Department of Justice wants COVID-19 data on Michigan nursing home deaths

Craig Mauger
The Detroit News

Lansing — The U.S. Department of Justice says it wants "COVID-19 data" from Michigan Gov. Gretchen Whitmer as it examines executive orders during the pandemic that "may have resulted in the deaths of thousands of elderly nursing home residents."

The Wednesday move escalates a long-brewing fight over policies implemented by some governors to care for elderly individuals with the virus in nursing homes amid fears of hospitals being overrun.

The U.S. Department of Justice's Civil Rights Division is evaluating whether to launch investigations under the Civil Rights of Institutionalized Persons Act, which protects the rights of persons in state-run nursing homes, a press release said. The division sent letters seeking data to Whitmer and the governors of New York, New Jersey and Pennsylvania, three states controlled by Democrats.

A worker inside the building wears PPEs while pulling back a curtain to watch the protest.

"Protecting the rights of some of society’s most vulnerable members, including elderly nursing home residents, is one of our country’s most important obligations,” said Eric Dreiband, assistant attorney general for Civil Rights Division. “We must ensure they are adequately cared for with dignity and respect and not unnecessarily put at risk.”

But Whitmer's administration labeled the Department of Justice letter "nothing more than election year politics."

"Protecting the health, safety, and well-being of our seniors and most vulnerable residents has been a top priority throughout this crisis," Whitmer's spokeswoman Tiffany Brown said. "The fact that this letter was sent during the middle of the Republican National Convention week to four Democratic governors should make it crystal clear that this is nothing more than election year politics by an administration that is more concerned with the president's re-election campaign than protecting Michigan seniors."

Whitmer and New York Gov. Andrew Cuomo also issued a joint statement, calling the data request a "a transparent politicization of the Department of Justice in the middle of the Republican National Convention" that began Monday.

The department should send letters to the Centers for Disease Control & Prevention and the Centers for Medicare & Medicaid Services because the states' policies were modeled after their guidance, Whitmer and Cuomo said.

"At least 14 states — including Kentucky, Utah, and Arizona — have issued similar nursing home guidance all based on federal guidelines — and yet the four states listed in the DOJ’s request have a Democratic governor," they added.

About 32% of Michigan's 6,417 overall COVID-19 deaths have been nursing home residents, according to state data.

The letter sent to Whitmer seeks data on "public nursing home" staff, residents and visitors who contracted COVID-19 and those who died from the virus. It's unclear how many of Michigan's more than 400 nursing homes are considered "public nursing homes" that are operated by or provide services on behalf of the state or one of its subdivisions.

The letter also seeks the number of people who were admitted to a public nursing home from a hospital after testing positive for COVID-19.

"We have not reached any conclusions about this matter," the letter from the department to Whitmer said. "In the division’s many years of enforcing CRIPA, the good faith efforts of state, county or local jurisdictions working with us have enabled us to resolve many matters amicably."

The states facing the requests for information "required nursing homes to admit COVID-19 patients to their vulnerable populations, often without adequate testing," according to the press release from the department.

Officials in Michigan have said they didn't force any nursing homes to take COVID-19 patients whom the facilities didn't believe they could care for properly.

However, the state's policies focused on caring for those with the virus within isolated areas of existing nursing homes. Critics of the policies say they helped the virus spread within the facilities and have called for entirely separate facilities to treat residents with the COVID-19.

In July, a Detroit News review of inspection reports for the 45 nursing homes with the most deaths linked to COVID-19 found that nearly half had been cited in the last four months for failing to follow infection control, isolation or staffing policies.

In April, Whitmer's administration created regional hubs — 21 nursing homes that are supposed to have the equipment and capacity to care for those with COVID-19 in separate areas from residents without the virus. The hubs can receive stable COVID-19 patients being discharged from hospitals and residents from other facilities not capable of properly caring for them.

In late July, Whitmer vetoed a bill from the GOP-controlled Legislature that would have shifted elderly people with COVID-19 away from nursing homes and into entirely separate facilities. In a letter explaining her veto, the Democratic governor said the bill, sponsored by Sen. Peter Lucido, R-Shelby Township, was based on "the false premise that isolation units created within existing facilities are somehow insufficient to protect seniors."

"Instead of protecting seniors, this bill would require the state to create COVID-19-only facilities, forcing hospitals and many nursing homes to send COVID-19-positive patients to such facilities without any requirement for consent, doctor approval or notification to the patient or their family," the governor added. "The legislation fails to explain how such facilities would be staffed or paid for, or how frail residents would be protected during the potentially traumatic transfer from one facility to another."

Every state with coronavirus nursing home guidelines like those of the Whitmer administration has since shifted to a policy similar to what Republicans proposed, said Lucido, who wants legislative leaders to schedule a veto override vote. 

The Shelby Township Republican, who is running for Macomb County prosecutor in the fall, has noted the Whitmer administration's paying regional hubs $5,000 per bed in the program and $200 per day for occupied beds.

"They incentivized bringing COVID patients into nursing homes," Lucido told The Detroit News in late July. "They sweetened the deal."