In a much-read and much-discussed interview in The Atlantic, the economist Tyler Cowen argues that the COVID-19 crisis proves that “the regulatory state is failing us.” Here is his Exhibit A for that claim:
Friedersdorf: What are the most significant failures of America’s regulatory state as it relates to the pandemic?
Cowen: Let me give you a few examples:
New York state regulations, until very recently, forced nursing homes to accept COVID-19-positive patients being discharged from hospitals. Nursing homes, especially in the northeast, have been an epicenter for COVID-19 casualties. By law, they were forced to accept more than 4,500 COVID-19-positive patients, often without proper PPE for their staff.
I don’t find this convincing. Why, exactly, does this very partial description of the issue prove that government failed? And why does Cowen regard the matter as so obvious that a summary this brief should suffice to make the case?
Yes, both New York and New Jersey regulations until recently forced nursing homes to accept COVID-19-positive patients upon discharge from hospitals. Yes, nursing homes have been an epicenter for COVID-19 casualties. Yes, these nursing homes often lacked proper PPE for staff, as well as testing, isolation, and so on. But how does this add up to a regulatory failure on the part of the relevant state governments? What exactly was the failure? And why was it a failure?
Like so many people repeating this charge, Cowen omits most of the crucial intermediate steps required to get him from the facts he cites to the judgment he makes. I’ve gone back and read as many of the posts on nursing homes on Marginal Revolution as I could in an hour or so, and basically came up with nothing more than a series of promissory notes gesturing at an argument-not-yet-made, along with promises to “hammer away” at the polemical point involved. Maybe I missed something, but I didn’t see an actual argument for any relevant conclusion. And maybe it’d be wise to come up with an argument before hammering away at a conclusion.
In particular, like so many of the people wielding the “nursing home failure” bludgeon, Cowen conspicuously fails to deal with any of the following issues:
(1) Rationale for the order. What was the rationale for the order forcing nursing homes to accept COVID-positive patients? Was it a good rationale at the time it was passed, or not? Cowen writes as though the rationale for the adoption of the order could simply be ignored (along with the text of the order itself, the explanation given in the original text, and so on). The preferred strategy, it seems, is to condemn the order without asking why or under what circumstances it was adopted. This seems like a good way to produce a libertarian talking point, but a bad way of tracking the truth.
(2) The need for expedited discharge from hospitals. The order was issued because hospitals expecting a wave of acute COVID patients wanted to discharge non-acute COVID patients as soon as they were stable, many of them elderly COVID positive patients requiring intensive follow-up care (despite being stable). Question for Cowen: were the hospitals (of New York and New Jersey) wrong to discharge the patients in question when they did (meaning, elderly non-acute COVID-positive patients needing intensive follow-up care)? How so? To say this is to say that their fears of an imminent incoming wave of COVID patients were all nonsense, hype, exaggeration, or miscalculation. True? Wouldn’t an argument to that conclusion require quite a lot of data arranged in very precise ways? If so, can Cowen cite a source?
(a) Expedited discharge option. Suppose that the hospitals were right to expect that an incoming wave was en route. Assume accordingly that non-acute patients had to be moved somehow, somewhere to make room for the expected incoming wave of patients. If so, either the non-acute patients had to be discharged on an expedited basis or not. Suppose that they were to be discharged on an expedited basis. If so, where besides nursing homes were they supposed to go? A decision to discharge a patient requires a plan for discharge, including transportation to some appropriate destination, the permission of the destination itself, and an arrangement at the receiving end to receive the patient and care for him or her. What does Cowen have in mind here? Where was all of that available except at nursing homes?
One possibility would have been to discharge patients to private homes. But this was easier said than done. Obviously, for the resident herself, the nursing home was the functional equivalent of a private home. In the case of relatives, working families might in theory take their relatives in, but had to make arrangements for the care of an elderly post-COVID patient. Some families were unable to do this (whether financially or logistically or both), and others were unwilling to do so (partly out of fear of infection, partly out of a refusal to do the job that the nursing home was being paid to do). Recall that working families had earlier demanded that schools stay open to care for young children. In the relevant respects, the convalescent elderly are just as helpless as very young children. So it’s not clear that discharge to private homes was a useful or widely available option.
Another option was to send the elderly to intermediate quarantine facilities specifically set up to house non-acute patients (including nursing homes specially designated as capable of handling COVID-positive patients). But arguably, the creation/organization etc. of such facilities was a later development in places like New York and New Jersey, and not something that could be relied on with certainty at the outset, i.e., at the time that the order was issued (March 31 in the case of New Jersey). What was to be done in the window of time before the intermediate quarantine facilities had been set up, and before anyone could be certain they would be? Where, in short, does Cowen think elderly, hospital-discharged COVID-positive patients needing intensive follow-up care were supposed to go if not nursing homes? His accusation only has merit if we treat this window of time–between the governors’ issuing of the order and the state’s ensuring that the quarantine facilities were ready to admit patients–as non-existent or unimportant, and as though it was clear that intermediate quarantine facilities were ready to accept patients immediately upon discharge from the hospitals throughout March and April. True?*
(b) Rejection of expedited-discharge option. Now suppose that hospitals had not discharged the patients in question, but had permitted (or forced or pressured) them to remain within the hospitals themselves.** Is Cowen certain that the mortality and morbidity outcomes would have been improved on this scenario in New York and New Jersey? If so, I’d be curious to know how he knows that. But if he doesn’t know, what is his complaint about what actually happened?
