Trump's New Nursing-Home Tests Fuel 'Herd Immunity' Debate

By Jeff Overley
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Law360 (August 31, 2020, 11:30 PM EDT) -- President Donald Trump on Monday said he's surging resources into coronavirus testing at nursing homes, a move that followed reporting of the White House exploring a risky strategy to let the pathogen spread widely while shielding vulnerable individuals.

At a White House news conference, Trump observed in prepared remarks that new COVID-19 cases have steadily dropped during the past month and that rapid, portable tests are becoming more widely available.

"Many will be deployed to nursing homes," the president said of rapid tests. "We're focusing very strongly on nursing homes, assisted living facilities and other locations that serve high-risk populations."

That comment seemingly referred to recent moves by administration officials to expand testing in nursing homes. It also came on the heels of a Washington Post report Monday that said a new White House adviser — Dr. Scott Atlas, who is a radiologist and Hoover Institution senior fellow — has been urging Trump to pursue "herd immunity" by allowing the novel coronavirus to spread among the general population but also trying to shield vulnerable populations.

Most of the 183,000 Americans who've died of COVID-19 were seniors, and the Trump administration in recent weeks has repeatedly touted plans to ship point-of-care tests to the vast majority of U.S. nursing homes by the end of September. In addition, the U.S. Department of Health and Human Services last week issued an interim final rule that requires long-term care facilities to test residents and staff for COVID-19.

Christy Tosh Crider, founder of the Baker Donelson Bearman Caldwell & Berkowitz PC team representing long-term care facilities, told Law360 on Monday that "we would have a shot at protecting our nursing home residents" from a major new wave of community infections if tests with instant results were ubiquitous, affordable, plentiful and accurate.

"But we have no shot without that, and that tool is not yet available, Crider said. "I suspect that the promises of point-of-care tests ... were in anticipation of the 'herd immunity' concept."

Trump on Monday didn't address herd immunity, which occurs when so many members of a community are immune to a virus — typically through vaccination — that it can't spread effectively. Estimates of the percentage of Americans who must be infected to achieve herd immunity have usually hovered around 70%, but some experts say the level could be much lower.

More than 6 million U.S. cases of COVID-19 have been confirmed, with the country adding an average of roughly 40,000 cases per day. Public health officials say the total number of infections is likely many times higher, and that confirmed cases in dense urban areas, such as New York City, may be particularly understated. It's also possible, but unproven, that earlier infections from other coronaviruses that cause the common cold are lending some level of immunity.

Officials at the White House and HHS didn't respond to requests for comment Monday on whether the administration is trying to safeguard seniors in order to minimize the danger of pursuing herd immunity not through vaccination but rather a conscious decision to let the virus spread.

Many high-profile observers have come out against the concept — deployed most prominently, but with little success, in Sweden — of encouraging the coronavirus' spread among the general public.

"It would be unwise to abandon efforts to limit COVID spread wherever possible," Scott Gottlieb, commissioner of the U.S. Food and Drug Administration earlier in the Trump administration, wrote Sunday in the Wall Street Journal.

The debate over herd immunity is happening as students return to schools in many states, raising fears of new outbreaks that have already emerged on some college campuses. Trump has adamantly supported in-person classes and long pressed for normal business activity to resume. He has also occasionally advised Americans to practice social distancing and wear masks, while nonetheless holding crowded campaign events that disregarded those safety measures.

On another testing front, the Centers for Disease Control and Prevention recently weakened its COVID-19 testing recommendations to say that Americans without COVID-19 symptoms "do not need a test" and that Americans who've been in close contact with an infected person "do not necessarily need a test."

While the CDC's move could improve turnaround times for testing, critics charge that it will result in a grossly inaccurate understanding of the pandemic's severity and cause asymptomatic individuals to spread the virus more widely. The latter would be a desirable outcome for proponents of seeking herd immunity without waiting for a vaccine; those proponents cite the economic and psychological costs of limiting business and leisure activities.

But Tom Frieden, CDC director during the Obama administration, noted Monday on Twitter that Sweden's controversial decision to reject severe limits on business and social activity resulted in deaths that dramatically exceeded those of neighboring countries and ultimately failed to avert major economic damage.

"The only alternative to controlling the virus is more deaths and more economic devastation," Frieden wrote.

--Editing by Michael Watanabe.

For a reprint of this article, please contact reprints@law360.com.

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