Attorney General Nessel won't investigate Gov. Whitmer's nursing home policies

Craig Mauger
The Detroit News

Lansing — Michigan Attorney General Dana Nessel says an investigation into Gov. Gretchen Whitmer's handling of nursing homes during the COVID-19 pandemic isn't warranted "at this time."

In response to a request from state Sen. Jim Runestad of White Lake, Nessel, a Democrat and the state's top law enforcement official, said the Republican senator had provided insufficient indication that "any law has been violated."

"I appreciate that you and your colleagues have policy disagreements with Governor Whitmer’s response to COVID-19," Nessel wrote. "But an investigation by my office is not the mechanism to resolve those disagreements."

Michigan Attorney General Dana Nessel provides an update on COVID-19 in Michigan on Tuesday, Dec. 15, 2020.

The decision is a setback for Republicans in the state Legislature who have slammed the Democratic governor's executive decisions for nursing homes over the last 12 months and sought to force the disclosure of more information about what happened inside the facilities.

As of Monday, 5,624 COVID-19 deaths were linked to long-term care facilities in Michigan, about 35% of the overall death total, according to state data.

Whitmer's administration created 21 regional hubs in April to help care for nursing homes residents with COVID-19. The hubs were existing nursing homes that were supposed to have the isolated space, equipment and personnel to care for those with COVID-19 who were being discharged from hospitals or resided in other facilities that couldn't properly handle them.

But Republican lawmakers repeatedly called for the creation of entirely separate facilities to care for those with the coronavirus to stem its spread among a vulnerable population. Nearly half of the nursing homes that Michigan initially selected to serve as regional hubs to care for elderly individuals with COVID-19 had below-average quality ratings from the federal government.

In addition, some nursing homes struggled to implement isolation and safety protocols to contain the virus.

Robert Gordon, the former director of the Michigan Department of Health and Human Services, told state lawmakers in September that there were "many complexities" to establishing entirely separate facilities to care for nursing home residents with COVID-19. They included staffing and equipping the buildings and moving people from one place to another, he said.

Runestad and seven other senators sent a letter to Nessel on Feb. 23 requesting "a full investigation into Gov. Whitmer’s handling of pandemic mitigation in our state’s long-term care facilities."

Michigan State Sen. Jim Runestad, R-White Lake

“Gov. Whitmer’s regional hub policy placed patients with and without COVID-19 in the same facilities and may have increased the death toll in those facilities,” Runestad said Monday.

He added, "Grieving families are tired of the stonewalling. We need an investigation now, because families deserve answers."

Runestad had requested Nessel examine policies that contributed to the spread of the virus in nursing homes, the accuracy of data reported by the Whitmer administration, compliance with federal guidelines and compliance with open records requirements.

But Nessel wrote Monday that she saw "no evidence" in Runestad's letter or "elsewhere to suggest that Gov. Whitmer’s efforts to contain COVID-19 in Michigan’s nursing homes resulted in increased deaths."

"The suggestion that these public health policy decisions, by themselves, should be investigated because different approaches could have resulted in fewer deaths is inappropriate and violates well-established ethical guidelines for investigations by law enforcement agencies," Nessel wrote.

The attorney general cited a Sept. 8 report from the Center for Health and Research Transformation at the University of Michigan that concluded that, overall, Michigan’s strategy to contain COVID-19 nursing homes "performed well." The report was funded by the Michigan Health Endowment Fund, which has a board appointed by the governor, according to the center's website.

The attorney general's decision doesn't mean the scrutiny is over.

Last week, Macomb County Prosecutor Peter Lucido, a former Republican 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.

In addition, journalist Charlie LeDuff and the Mackinac Center Legal Foundation have filed a lawsuit against the Michigan Department of Health and Human Services, seeking data related to COVID-19 deaths at nursing homes.

Nessel wrote Monday that Runestad had raised "concerns regarding the accuracy of data reported by the governor’s administration" but hadn't provided "specific allegations of wrongdoing."

Staff Writers Beth LeBlanc and Mike Martindale contributed.