Off the Kuff Rotating Header Image

August 22nd, 2021:

Weekend link dump for August 22

“I cannot emphasize enough what an emergency this is. Public servants, health care workers, ordinary citizens–the very fabric of our society and our democracy–are under attack by crazed conspiracy theorists and bad actors looking to make a buck on division and hate.”

“A few things still need to happen before [COVID] shots can be authorized for Americans younger than 12.”

“The former president only received about 19 percent of his 74 million votes from counties with shrinking populations, according to Muro and his team’s analysis. Overall, the counties where he won added 7.8 million people during the previous decade. But Biden counties nearly doubled that total, expanding by 14.9 million individuals. Blue America is driving America’s population growth.”

“[T]he Democrats are trying to accomplish something nobody has ever accomplished, let alone attempted, on the House and Senate floors: a single piece of legislation designed to overhaul the social contract on a disparate array of fronts.”

The NFL is a good example of how and why vaccine mandates work.

“We need to talk about the pediatric bed situation in the USA. Because things are going to get really bad, real fast, unless people doing things to stop it.”

“There’s a growing consensus among health experts: Covid-19 may never go away. We’ll likely always have some coronavirus out there, infecting people and, hopefully only in rare cases, getting them seriously ill. The realistic goal is to defang the virus — make it less deadly — not eliminate it entirely.”

“Modernizing the Electoral Count Act (“ECA”) is the fix most likely to stop an effort to overturn the results of a future election that can receive bipartisan support.”

Rachel Maddow >> OANN.

“The Republican-led Maricopa County Board of Supervisors filed a financial claim Wednesday seeking $2.8 million from the GOP-led Arizona State Senate for the cost of replacing elections equipment compromised during the Republicans’ sham audit.”

“The National Association of Secretaries of State approved a series of recommendations for audits aimed at combating Arizona-style, slapdash reviews of the 2020 election and future races.”

Some SFF/F book recommendations, if you need some new reading.

“If you believe the pandemic is almost over and you can ride it out, without getting vaccinated, you could not be more wrong. This virus will find you.”

“The sentencing for one of the January 6 US Capitol rioters was abruptly postponed Wednesday after new videos emerged of the man allegedly fighting with police, an unexpected twist in the case because prosecutors hadn’t previously accused him of committing violence that day.”

“Instead, on the eve of a once-in-a-generation federal investment in infrastructure, the environmental review process for big projects is totally unfit for the task at hand. Transportation is the country’s largest source of carbon emissions, but ideas that aim to reduce dependence on planes, cars, and trucks have even more trouble gaining environmental approval than highways. The result: delays and high costs that perpetuate the dominance of ice cap–melting SUVs in American transportation policy.”

Where are the anti-war voices?

Mike Richards is officially out as the new Jeopardy! host, and not a minute too soon.

RIP, Bill Freehan, 11-time All Star catcher for the Detroit Tigers.

RIP, Tom T. Hall, country singer/songwriter who wrote “Harper Valley PTA”.

The mask rebellion

Sweet, sweet music to the ears.

The local mask rebellion, coupled with the fresh threat of legal action from President Joe Biden’s administration, poses the most serious challenge yet to [Gov. Greg] Abbott’s emergency powers, which he has wielded in unprecedented ways that have drawn intense criticism both from Democrats and from some conservatives.

[…]

Many school boards and superintendents are stuck between conflicting requirements from the governor and their local health departments, while others feel that masks are essential and that they have the authority to control their own schools, regardless of the governor’s wishes.

“I don’t think the governor has an MD next to his name,” said Conrado Garcia, superintendent of West Oso Independent School District in Corpus Christi. “We’re just trying to help our kids, and maybe what’s missing is some of that kind of thinking.”

West Oso is one of 58 school districts deemed “noncompliant” with Abbott’s order by Attorney General Ken Paxton, who is publishing a list of the rogue government entities.

