I’ve been pressed for time lately, as I do my share to add to the unemployment rate, but I couldn’t resist one thought in the form of a bleg, or query. For a month now, I’ve been seeing social media posts by people I respect (and many I don’t)–left, right, center, libertarian, and otherwise–criticizing Governors Cuomo and Murphy of New York and New Jersey of responsibility for mass death in the case of the the nursing homes in those states. Indeed, Cuomo himself has issued a mea culpa of sorts for doing whatever he’s supposed to have done wrong.
In a month’s time, I have not been able to make sense of this accusation–including Cuomo’s mea culpa. I understand that Cuomo is confessing to something; I just don’t understand what the charge is supposed to have been. Counter-intuitive as this may seem, I don’t assume that if someone makes a confession, the confession must therefore be true. The confession could itself be politically motivated. It might be more convenient to confess falsely to something than explain the complicated truth to people uninterested in processing it.
In the dozens of instances that I’ve seen, the accusation of malfeasance (up to and including “mass murder”) is either based on false factual assumptions, or on logical fallacies, or on tacit assumptions that are regarded as self-evident but never made explicit. To belabor the obvious, an accusation based on the first two things can’t stand. As for the third, I’d like to see an explicit account of the assumptions in question. I don’t find them self-evident at all.
When I’ve challenged the people making these accusations, they’ve typically gotten angry and defensive, accusing me of being overly aggressive in my questioning, and/or of having some ulterior ideological agenda in posing the questions. But I’d have thought that an accusation of mass murder was itself pretty aggressive. And the only ulterior ideological agenda I have, if you want to call it that, is to understand what these people are talking about. Because I literally do not understand what accusation they are trying to make, much less the basis for whatever this accusation is supposed to be.
Photo credit: Chris Carlson, Associated Press
As I say, I’ve seen the accusation made by people of virtually every ideological stripe–leftists who want to blame capitalism for the nursing home deaths, right-wingers or libertarians who want to blame government for them, centrists who want to show that they’re unconventional enough to attack otherwise popular governors, virtue-signalers who want to show that they, too, can be outraged about something and demand that you join in, etc. I’m asking something more basic. What are they talking about? What is the charge? What is the evidence for it? If someone is to be blamed for these deaths, who is to be blamed for what, and why?
I don’t have the time to moderate the comments on this post. Nor, in general, am I going to respond to the comments I get, except to ask for simple clarifications of fact or semantics–like a sentence or two just to grasp what someone is saying. Otherwise, consider this an open thread on the nursing home topic with Khawaja mostly AWOL.
What I’m really interested to see is an argument to the conclusion that Murphy and/or Cuomo committed some terrible but avoidable malfeasance that produced greater loss of life (or some other bad result) than would have occurred had they taken some alternative course of action available to them (or available to someone). Links to articles, etc. that make a contribution to that end would be cool, too. But so far, either the arguments I’ve seen for the murder/malfeasance accusation are really bad, or I’m just too dumb, ill-informed, or morally insensitive to understand them. I’d honestly like to figure out which of those two things happens to be true.
(Changed the title a few days after posting.)
Policy of Truth 
https://www.nbcnewyork.com/news/local/cuomo-reverses-nursing-home-directive-to-take-covid-19-patients-requires-more-staff-testing/2410533/
“Hospitals cannot release patients to nursing homes in New York unless the patient tests negative for the virus, Cuomo said Sunday. The governor’s announcement is a reversal of sorts from a March order by the state’s health department requiring nursing home to accept recovering patients.”
It’s pretty easy to fill in a plausible story about how having Policy A instead of Policy B resulted in more dead folks in nursing homes, right? Of course, there are many questions: (a) how contagious were such recovering patients? (b) how many additional such patients were taken in by nursing homes as a result of the initial order (the point of this order being presumably to relieve congestion at hospitals — at the time, a big concern)? and, more broadly, (c) was this a substantial contributor to the carnage at the nursing homes? I’d be interested in good answers to these and other questions as well.
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No, that doesn’t do it. It omits too many relevant facts, and falls too easily for Cuomo’s later misdirection (which effectively throws Murphy under the bus).
