senate, several governorships, and several state houses coming down to 1 or 2% of the vote.  And there is enough problems that people have with voting.  COVID-19 and a series of rules designed to make it hard to vote by mail in some states could make the difference.  It would be nice if every state would change their laws to account for this year’s problem, but many reddish states will not.  Even if they change their minds, time is running out to get things in place for November.

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What Everyone is Getting Wrong about COVID

By DocJess | Published June 25, 2020

The frames for the discussion on how the US deals with COVID fall into two camps:

  • Save the economy vs lockdown the country
  • Wear a mask vs don’t wear a mask

So long as that’s what everyone concentrates on, the disease will not be “managed” until there is a set of vaccines (different vaccines will be necessary for different cohorts) and effective treatment protocols. And that’s not going to be near-term. Until that happens, cases will continue to rise, and will keep spreading, and it will happen stealthily, that is, we won’t know it’s a problem until after it is already a disaster. UNLESS we re-frame the discussion and adopt a program that will work to stem the spread. Honest, other countries have done it, and we need to do it here.

This is the United States, where politics trumps reality far too often. We have no national leadership, and we won’t until such time as the Orange Menace has been removed to the cell he so richly deserves and takes his minions with him. Therefore, solutions need to be at the state and local level, and there actually ARE ways to do this, get the case counts down, and simultaneously keep as much of the economy operational as possible.

What everyone forgets is the information on pandemic control “below the fold”. That means test as many people as possible, isolate the positives, and seriously contact trace. And yes, New York is the exact model that every state and locale should follow. Because it works. That means not only testing, tracing and isolating, but providing daily, transparent data at a micro level.

Tests are available, and tests are free. If you have insurance, they’ll take your card and bill your insurer, but the cost to you should be either zero or minimal. The more people who are tested, the better the chances of finding out where coronavirus is hiding. And it is hiding. Until we find it, it will keep spreading. The ONLY job the virus has is to infect every single person. That’s what it will do. If we can’t find it, we can’t get the R-Naught down below 0.8, which is where we need to be. For example, here in PA, the lowest transmission rate we’ve had was .82 in April, and our rate has been rising statewide since May 7th. It won’t be a disaster for another couple weeks, but it will keep rising because we are neither testing enough nor tracing nor isolating. You can see your state data here. And remember, there is a lag between date of infection, hospitalization, ICU and death. And that doesn’t even include the number of people who are permanently damaged or disabled from having a mild to moderate case of the disease. Not to mention the inflammatory syndrome in kids.

Testing doesn’t matter if there is no way to isolate people who are positive, whether they are symptomatic or asymptomatic. Municipalities and regions need hotels and other options for people who cannot isolate at home. If you are positive, and you go home to a place shared with other people, there is a high probability they too will become infected.

Testing is less effective if there is no contact tracing. If someone is positive, that person was infected by another person, and likely passed it on to one or more additional people. The chances of someone getting infected if he/she lives alone, and has 100% of everything delivered and has had no human contact since the original lockdown is zero. Contact tracing, testing contacts and then isolating the infected is what brought infection rates down in every single country that has successfully beaten back the scourge.

So what can you do? I hear you: “But I wear a mask, never touch my face, socially distance and wash my hands until the skin is coming off.” Should you be doing those things? ABSOLUTELY. But unless everyone does it, it’s not enough. Therefore, do this:

  1. Go get tested.
  2. Convince everyone you know to get tested.
  3. Call/write your local and state reps to allocate funding for contact tracing and isolation facilities. The system in most places (except NY) is not really viable. Here’s an example.
  4. Contact your city, county and state Health Department to get them to collect and disseminate data about daily new cases at the zip code level, percent positives, number of people tested, hospitalizations, ICU bed utilization, and deaths. That data needs to be tracked and disseminated daily. NOT total numbers to date, but accurate, daily numbers. The earlier trends can be spotted, the earlier they can be handled.

If you are unemployed, take a course (many are free) and get certified to be a contact tracer. Here’s one. Then apply for a job doing so. One of the reasons for a lack of contact tracing is a lack of people to do it. In addition, in many places, they are using unpaid volunteers – if you’ve got the time, find a local program to help in the effort.

In addition, if you can stay home. STAY HOME. Certainly, this isn’t an option for everyone, but if there is any possible way that you can minimize your interaction with other humans outside your household, do so.

The American economy is dependent on consumers buying goods and services: if you can, find a way to contribute to the economy, especially the local economy. But do it in a way that minimizes your interactions with other people. It’s a fallacy to believe that “opening” the economy while the virus is rampant will “save” the economy because if people don’t have confidence, they won’t spend money even if places are open. And as we’ve seen, often places re-open, and then close a day or two later because a worker or a customer tests positive, which brings us back to why testing is so critical.

To support businesses, consider curbside pickup in lieu of going inside – this provides the same amount of income to the vendor, and minimizes human contact. If you want to support your “touch” provider (e.g. hairdresser, manicurist, massage therapist, etc.) consider paying what you’d pay and then not getting the service. Certainly, not everyone can afford this, but if you can, this is the time to spread your money around. If you want to avail yourself of restaurant food and drink – stick to curbside instead of “dining in”.  It costs the restaurants less to serve you, they do less work, you’re still supporting them, and above all – please tip your server/delivery person well — they depend on tips.