At last count, the list also included three charter school groups, one city and eight counties — Bexar, Cameron, Dallas, Harris, Hays, Hidalgo, Nueces and Travis — for a total of 70 entities. Paxton, who is also suing to overturn some of the local mandates, encouraged the public to notify his office of any “violator” that was not included on the list.

Garcia said he hopes Abbott will come around on the local mask mandates.

“Our intention is not to fight the governor, our intentions are that he will realize that there’s so many parents, and the list is growing of the number of school districts that are passing more and more resolutions,” Garcia said. “So I think eventually, somewhere, somehow, common sense dictates to me that if you’re hearing from that many people, I hope that he will compromise and let us continue with our work.”

The cases pose a new legal test for Abbott, whose emergency orders withstood early challenges from the right, filed by conservative groups that argued against business closures and the governor’s own mask mandate.

The Texas Supreme Court decided last year that it didn’t have standing to take up those cases, though Justice John Devine nonetheless issued an opinion in which he critiqued a portion of state law that allows the governor to suspend certain laws and rules during emergencies.

“I find it difficult to square this statute, and the orders made under it, with the Texas Constitution,” Devine wrote, noting that only the Legislature — not the judiciary or executive branches — has constitutional power to suspend laws.

In the latest mask challenges, local officials are citing the same portion of state law, but with the opposite intent: to stop Abbott from blocking local action aimed at blunting the spread of COVID. In cases involving San Antonio’s and Dallas’ mask mandates, local officials have argued that Abbott may suspend only local orders that would “in any way prevent, hinder or delay necessary action in coping with a disaster.”

Ron Beal, an attorney and former administrative law professor at Baylor University, sided with the local officials in an amicus brief submitted to the state Supreme Court on Monday.

“It is wholly inconsistent with the legislative intent for the governor to consciously and knowingly not meet or prevent the dangers, but to enhance them,” Beal said. “There is simply no language in the statute that empowers the governor to give citizens permission to prolong the disaster. It is thereby void.”

[Dale Carpenter, a constitutional law professor at Southern Methodist University], said the case raises difficult constitutional questions for the conservative jurists on the court.

“That cuts a number of ways in this case, both for and against the governor, because he’s acting in a way that many conservatives believe is reinforcing individual rights to choice, choice about wearing masks specifically,” Carpenter said. “But I think the court certainly doesn’t want to issue an opinion that says the governor’s the commander-in-chief and he can do what he wants, and not qualify that opinion a lot.”

[…]

Paris ISD, in Northeast Texas, has taken a novel approach to its own mask mandate. While other districts have argued that health data or conflicting local requirements required them to ignore Abbott’s order, Paris ISD’s board simply amended its dress code to include a mask.

The lawyer for the district, Dennis Eichelbaum, argues that so long as the state’s education law remains in place, school districts have the exclusive right to govern themselves. Unless Abbott decides to use his emergency powers to suspend that law, Eichelbaum argues, school districts can institute mask mandates.

“We’ve always had dress codes. It’s very common in Texas. And this is no different, really, than saying we’re requiring our students to wear shoes,” he said. “I can’t explain why other law firms weren’t as creative, but it seems pretty simple to me.”

Eichelbaum argued that Abbott’s executive order is vague and inconsistently enforced, pointing to requirements that students wear face masks during welding class or that baseball catchers and football players wear face protection. Amending a dress code to include masks to protect against COVID is no different, Eichelbaum said.

Obviously, I am delighted by the resistance to Abbott’s shameful demagoguery on this issue. Abbott, who has made a career out of defying federal laws and directives he doesn’t like, deserves no sympathy for any of this. I don’t know what the Supreme Court will do, though their refusal to just call an end to all the litigation is moderately heartening, and I appreciate the legal analysis in this story. There’s at least a chance that common sense can prevail, and that’s more than we’ve had around here in awhile.