Go back to March. In March, hospitals in New York and New Jersey faced an outright emergency. They feared, correctly, being overwhelmed by critical care patients despite every effort they’d made to expand their critical care facilities and personnel. So the hospitals began to discharge non-critically-ill patients, whether they remained COVID positive or not. Since many of these patients were elderly, many had come from nursing homes. Since many had come from nursing homes, it was assumed that when discharged, they would go back to the nursing homes from which they’d come.
The governors’ order mandated that these nursing homes take back their own residents whether those residents were COVID positive or not. Question: why was that wrong? If the nursing homes had not taken them back, where would they have gone? What should have been done with them? There were, at the time, no intermediate quarantine facilities for these patients (hotels, field hospitals, college dorms, etc). I kept close track of that because I was advocating for the re-purposing of unused facilities into quarantine facilities. Recall my posts on how colleges should repurpose dorm rooms, and how the Indian government had repurposed railway cars, etc. That was eventually done, but it came later in the sequence. Meantime, at the time when the order was given (in March), it was not clear where else but nursing homes such discharged patients were to go.
Perhaps the hospitals were wrong to discharge such patients, but that was their decision, not the governors’. And it’s not clear they were wrong to do that at the time.
People have responded that the governors should have known that the nursing homes were unable to accommodate COVID positive patients. Two responses. First, if not them, who? The patients were after all residents of those nursing homes. This may not be true in every case, but in many cases, the nursing homes had contractual obligations to take those patients back (this is a complicated legal matter that would require reading every contract, case by case). I can see why they wouldn’t want to, but surely it’s plausible to see why they should be forced to? Forcing them was in effect an ad hoc specific performance remedy for a breach of contract. It is not obvious to me why that was wrong, much less “murder.”
Beyond that, in New Jersey at least, the nursing homes were given fair warning (in early March) of the need to make accommodations for the re-admission of their own COVID-positive residents. So fast forward to the end of March and the beginning of April when the hospitals started discharging the relevant patients. Clearly, the nursing homes hadn’t made the relevant accommodations (to take back their own residents). But if so, how is that the governors’ fault? Maybe early March wasn’t early enough, but consider that the proprietors of nursing homes had as much access to information as the state governments did. And they had as much of a stake in paying attention to it as the state governments did. So why didn’t they do their due diligence and prepare? Even if we blame the governors, why shouldn’t we in the same breath blame the nursing homes?
Of course, I concede that the nursing homes were in a tough spot. But so were the governors. So if we go easy on the nursing homes, why not go easy on the governors?
It is convenient for Cuomo to have ordered the nursing homes to accept COVID positive patients back in March, then offer a mea culpa and reverse himself later, as per your article above–now that the curve has been flattened and the hospitals are no longer discharging patients at the same rate as they were in March (because there are fewer patients to discharge, and there’s less of a worry about critical care capacity). But this ignores the fact that different things were happening at different times. His reversal took place after the resolution of the problem that the original order was intended to resolve. His mea culpa and reversal are not what they seem. They are not a reversal of a policy that was wrong to start with, but a change in a policy that made sense at the time but no longer has application. The real question is: why would Cuomo do this? Why would he think it more politically expedient to claim to have made a pardonable error than explain that circumstances forced a change in policy?
Note, however, that Murphy has made no comparable admission. He hasn’t confessed to having done anything wrong in the way that Cuomo has. In this respect, I think Murphy’s handling of the issue has been more honest and more straightforward than Cuomo’s.
It’s easy to come up with a story about how the policy resulted in more dead folks in nursing homes. It is not easy to come up with a story about how the policy resulted in more dead folks. More to the point, it is not easy to come up with a story about how the policy resulted in more dead folks if we grant that they had a right to return to their residences–which were the nursing homes ordered to take them back.
It’s true that nursing homes were highly conducive to community spread, maybe more so than ordinary homes. So yes, if I am residing at Smith’s Nursing Home, then go to the hospital in respiratory arrest, am discharged while still positive, and instead of returning to Smith’s Nursing Home, return to the home of some relative who will take me, the overall mortality rate will probably end up lower. That is a plausible story, but not a trivially obvious one. But it only applies to the case where I have somewhere to go.