Again, suppose that the relevant patients had not been discharged from hospitals on an expedited basis. What does Cowen think about what would have happened–or what might reasonably have been expected to happen–to the throughput of the relevant hospitals, taking “throughput” to refer to the entire sequence, for cohorts of patients, from admission to discharge? In other words, is Cowen sure that hospital throughput would not have been adversely affected by a decision to keep elderly non-acute COVID-positive patients needing intensive follow-up care admitted to the hospitals? Can he exclude the nightmare scenario of incoming acute cases piling up in the Emergency Department, the halls, the lobbies, the parking lot, and/or the street, given the space being taken up by non-acute cases convalescing in the hospital out of a reluctance to send them to nursing homes?
(3) Admits vs. re-admits. Does Cowen regard his criticism as applying both to initial admits and to re-admits to nursing homes? In other words, is he saying that nursing homes ought to have been free both to reject new COVID-positive patients who had never been resident before at a given facility, and to reject COVID-positive patients who had previously been resident at a given facility? This latter claim implies that a person who was originally a resident of a given nursing home, was taken to the hospital (say) by ambulance in respiratory distress, and who was then stabilized and discharged from the hospital, ought to have been forcibly prevented from returning home because he or she had either tested positive or was merely thought to have been positive for COVID based, say, on clinical presentation.
In focusing entirely on the the force involved in the state’s adoption of its regulation, Cowen ignores the fact that the order served to prevent nursing homes from forcibly preventing the admission or re-admission of COVID positive patients. In the case of re-admits, if nursing homes had contracts to care for their own residents, the refusal to admit them was a breach of contract. In that case, the state regulation was only an act of “force” in the sense that a specific performance remedy is an act of “force.” The initiatory act of force was not the remedy offered by the state, but the breach committed by the nursing home.
But even if we set the contractual issue aside, in the case of re-admits, Cowen ignores the fact that had the state not used force, the relevant patients would have been deprived (whether forcibly or not) of the opportunity to return home, and would thereby have been rendered homeless. Whether that qualifies as “force” or not, it is surely morally relevant, and demands acknowledgement and discussion. It’s well known that as far as the rental market is concerned, evictions were put on moratorium during this time; isn’t a failure to re-admit a convalescent COVID positive patient to a nursing home a kind of eviction? And a remarkably cruel one? Would Cowen then reject the moratorium on evictions? But in that case a similar question arises: if a person can’t pay rent due to unemployment, is it fair or wise to force them out of their domicile and render them homeless in the middle of a pandemic?
(4) Inadequate PPE. Whose fault (if anyone’s) was nursing homes’ failure to have adequate PPE? Cowen writes as though the state did nothing to provide anyone with PPE. True? He doesn’t draw attention to the fact that New Jersey, at least, asked private institutions–like universities–to provide lists of PPE in their possession that could be requisitioned for emergency purposes. Is Cowen certain that these institutions were completely candid in their requisition declarations? If not, is that fact to be blamed on the state?
In the absence of detailed (“granular”) discussion of these, I see no way of understanding even the basics of the nursing home issue.*** Commentators who insist on doing so are adding little of value to public discourse, but simply helping to vilify state actors, and to indulge in problematic forms of cherry picking, hindsight bias, and motivated reasoning. The most obvious failure here is not that of state governments’ like New York or New Jersey, but of those who insist on making tendentious accusations based on insufficient evidence and argument.
I don’t doubt that there is a great deal of government failure to recount here, including regulatory failure involving nursing homes, hospitals, and other health care facilities. But one can’t credibly spin out a narrative regarding “regulatory failure” on the exiguous basis that so many libertarians have staked out. It is not credible to insist, over and over, that because the state forced nursing homes to accept COVID positive patients, and many of these patients died and infected others who died, the state (or worse, the state alone) was at fault for their deaths, or even wrong to have done what it did. There is more to the story than that, and it’s time that those who have told one part of that story ad nauseam, acknowledge that there is another part of the story to be told, one not altogether helpful to their case.
*I grant that this option was evidently available in other states, which took it, or took options like it. The question is whether it was available in New York and New Jersey. The question is: are the state governments of New York and New Jersey primarily at fault for their failure to set aside quarantine facilities for stable, elderly, COVID-positive patients requiring intensive follow up care upon expeditious discharge from hospitals? Or are some other entities primarily at fault?
**This, I take it, is what Florida did. But Florida is not New York or New Jersey. And it may be worth re-visiting the Florida case by going back and interviewing the discharge staff in Florida hospitals re what they thought about the pressure they got from the governor’s office to keep elderly patients in the hospitals against their better judgment. Were their discharge decisions voluntary under those circumstances? If force initiations are objectionable to libertarians, were those force initiations likewise objectionable?
***This very typical news item fails the test.
Thanks to Russell Browne, William Dale, Mike DeFilippo, Teresa DeFilippo, Nancy Gable, Rob Gressis, John Holt, Suleman Khawaja, William Ortiz, Robert Platt, Chris Sciabarra, and Michael Young for helpful conversation on this issue. The usual proviso applies: none of the preceding should be taken to agree with me, or to agree with one another.