I will say, it’s been this kind of resistance to Abbott’s anti-mask mandate, which as noted has come from some red areas as well as the cities, that makes me give some credence to that Spectrum/Ipsos poll. Abbott may only care about the most fervid of Republican primary voters, but mayors and school boards have to answer to a broader electorate, and some of them will be facing that music this year. Maybe one of the HISD Trustee candidates, especially one in a district formerly held by a Republican, will base their campaign on an anti-mask platform, but if so I haven’t seen any evidence of it yet. If nothing else, this is a big campaign issue for next year, when we finally get a candidate for Governor out there.

Back to college, COVID-style

Not the return anyone was hoping for.

Texas A&M University’s new president M. Katherine Banks said this spring that she anticipated a “fall [semester] of joy” when the university reopens after 15 months of lockdowns and remote learning.

She wasn’t alone. As coronavirus case numbers dropped throughout the spring, higher education leaders across the state excitedly announced the return of in-person classes, 100% capacity at football games and an end to social distancing requirements for the fall.

But just a few weeks before students are expected to return to campus, university leaders are faced once again with uncertainty as the highly contagious delta variant of the coronavirus spreads throughout the state and country. This time, public university administrators are tasked with trying to mitigate the virus on campus without the ability to reinstitute mask mandates or require vaccines due to Gov. Greg Abbott’s executive order banning such directives. They’ll be limited in how they can respond even as the Centers for Disease Control has advised fully vaccinated people to wear masks indoors to prevent the spread of the virus and some students and faculty have expressed worry about how safe their return to campus will be.

“As the fall semester approaches, I have a feeling of déjà vu, albeit an unwelcome one,” wrote University of Texas at Austin President Jay Hartzell in a letter to the university community on July 30. “I recall last summer and winter, as we prepared to start semesters in the face of a COVID-19 virus that has an uncanny ability to time increasing threats to coincide with the academic calendar.”

While universities say they are monitoring the delta variant and whether they’ll need to pivot, many are moving ahead with previously decided reopening plans, including full football stadiums and in-person classes, while encouraging everyone to wear a mask and get vaccinated. Yet faculty and some students say they are increasingly worried about how they can effectively protect themselves and others on campuses where leaders can’t prevent unmasked or unvaccinated students and employees from entering and unknowingly spreading the virus.

[…]

Much of the frustration among faculty, staff and students is due to Abbott’s executive orders limiting masks and vaccine mandates. The faculty senate at A&M is scheduled to vote next week on a resolution calling on the state to allow universities to make their own decisions and “follow the science in their efforts to combat COVID-19.”

“There are heavy concerns when you think about the fact that institutions like A&M, the University of Texas … have a rich history based on the study of scientific principles,” said Dale Rice, speaker of the Texas A&M Faculty Senate. “And now they’re being constrained from following the science.”

Last week, a group of student leaders at UT-Austin slammed the governor for not allowing universities to make decisions on their own campuses, but also urged UT-Austin to do more.

“[I]t is also irresponsible for the University of Texas to plan for a full re-opening with little to no virtual classes available,” the letter from student leaders across various colleges read. “We have been made witness to the vast benefits of virtual learning for students, faculty, and staff who are disabled, have to work 2-3 jobs to keep up with the rising living costs in Austin, or have adapted to working or learning from home.”

For sure, the vast majority of people would prefer to be back on campus if that can be done safely, but as long as it cannot then remote learning for those who want or need it must be provided as well. Really, though, this is about vaccines and mandates. All of these campuses would be vastly safer if the overwhelming majority of people on them were vaccinated, and the only way to get there is to mandate it. You know, as they have done for decades for things like measles and whooping cough and meningitis. Legally speaking, there’s nothing to stop any campus from such a requirement, as past precedent and current judicial rulings demonstrate. The barrier is the threat that Abbott and the Republicans in the Legislature would zero out their funding.

(Note that I drafted this two weeks ago – there’s been too much damn news, y’all – and since then Rice University has announced that it will begin with virtual learning, though students are on campus.)