Suppose I have nowhere to go? Where do I go? A homeless shelter? The street? Is the hospital forced to keep me admitted? What if forcing the hospital to do that produces other mortalities for lack of resources to handle incoming cases? In those cases, how do we get better mortality figures than we ended up with? Even if we do, what are the morbidity figures? The question then becomes: who had a place to go, and who didn’t? Can that kind of thing really be figured out on the spot in the middle of an incoming wave of patients? Those are among the many, many questions that need to be asked and answered before this “nursing home massacre” story achieves the status of truth. What bothers me is that it’s achieved that status well in advance of anyone’s asking or answering the relevant questions.
I grant that eventually, the state governments arranged things so that there were places for such patients to go. But it’s not as though the nursing homes did that. The very governors who are being accused of mass murder are the ones who arranged for alternative arrangements to the (dangerous) ones that obtained in the nursing homes. So didn’t they save lives as well as “take” them? Of course, once things calmed down, the governors then reversed their original order. To offer an apology for doing so, as Cuomo has, strikes me as the equivalent of a political shell game, or at least a muddying of the waters.
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You made me break my resolution not to comment at length. So if that adversely affects my job search, I will, in the spirit of COVID-19 irrationality, blame you for the opportunity costs of answering at such length. Not only that, here I am, “taking a break” by writing another comment.
Here is a typical article on the nursing home issue. About 80% of it focuses on irrelevancies. It asks almost none of the relevant questions, even with respect to the material it presents.
https://www.post-gazette.com/news/nation/2020/05/09/Gov-Andrew-Cuomo-criticized-over-New-York-s-nursing-home-death-toll/stories/202005090057
Work through it.
What the hell does that mean? Just vague, hand-waving nonsense.
Why didn’t she offer to take her mother into her own home? How could a nurse have failed to know that conditions in the nursing homes were conducive to community spread? If Elaine Mazzotta’s own home wasn’t an option, where was the mother supposed to have gone, if not to the nursing home?
Here is some politician criticizing Cuomo’s comment that now is not the time to put your elderly parents in a nursing home.
I don’t see what’s “insensitive” about it. Self-evident might be closer to mark. What is more insensitive, suggesting that now is the wrong time to put your parents in a nursing home–or actually putting them in one? Just blatant nonsense masquerading as moral commentary.
So why didn’t you? If the “we” includes legislators, why aren’t the legislators blaming themselves rather than blaming the governor?
How would knowing that there was a problem have helped? What is it that McCaughey thinks should have been done? Who, after all, could have been in the dark that there was a problem at nursing homes? “You need to know where it is.” Oh, please–come on. This is such cheap grandstanding devoid of substance. The insinuation seems to be that if only Cuomo had released some magic bullet of information, a solution would have materialized. Fine. What solution?
SMH. Suppose you’d done all the testing in the world. If the nursing homes lacked the logistical capacity to isolate sick patients, what good would testing have done? Why would you need to test patients who’d been admitted to the hospital for COVID-like symptoms, and then discharged fairly early? (That, after all, is what the governor’s order was about.) A prudent person would just assume that such patients had COVID whether they’ve been tested or not. The issue here was not epistemic, but practical. Even if you knew of a certainty that a patient was positive, it would make no difference to what you did if you lacked the means to handle it. And they did lack the means. If they had had the means, they’d just have treated “COVID positive” as the default assumption for every hospital-discharged resident, and acted accordingly.
The order merely required that nursing homes take back patients who lived there. If the nursing homes think that was “almost impossible,” what do they have to say for the situation of the patients? The nursing homes were the ones turning these COVID positive patients away from what was those patients’ homes. Were the homes offering the patients an alternative place to stay? No. How easy is it to be discharged from a hospital for COVID, still have COVID, find someone to transport you to the place you call home (a difficult enough feat on its own), and then be turned away from the only home you have? Where exactly do you go at that point? If Cuomo’s comment is insensitive, how do we describe this? I’d call it fucking surreal. So what did these nursing home owners think that elderly residents were going to do? Camp out in the woods? With COVID? In late March?
Notice: no attempt to ask whether the order brought about its intended aim in the hospitals. Suppose it did. Doesn’t that change the equation? It certainly makes grandstanding about the “nursing home massacre” a lot harder to do.