As the numbers go up, most people are frightened, and should be. In the vacuum where leadership should be, it’s incumbent on each of us to do what we can to stay safe, and keep others safe. So get tested, and pester your officials to do all that’s possible on a local level. What EACH AND EVERY one of us does affects the case count. We can each be as diligent as the New Yorkers who faced the earliest assault were, or at the other end of the spectrum, we can be the covidiots who protested for the right to get their hair cut, refused to follow protocol, and are now part of the case count.

The choice belongs to each of us – be diligent, stay safe, and pressure all your elected officials to set up programs to test, trace and isolate.

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Dems move Milwaukee convention to convention center, delegates need not travel

By Matt | Published June 24, 2020

It will be the first Democratic convention in a convention center since 1984 in San Francisco, and the first major party convention in a convention center since the GOP in San Diego in 1996:

The Democratic National Convention will move out of Milwaukee’s professional basketball arena, and state delegations are being urged not to travel to the city because of concerns about the coronavirus pandemic, party officials said Wednesday.

…

The Democratic convention will be “anchored” in Milwaukee, but the four-night mid-August event will “include both live broadcasts and curated content from Milwaukee and other satellite cities, locations and landmarks across the country,” according to a news release. Continue Reading...

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Notes from your Doctor: Surviving the Next Phase of Coronavirus

By DocJess | Published June 13, 2020

As you know, case counts are rising across the country, at last count, in 23 states, with 15 states showing their highest case counts since before they shut down. In some places, hospitals are days away from being overwhelmed. And yet, no one is planning on new lockdowns, most are planning further re-openings. To be fair, Oregon and Utah are pausing moving forward.

There is no national policy on what to do, nor how to handle things, so states are left on their own. In some states, governors say things like “we expected that there would be more cases” as hospitals implement emergency plans. That gem is courtesy of Doug Ducey of Arizona. In addition, if you are one of those who go out, you’ve indubitably seen fewer people wearing masks and observing social distancing.

WHAT IS A PERSON TO DO???

There are three major groups of people at this juncture. First, the people who believe that it’s all over, and it’s safe to go out, and if people end up sick or dead, so be it. If you’re one of those people, stop reading now, this article is not for you. At the other end of the spectrum, there are those who, due to physical condition and/or financial ability, are committed to staying in until there’s a vaccine. But most people either have to go out because they need to work, or are at the point where they need to find a way to negotiate living in a world where they just cannot stay cooped up in their houses for the next several years.

For those who are working outside your home, keep doing what you’re doing. Wear your mask AT ALL TIMES, observe the best amount of social distancing you can, wash those hands for a minimum of 20 seconds every chance you get, and use hand sanitizer if you can’t get to a sink. Your hands cannot be too clean. And THANK  YOU!

For those of you who are business owners desperate to get back to your shops, practices, offices, job sites, farms and plants, you have required rules and guidance from your individual states.

But what about those people who can work from home, or are retired, but want to get out a bit?

First, assess the risks. You know your personal risk: it’s either “average” or “high”. Then, know your community risk. You can access some amount of data about your area, and from that data, assess how prevalent coronavirus is in your immediate area.

There are a number of ways to do this, but the best way is to READ several legitimate sources. There is a lack of both transparency and consistency between sources, so it’s best to have a system that will give you the best possible information. If you live in New York, read the NY Forward dashboards at the bottom of the main screen. This is the best, most transparent site around. And it’s a shame that more states (Or Hey! The Whole Country) doesn’t adopt the same system.

If you don’t live in NY, you’ll need multiple sources. Below is my system, in the order that I check it every day.

  1. Worldometer – this site has higher numbers than everyone else. Their data sources are as local as they can get. Throughout the day, the chart of states will update as they collect the data from the individual states. Some states link to their data.
  2. CNN – while their data sources vary, scrolling down to look at the 7-day averages by state is a quick and easy way to view statewide trends.
  3. Effective Transmission Rate – This site will show you the transmission rate for a state. It’s a similar metric to the infection rate shown in the site below. It’s instructive because you can see quickly who’s red and green, and scroll down to see your state over time. However, it is only statewide, and as we know, local is everything, which brings us to….
  4. Covid Act Now – This site is well sourced, but dependent on state data, which varies by state. Some states are still conflating PCR and antibody test rates. But they provide several stats that are hard to find elsewhere, and you can see the data by county, which will help you assess your local risk.

The Covid Act Now site shows data by both state and county. While often the hospital rate is inaccurate since in some places hospitals are more regional than county, the infection rate and positive test rate are what you want to look at.

An infection rate UNDER 1 means that coronavirus is not spreading as each infected person is infecting LESS than one person. Above 1 means that each infected person is infecting MORE than one person. Once you hit 1.2, the rate of infection is increasing, and it’s BAD.

