Nessel says she consulted New York AG before declining nursing home investigation

Beth LeBlanc
The Detroit News

Attorney General Dana Nessel told lawmakers she consulted the New York attorney general — who is investigating New York Gov. Andrew Cuomo's nursing home and data policies — before declining a similar review of nursing home policies in Michigan.

Michigan Attorney General Dana Nessel

The Plymouth Democrat said the Macomb County Prosecutor Peter Lucido's request for complaints about Gov. Gretchen Whitmer's nursing home policies is a "recipe for misconduct" that smacks of partisanship. 

"I do take umbrage to some extent with an effort to ask people to bring evidence forward that you don’t know exists," Nessel said. 

New York's case differed in terms of probable cause because a "whistleblower" had come forward regarding data manipulation, Nessel said during a hearing before the House Appropriations Subcommittee on General Government.

"We had no evidence of any kind that the governor or anyone from her office had misrepresented the numbers ... that were provided to the department of justice," Nessel said.

"We had no indication that there was a crime of any sort, which was absolutely not the case in New York," she said. 

Cuomo has taken fire for allegedly withholding data on nursing home resident deaths at hospitals, keeping the actual number of nursing home deaths artificially low by counting only those deaths that occurred at nursing homes themselves. 

His top aide, Melissa DeRosa, told New York Democratic lawmakers the release of that data was delayed because officials were concerned the data would be "used against us" by former President Donald Trump's Department of Justice. 

Nessel said New York Attorney General Letitia James told her she would not have performed an investigation if the evidence in New York was similar to what was available in Michigan. 

"It should not be an investigation that is based on whether or not in an emergency set of circumstances the best possible set of policies was utilized," Nessel said. 

Last week, Lucido, a Republican former state senator, called for the county medical examiner's office to create a committee for reviewing nursing home deaths related to COVID-19 and announced an online form for families to file with law enforcement to investigate fatalities. 

Nessel criticized Lucido's action, arguing that if he had any sort of probable cause he would be able to obtain a search warrant to review nursing home documents without submissions from families. 

"The inference there is, 'I want to prosecute someone, help me do that,' without knowing whether a crime was committed in the first place," she said. "It makes that investigation seem very, very partisan."

Lucido on Tuesday argued the review was not partisan because he had families on both sides of the aisle contacting him about the policy in the Senate and in his new role as prosecutor.

"We are trying to get information, to give closure and healing to the families who couldn’t say goodbye to their loved ones and now can’t get an answer," Lucido said. 

If the attorney general chooses not to investigate, that is up to her discretion, he said. Lucido said he would not have felt the same obligation to take up the case if other law enforcement officials had taken on the mantle.

"But being the top law enforcement official in the state, why would you leave it to a patchwork of 83 counties to do this when you have the resources and tools ready to go?" the Macomb County prosecutor said.

New York and Michigan were among four states from which the U.S. Department of Justice in August sought data on nursing home deaths during the pandemic. 

As of Monday, the state had reported 23,978 cases of COVID-19 among residents of long-term care facilities and 5,549 deaths. 

But when the state of Michigan responded to the U.S. Department of Justice in September, the responsive data provided to the department was very limited because the department's request was limited to public nursing homes.

Michigan has just two public nursing homes — the Grand Rapids Home for Veterans and the D.J. Jacobetti Home for Veterans — and 34 county-owed facilities. 

The numbers provided to the Department of Justice included separate numbers for veterans homes and grouped together numbers for the county-owned facilities. The state also provided a link to other public health data on private nursing homes on the state's website.