3 Key Developments As US Coronavirus Deaths Near 200,000

By Kevin Stawicki
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Law360 (September 21, 2020, 9:05 PM EDT) -- The Centers for Disease Control and Prevention withdrew guidance on COVID-19 spread, the Trump administration's blueprint for distributing the coronavirus vaccine faced swift criticism, and litigation related to the pandemic continued to mount just as the number of confirmed U.S. virus-linked deaths neared 200,000. Here are three key developments to know.

CDC Withdraws Guidance On Virus' Spread, Changes Tune On Testing

The CDC on Monday backtracked on an update it announced Friday that the virus mainly spreads through the air, saying the agency needs more time to figure out the guidance.

"A draft version of proposed changes to these recommendations was posted in error to the agency's official website. CDC is currently updating its recommendations regarding airborne transmission of SARS-CoV-2," the agency wrote on its website. "Once this process has been completed, the update language will be posted."

Monday's change is the agency's latest unusual development regarding COVID-19 guidance. On Friday, the CDC strengthened its coronavirus testing recommendations, saying that Americans without COVID-19 symptoms and those who have been in contact with an infected person should get tested. Friday's update was a reversal from the agency's earlier recommendations that asymptomatic individuals "do not need a test" and that Americans who've been in close contact with an infected person "do not necessarily need a test."

"Due to the significance of asymptomatic and pre-symptomatic transmission, this guidance further reinforces the need to test asymptomatic persons, including close contacts of a person with documented SARS-CoV-2 infection," the agency posted as clarification on its website on Friday.

Rep. James E. Clyburn, D-S.C., chairman of the Select Subcommittee on the Coronavirus Crisis, said in a statement on Saturday that he was pleased the CDC responded to his request to change the testing recommendation guidance.

"While this reversal is a positive step, I remain deeply troubled by reports that Trump Administration officials are interfering with CDC's public health guidelines and suppressing its scientific reports in an effort to downplay the coronavirus crisis," Clyburn said of the initial update.

Over the past few months, widespread claims have circulated that the Trump administration is politicizing CDC virus reports and guidance. The administration faced a wave of heightened scrutiny two weeks ago over whether it exercised undue influence on the pandemic response when audio recordings of Trump's interviews with journalist Bob Woodward from March were released. "I wanted to always play it down. I still like playing it down," he said at the beginning of the pandemic.

Last week, House Democrats announced they were opening an investigation into whether Trump's political appointees at the U.S. Department of Health and Human Services interfered with CDC reports. Top political appointees and career officials from HHS and the CDC are expected to sit for interviews with the committee starting Tuesday through the rest of the week.

The lawmakers want to interview former HHS senior adviser Paul Alexander, who left the agency last week, and HHS Assistant Secretary for Public Affairs Michael Caputo, who took a leave of absence from the agency last week. Both are facing criticism over their alleged interference with CDC virus reports. The committee also wants to hear from five CDC officials, including the agency's Principal Deputy Director Anne Schuchat.

Questions about political interference at the CDC have also seeped into other agencies as the number of deaths nears 200,000.

Clyburn and other members of the select subcommittee have been churning out reports and letters accusing the White House of trying to water down the rhetoric related to the virus and maintaining "secret coronavirus reports." The subcommittee has demanded that the Coronavirus Task Force turn over reports about tracking the spread of the virus to determine if it weakened its recommendations as the number of infections grew.

Vaccine Rollout Plan Met With Skepticism

The Department of Health and Human Services' strategy to distribute COVID-19 vaccines through public-private partnerships involving health systems, tribal leaders and organizations serving minority groups was met with criticism late last week.

"I'd like to see more about it because we have had an experience of what [Trump administration officials] say and what they do might be different things," Speaker Nancy Pelosi said during a press conference on Friday.

While there's general agreement about first responders and seniors getting the vaccine first, Pelosi said she's concerned about whether the administration will be transparent about all aspects of the distribution process.

"How are those decisions made? Hopefully not the way the president has made decisions about giving [personal protective equipment] to states by just doing it in a manner [that is] not scientific," she said. "That means it doesn't just go to red states or rich people."