As for the better solution, was it in fact available–at the fine-grained, granular, dotted i’s and crossed t’s level? What was the actual answer to Tuchman’s question? People forget that the sheer fact that a facility exists doesn’t imply that it’s administratively available to take patients of a given kind. There are dozens of logistical issues there, and failure is possible at any point. What are the facts? Journalists have just kind of given up on them. But then, so have their readers.
Lo and behold:
Correct. It is a red herring, just for that reason. If anything, the blame should devolve on the federal government. Or maybe it’s not a matter of blame. The point is, we don’t know half of what we’d need to know to judge the matter.
Once you read maybe 20 of these articles, you realize that they all follow the same stupid formula: cut and paste a few well-accredited cliches that sound ominous and seem to point a finger of blame at someone, but fail to explain what actually happened. Then repeat over and over.
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Well, if you listen to the folks at Fox News, Cuomo, Murphy, etc. purposely sent patients, who previously lived in nursing homes and were subsequently hospitalized for and designated as having recovered from COVID-19, back into the nursing homes from which they came. The Fox Folks claim that this was some diabolical plot to kill off the elderly population and/or to inflate the death tallies in NY and NJ, since many of those who were designated as “recovered” were still capable of infecting others. But yes, aside from the Fox Folks, there are legitimate questions about the wisdom of the policy of sending these patients back to the nursing homes—though it is not at all clear that the infection rate within nursing homes was strictly a result of this policy. Indeed, it is entirely possible that the spike in nursing homes was as much the result of nursing home residents coming into contact with asymptomatic infected staff (https://abcnews.go.com/Health/wireStory/ap-count-4300-virus-patients-ny-nursing-homes-70825470).
The initial policy was adopted because the hospitals in NY were being overrun and taxed to a catastrophic degree, and when the USS Comfort arrived, and the Javits Convention Center (along with four other centers in the outer boroughs) were set up, they were opened to take in patients who were NOT sick from Coronavirus; they were to be places where folks facing traumatic medical problems unrelated to the virus could be cared for under “virus-free” conditions. The private and public hospital network were to shoulder the burden of the growing population of sick and dying patients from the virus, while these other places (the Comfort, Javits, etc.) would provide medical care for those not infected with the virus, but in need of urgent medical care (so-called “elective” surgeries were all postponed, but, obviously, there are many other medical problems that people face, for which they require treatment, in medical facilities that are not death traps for those with underlying pre-existing conditions).
Though the official reversal came at the beginning of May, the policy actually started to change at the beginning of April. See https://www.defense.gov/Explore/News/Article/Article/2140535/comfort-javits-center-open-care-to-covid-19-patients/. It was at that time that the Comfort and the Javits Center were finally opened up to care for the overflow of COVID-19 patients.
But, yes, the damage was done. And I suspect that’s what Cuomo’s mea culpa is about. He’s certainly not in agreement with the Fox Folks that his policy was designed to kill people; but it was a policy that was shaped by the exponential growths in hospitalizations and intubations that were happening in late March and early April, until the state hit a plateau of 800-1000 deaths per day. Once it became clear that the healthcare network, as taxed as it was, would not collapse, and that these other facilities could take in COVID-19 patients, the practice of sending recovering nursing home patients back into nursing homes started to change. And extra precautions were put into place at the beginning of May, as Michael indicates above.
Clearly, mistakes have been made at every level of government; but it’s a huge leap to characterize something that was a tragic mistake to viewing it as a criminal act. I live in NY; I’ve lost neighbors, a cousin, friends, and even cherished local proprietors, to this horrific disease. There’s a lot of blame to go around; those most at fault, however, were the folks who denied that there was even a virus at work, that the whole thing was a hoax, and that one could just wash it away with a little detergent or by mainlining bleach.
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Sorry for the delay in approving your comment–didn’t see it until now.
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Yeah, exactly right. I agree with everything you say, except that I don’t see the basis for a mea culpa by Cuomo in any of it. Circumstances were one way in March, changed in April, then changed again in May. The policy changed along with the circumstances. Cuomo and Murphy did nothing blameworthy there, so the mea culpa is inappropriate. Not only is it inappropriate, but I find it somewhat cynical and offensive. It throws Murphy under the bus, and it confuses the issues that affected both New York and New Jersey. It seems like a case of Cuomo’s choosing the line of least resistance, even at a cost to himself.