I can’t and don’t speak for any of these institutions. Some of them claim to be doing quite well on the vaccination front (we’ll see that in a minute), and good for them if so. But for any school that’s not well above the 80% mark – not just students, but faculty and staff and volunteers and contractors and pretty much everyone else who is regularly on campus – I’d be taking a hard look at our risks, both in terms of an outbreak and how likely the Lege actually is to follow through on a de-funding threat. Where is the bigger exposure? They all need to try to answer that question.

UTEP’s leaders said they feel they can reopen safely due to high vaccination rates in the surrounding community, citing in a note to the school community that more than 80% of El Paso residents 12 years or older have had at least one dose of the vaccine. The school has also ended testing for faculty and staff, encouraging them to use community testing centers, but will provide testing for students throughout the fall semester.

UTEP, along with some other Texas public and private universities, has asked students to voluntarily share their vaccine status.

Officials at UTEP estimated two-thirds of students and 90% of employees are fully vaccinated. Texas Tech University in Lubbock estimated about 75% of students and 90% of faculty are vaccinated, based on a voluntary spring survey. Baylor University said in a note that 47% of the campus community is vaccinated. Texas Christian University is also asking students to share their vaccine status ahead of the fall semester, but are not requiring vaccines and has said masks are “expected” but not required for unvaccinated students (NOTE: See update at the end).

[…]

Some private universities across the state have reacted to the increase in positive cases with stricter measures, though vaccines remain optional. On Tuesday, Rice University in Houston announced masks will be required indoors in group settings. Rice is also asking all students and employees to share their vaccination status. Those who are fully vaccinated must get tested every two weeks. Unvaccinated members coming to campus must test two times per week.

Trinity University in San Antonio is also requiring masks indoors and weekly tests for those who are unvaccinated. Baylor told students it will require weekly COVID-19 testing for the first part of the fall semester for students and employees, except for fully vaccinated students and students who have had a positive test within the last 180 days. St. Edward’s University in Austin initially said it would require a vaccine for all students, but later stated students could be exempt from that requirement under the governor’s executive order.

Emphasis mine. If you needed a reason to avoid Waco this fall, there you have it. There is definitely room here for colleges and universities, public and private, to at least put some of the costs of Delta on the unvaccinated. More frequent testing is an obvious one, but let’s not stop there. Require a vaccine or a positive test to attend sporting events, participate in intramural sports, attend any kind of public indoor event like lectures or movies or parties or concerts, eat in the cafeterias, and so on. Get vaxxed or stay distant, for your safety and everyone else’s, simple as that. That’s more likely to draw a lawsuit than a legislative response, but if so then there’s a decent chance you can get some people vaccinated before you’re forced to put the policy on hold, and maybe you won’t be forced to pause at all. See my earlier comment about evaluating risks and acting accordingly. Anything that results in more vaccinations should be strongly considered, even if it winds up being a short-term measure. Push that envelope, the long-term payoff is worth it. The Chron has more.

UPDATE: I received a message from TCU informing me that their policies have changed since that Trib story was published. They now require masks for indoor spaces. My thanks to them for the feedback.

Texas gets its Medicaid 1115 waiver back

Hrmph.

It’s constitutional – deal with it

A federal district judge on Friday temporarily reinstated a 10-year extension of a federal health care program that Texas uses to help pay for health care for uninsured Texans and is worth billions of dollars annually.

The agreement was set to expire next year after federal health officials in April rescinded the Trump-era extension to the 1115 waiver agreement — which Texas has had with the U.S. Centers for Medicare and Medicaid Services since 2011 and is up for review every few years — and ordered Texas to collect public input, as the agreement requires, while it renegotiates a new extension beyond its original October 2022 expiration date.

The decision did not stop the funding for the current waiver, which provides $3.87 billion in annual funding to partly offset free care provided by Texas hospitals to the uninsured, and to pay for innovative health care projects that serve low-income Texans, often for mental health services.

In his order on Friday, the U.S. District Judge J. Campbell Parker granted a preliminary injunction sought by Texas to block the federal government from rescinding the original Trump-era agreement. The decision removes the requirement, at least for now, for Texas to negotiate its deal with CMS if it wants 1115 funding beyond October 2022.