According to the three-phase plan, jurisdictions must ensure vaccination locations are accessible to all populations, expand the availability of doses and focus on equitable distribution through surpluses of doses with the intent to increase them in low coverage areas. The government's approach to determining critical populations, expanding provider recruitment and determining the capacity of vaccine administration was also laid out.

"It's a great plan. It's a plan like no other, and we can start doing it, I believe, the day that we come up with the vaccine," President Donald Trump said during a press conference on Wednesday.

Trump's virus adviser Scott Atlas said prioritized groups will have received or be able to obtain the vaccine by January.

"That kind of prioritization, which is the general prioritization done for all vaccines that are developed, particularly in a pandemic setting, goes to the high-risk people, the people with other underlying conditions, as well as first responders and people working directly in health care," Atlas said Wednesday. Trump added Friday that there will be enough vaccines for every American by April.

House Democrats also spent the last week stressing the need for oversight of the administration's multibillion-dollar vaccine campaign Operation Warp Speed, which maintains that it's on track to deliver over 300 million doses of an effective vaccine by January. On Sept. 15, the House Select Subcommittee on the Coronavirus Crisis asked HHS Secretary Alex Azar and Defense Secretary Mark Esper to provide information about the program to the Government Accountability Office.

"It's really important for us to have confidence in the vaccine," Pelosi said Friday. "Unless there is confidence that the vaccine has gone through clinical trials and is approved by an independent scientific committee, there will be doubts."

Virus Fines & Litigation

After months of guidance about complying with federal guidelines about workplace safety but little action in terms of enforcement, the Occupational Safety and Health Administration, which investigates workplace safety complaints, recently fined two meatpacking giants for failing to protect workers from coronavirus-related risks.

The agency slapped Smithfield Packaged Meats Corp. with a $13,494 fine on Sept. 10 for subjecting workers in its Sioux Falls, South Dakota, facility to a hazardous work environment. The agency also hit JBS Foods Inc. with a $15,615 fine on Sept. 11 for failing to protect workers at a Greeley, Colorado, plant from virus exposure. Some observers have said the fines are far too low to deter other companies from protecting their workers.

As for litigation, a Chicago nurse cleared a hurdle in one of the first coronavirus-related lawsuits in the country. On Sept. 14, Lauri Mazurkiewicz was given the green light by an Illinois state judge to proceed in her suit against Northwestern Memorial Hospital alleging it fired her for warning about the adequacy of the masks the university hospital was pushing on its staff.

There has also been a large uptick in insurance litigation cases in the first half of the year due in part to businesses seeking coverage for losses they have suffered amid the pandemic, according to a new report released last week by Lex Machina.

And late last week, a slew of COVID-19-related cases were lodged in federal courts across the country, including a derivative suit alleging biotechnology company Vaxart misled investors about government funding for a COVID-19 vaccine.

Other cases were lodged over the Coronavirus Aid, Relief, and Economic Security Act last week as well. The U.S. Department of Housing and Urban Development was sued Wednesday by a group of property managers and landlords over the CARES Act suspension on evictions established at the start of the pandemic. In a suit removed to Ohio federal court on Friday, a group of Ohio nursing homes accused their former operator of refusing to transfer nearly $1.2 million in CARES Act funds administered to the homes through Medicare, which they say are urgently needed for staffing, testing and other measures to fight COVID-19.

Also on Friday, the nephew of a man who died from COVID-19 at a New Jersey nursing home dropped his proposed class action alleging it failed to protect residents from contracting the virus.

US COVID-19 Deaths Almost Reach 200,000

The number of Americans who have died from COVID-19 reached 199,817 late Monday, according to Johns Hopkins University, while the next-closest countries were Brazil with 136,895 deaths and India with 87,882 deaths. There have been nearly 1 million coronavirus-related deaths worldwide. Over 6.8 million Americans have tested positive for the virus as of late Monday, with over 30 million global cases.

"We're rounding the turn, we're rounding the curve on the pandemic," Trump said during a campaign rally in North Carolina on Sunday.

Democratic presidential nominee Joe Biden also addressed the death count Sunday during a speech in Philadelphia, grossly over-exaggerating the number of deaths by mistake.

"It's estimated that 200 million people will die, probably by the time I finish this talk," he said.

--Additional reporting by Vin Gurrieri and Jeff Sistrunk. Editing by Steven Edelstone.

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