Once you add this part in (the part after the dash), the mea culpa becomes even less justifiable:
I think it’s more than “entirely possible”; it’s highly likely. Some of my students work in nursing homes, and their descriptions of their working life make clear that resident-staff interactions very likely explain a significant amount of infection.
The larger point is, if the patients weren’t going to be sent back to the nursing homes, it wasn’t initially clear where they were going to be sent. But they had to be sent somewhere; that issue couldn’t be left unaddressed. And the most obvious location, given the haggling over the Comfort and the Javits Center, was: back to their point of origin, the nursing homes that were their primary residences.
What I find particularly upsetting in all this is the issue that is being lost between the cracks: the nursing homes’ lack of preparedness. Similarly upsetting is the complete insensitivity about where these discharged patients were going to go. People treat that issue as though it was somehow secondary, as though the only issue was that x people died in nursing homes. Would it have been better if discharged COVID patients died on the street or in homeless shelters?
That said, I don’t have much sympathy for the highly punitive approach taken by the AGs in both New York and New Jersey, which is to treat the nursing home operators as criminals. The relevant underlying point is that there was a systemic failure here, less so a failure of demonic nursing home operators. Nursing home operators were not used to thinking or acting in terms appropriate to a pandemic. They weren’t used to thinking in terms of public health at all. They were focused on the bottom line. If people don’t see the mismatch here between institutionally-based profit-maximization and long-term collective well-being, I don’t know what will convince them.
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Hi Irfan,
I’ve just skimmed the comments here (and read your original post), but I’m glad you wrote them. When I first heard about the Cuomo thing, the first thing I thought was: “why did he do that?” I didn’t take seriously the idea that he was trying to kill people. I just figured he was overworked or whatever.
This discussion has helped me figure things out a lot more. That said, I see two possible reasons explaining why a mea culpa may still be appropriate. (1) Chris Sciabarra writes, “Once it became clear that the healthcare network, as taxed as it was, would not collapse, and that these other facilities could take in COVID-19 patients, the practice of sending recovering nursing home patients back into nursing homes started to change.” But what if that’s not true? What if it took, say, three days for them to change policy? I’m just speculating here, but that may be blameworthy. (2) It could be simply that it’s good to have a policy whereby public officials take the blame for a bad outcome even if its happening was out of their hands. This would be a political version of moral luck. The person who luckily avoids a crisis but who still acted foolishly isn’t sanctioned as much as the person who acted smartly but who still ended up exacerbating a crisis.
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I still don’t see why a mea culpa is (given the facts) actually appropriate, but more to the point, even if it was, I’m looking for a specification of the blameworthy act for which the mea culpa is a mea culpa, and still don’t see what it would be.
A couple of points on (1): First, and most obviously, if Chris’s account of the facts is correct (as I think it is), there’s nothing blameworthy in what Cuomo actually did, as opposed to what he did ex hypothesi. If you’re asking “What if it took him three days to figure out whether the healthcare network would not collapse?” that by itself wouldn’t indicate blameworthiness; we’d need an argument for why three days was too long to take to ask and answer that question. But if you’re baking blameworthiness into the act of taking three days, then you’re asking a complex question that presupposes blameworthiness in the act of asking the question. Your question is like asking, “Isn’t it blameworthy that Cuomo culpably took three days to ask and answer the question?” But my question all along has been: what is that Cuomo and/or Murphy actually did that was blameworthy?
On (2), since I don’t accept moral luck (in any version), I don’t agree. But that aside, I still don’t understand why anyone thinks that Cuomo or Murphy acted foolishly in the first place. I actually think the criticisms I’ve seen of them so far are foolish.
So far, I haven’t encountered a critic who’s been able to answer the following very basic question: Suppose Smith is a resident of Nursing Home X. He develops acute symptoms and is taken to the hospital. He’s stabilized and discharged from the hospital. The hospital assumes, reasonably enough, that Smith is to be transported back to Nursing Home X (Nursing Home X is, after all, literally Smith’s home). The hospital arranges for transportation back to Nursing Home X. On arrival, Nursing Home X determines that Smith is COVID positive and declines him re-admission. Cuomo’s and Murphy’s directive prohibit this; they require X to re-admit. Why is that wrong? If it is wrong, what is supposed to happen instead? X declines re-admission. Now what?