You also want to look at the positive test rate. The lower the number, the better. This tells you what percentage of people who are tested are positive. If the number is 50%, it means that half the people tested are positive, and likely they are only testing symptomatic people — when there was a dearth of tests, and the only people tested were, say, in hospitals, that number in some areas approached 80% positive. The goal is a positive test rate of 2% or under — at that rate ENOUGH people are being tested. Continue Reading...

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Notes from Your Doctor: Can I Touch Surfaces?

By DocJess | Published May 22, 2020

The news reported last night that it was safe to touch surfaces. Um, not exactly correct.

The CDC website says:

It may be possible that a person can get COVID-19 by touching a surface or object that has the virus on it and then touching their own mouth, nose, or possibly their eyes. This is not thought to be the main way the virus spreads, but we are still learning more about this virus. (emphasis mine.)

Studies have shown coronavirus (and other viruses, bacteria and fungi) being active for hours on some surfaces, and up to a week on others. And Scott Gottlieb, MD former Commissioner of the FDA, is as unimpressed as I am.

The actual nuanced point that the CDC was trying to make (and understanding that they are being muzzled by the Administration) was that you are MORE likely to contract COVID-19 from another human than you are from a surface. And that’s true. What is NOT true is that you are completely safe touching various surfaces.

So what makes sense? Let’s look at two examples at opposite ends of the spectrum: a metal door handle at a public place, and the handle of a paper shopping bag. There is something called “viral load” which relates to how much virus is in how much blood, the higher the load, the more severe the condition. “Viral load” does not apply outside the body, but a corollary would be: how much of a risk is there predicated on how contaminated something might be?

If you are walking into a grocery store and need to pull the door handle, you’d consider how many people touched it since the last time it was disinfected. Of those people, how many might have asymptomatic coronavirus and touched their faces before touching the door? Touching that door is far less risky than being three feet away from an asymptomatic carrier who is not wearing a mask and who sneezes in your direction, but if you touch that door, you should still sanitize your hands asap, and definitely before touching your face, and you should wash your hands with soap and water as soon as you get home.

At the other end of the spectrum, let’s say that a friend brings you a present (or your medication, or a piece of fruit) in a paper shopping bag. He puts it down and moves back, and you pick it up. The chances of transference from that handle are far lower for the following reasons: first, it was touched by your friend, or ONE person, not many. Second, your friend would have to be an asymptomatic carrier, and have touched his face before putting the bag down and would have needed to touch just the spot that you did. Finally, paper (and cardboard) are far less likely to harbor pathogens than metal, and for a much shorter time.

So here is the guidance that is followed in my house, none of which has changed since the new CDC guidance:

  • Mail is placed in a pile. Letters are opened after 24 hours, shiny things (like magazines) are given 48 hours. Hands are washed after the mail is brought in.
  • Shipped Packages: Everything stays outside overnight and is opened the next day. Hands are washed afterwards.
  • Grocery Deliveries: Perishables are wiped and put away. Everything else sits for at least 24 hours, and we don’t wipe them.
  • Restaurant Food Deliveries: Every container is wiped, food transferred to bowls and dishes, and the packaging is immediately tossed.
  • Going Places: We generally don’t go anywhere, but occasionally we have to. I wear a small container of hand sanitizer on a lanyard around my neck, and loan it to my husband. Therefore, if we have to go through a door, we can immediately sanitize, and the lanyard and holder are disinfected when we get home. Another option is to have a paper towel in your pocket that you can use on the door, and then drop in the trash. (Please don’t litter.) We have not gone food shopping since this started, but if we did….my process would be to wear gloves in the store, touch as little as possible, stay as far as possible from anyone else, and on exiting the store, take my gloves off inside out and drop them in the trash, and immediately sanitize my hands. Once I got in the car, I’d sanitize again and properly remove my mask for the drive home by taking the elastic off one ear, and taking the mask off without touching the face covering part. The mask would then be dropped on the floor of the passenger side. A few days later, I’d put it in the washing machine. Once home, perishables would come in and be wiped and put away, and the food would stay in the car. (Once it gets hot, the non-perishables would be brought in and the bags left for 24 hours).

Is this extreme? Perhaps. But my approach is simple. These methods are easy, and don’t take a lot of time or effort. Are we LIKELY to get coronavirus from the mail, or a package or a grocery delivery? No. But is the chance zero? Also no. However, taking precautions on a regular basis has the added benefit of providing “muscle memory”. This is a theory from exercise that says you can train your muscles to do certain things. There is back and forth on the truth of that. However, if you embed something in your memory banks, it’s likely to stick with you. For example, if when you come into your house you always put your keys on a peg by the door, it becomes a learned process that you end up not thinking about, you just do it. (As an aside, I hope people end up feeling that way about voting, but I digress.)

So, if you get in the habit of being mindful about washing your hands, and sanitizing them when you’re out, and always wearing a mask and thinking before you touch something or get too close to someone, these are things that will stick with you as the world re-opens. We are all human, and all humans make mistakes. The more things you can put on “automatic pilot”, the more likely you are to avoid a mistake. And mistakes with coronavirus can be deadly.

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