The decision by CMS was “likely unlawful” and resulted in “turmoil in the state’s Medicaid program,” in part because the state had already begun “reassigning staff, making plans, appropriating money, passing regulations, and engaging stakeholders to work towards implementing the necessary changes” allowed by the original deal, which was confirmed in January before it was rescinded by the Biden administration in April, Barker said in the order.

[…]

The 1115 waiver was meant to be temporary while Texas transitioned to an expanded Medicaid program under the Affordable Care Act of 2010, but that never happened because the U.S. Supreme Court ruled in 2012 that states couldn’t be forced to expand Medicaid.

Since then, the state has relied on the waiver for various programs to care for Texas’ uninsured, with Republican state leaders frequently leaning on it in their arguments against Medicaid expansion.

See here, here, and here for some background. I don’t know the technical details well enough to know if this is a reasonable decision on the merits or if Paxton once again found himself a super friendly judge. I’m not even sure if this means that the entire Trump-approved ten-year extension is back in play, or if there will be another opportunity for the Biden administration to force the issue, perhaps next year when the previous agreement was to expire. Perhaps if one of the alternate means of allowing/forcing Medicaid expansion is part of the reconciliation package, the issue can be revisited, or perhaps largely rendered moot. It does seem likely to me that Congress could change the terms of the 1115 waiver, as the issue here was over the executive action, I just don’t know who would be pushing that in the legislative process. All in all, a deeply unsatisfying state of affairs at this time.

Yes, the wastewater is also pointing to a COVID surge

In case you were wondering.

There is more COVID-19 in the city’s wastewater system now than at any time in the pandemic, city officials said Wednesday, the latest warning that the virus is spreading at an unprecedented rate.

Dr. David Persse, the city’s health authority, said there is more than three times as much virus in the system as there was last July. The volume also is higher than in January, during the most recent spike. Persse said that wastewater data, a precursor to other data points, show the surge will only grow worse in the coming weeks.

“We are at a level of virus in the wastewater that we have never seen before,” Persse said. “The wastewater predicts what we’ll see in the positivity (rate) by two weeks, which predicts what we’ll see in hospitalizations by about two weeks.”

[…]

The findings came during a news conference in which the city announced it will partner with Harris County and up to 17 school districts to vaccinate students over 12 and their families every Saturday in August, an effort they are calling “Super Saturday.” The inoculations will occur in school buildings throughout the region.

Persse described the state of the surge in stark terms, pointing to dire situations in area hospitals and rising cases and hospitalizations. The Lyndon B. Johnson Hospital declared an “internal disaster” Sunday night amid a nursing shortage and an influx of patients, circumstances officials said are occurring in other area hospitals, as well.

Texas Medical Center CEO Bill McKeon earlier this week said the region is “headed for dark times,” and the hospital system has exceeded its base intensive care capacity, opening unused wards to care for new patients.

“If you are currently unvaccinated, you need to consider that you represent a potential danger to yourself, and others, and most particularly your own family,” Persse said. “If you are not vaccinated… your chances getting through this without having to become either vaccinated or infected, is essentially zero.”

Just over 64 percent of Houstonians over 12 have received their first dose of the vaccine, according to city data, and 54.3 percent are fully vaccinated. The numbers among youth residents are more paltry, though: 28.1 percent of 12-17-year-old Houston residents are fully vaccinated, and 38.5 percent have received their first dose.

“If your child is 12 or older, stop and get them the shot,” said Houston ISD Superintendent Millard House II. “Increasing vaccination rates among our communities will help ease the worries of our families and their children returning to school.”

This is another one from earlier in the month, as things were really starting to get bad. We are familiar with this project, and it has been a big success. I just wish it had better news for us, but this is where we are. Getting more of those 12-and-older kids vaccinated would make a big difference as well, so I hope that effort is successful. We’re on our own, so we’d better act accordingly.