In having a conversation today with someone who has decades of experience in the field, I realized that the preceding paragraph only gets at half of the problem involved. The other half is this: Suppose that Smith is not discharged, but that he is taking up space in the hospital desperately needed by an acutely ill COVID patient. Now multiply Smith x-fold, remembering that Smith is a non-acute COVID patient. The higher x is, the greater the likelihood that non-acute patients are taking up resources needed for acute patients. The yet higher x goes, the greater the likelihood that those patients will start lining up in the hallways and the parking lot. But you can’t treat acute patients that way. Now what?
I don’t think Cuomo and Murphy’s critics have really grasped the rationale for their policy, or grasped the significance of the facts underlying it. They seem to have assumed that the policy lacks a rationale, then fixated on the fact that lots of elderly patients died in nursing homes. But there is a lot more to the issue than that–more to it even than my comments so far have indicated. That said, I’m just curious for now to see what these critics have to say in support of their criticisms. So far, my verdict is: nothing plausible.
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Honestly, Irfan, I was not trying to bait you into a long discussion! And I don’t have much of a dog in this fight, I had simply formed a tentative opinion on the matter. I still have the same opinion: ordering nursing homes to accept still-contagious recovering patients back probably caused significantly more death in the nursing homes and probably caused more death overall than would have been caused by keeping them in the hospitals (or pressing for and finding alternative arrangements). However, you make some good points that I had not considered (or at least not fully considered) so my confidence in this belief is less than it was — maybe down to .6 or so. Not-insignificant probability that the decision was not an error at all (if the patients were kept in the hospitals, maybe many more would have died in overloaded hospitals and maybe most of the deaths in the nursing homes would have happened anyway). People want to boil things down to a simple story and a simply morality play.
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Sorry, didn’t mean to come across that way; any irritation I may have expressed wasn’t aimed at you, specifically. The question I’m focused on is the all-in justification for the Murphy-Cuomo decision to demand that nursing homes take back (re-admit) their own residents after discharge from hospitals. I have yet to encounter an objection that makes any sense, at least to me. There is a separate question about the justification for demanding that nursing homes admit hospital-discharged patients who hadn’t previously been admitted to a given nursing home, but even the rationale for that decision is not obviously unreasonable. The more I look into it, the more senseless the entire public discourse on this topic strikes me, whether left, right, or center. It’s now in danger of being taken hostage altogether by demagogues and ideologues.
It’s bad enough when people wait for the dust to clear, then second-guess decision-makers by identifying optimal courses of action that were available but not taken during a crisis. The evaded question there is whether the urgency of the crisis allowed for that kind of calm deliberation over options and information. It’s much worse when, even with the benefit of hindsight, they can neither explain the sub-optimal nature of the decision taken, nor identify a better decision to have taken on the basis of any information that has since emerged.
Since COVID-19 affects the elderly more severely than it affects other demographic groups (and the elderly generally have worse prognoses from medical events than other groups), it strikes me as trivial to note that there was more COVID-related mortality in nursing homes than elsewhere. There was bound to be more COVID-related mortality wherever there were elderly people, and especially where elderly people were clustered. There’s no way to eliminate mortality-among-the-elderly without just deleting the elderly altogether, and no way to eliminate mortality-among-the-elderly-where-there-is-clustering without deleting the fact that the elderly need care, and where there is care, there is clustering. If (per impossibile), the same elderly had been sent to private homes, or had convalesced in hospitals, you’d have gotten high mortality of the elderly in private homes, and high mortality of the elderly in hospitals. None of these facts by themselves license clear inferences about blame or legal liability.
Some of the same people unimpressed by COVID’s severity will say, “Well, only the elderly were affected, and they were on their way out anyway.” Then they’ll turn around and say, “My God, those governors failed to protect the elderly, the most vulnerable population of all!” Each individual claim is preposterous enough, but their combination really takes the cake. That hasn’t stopped people from combining them.
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