Department of Justice not opening probe of Michigan nursing homes

Craig Mauger
The Detroit News

Lansing — The U.S. Department of Justice says it's not opening a civil rights investigation into Michigan nursing homes after requesting information from the state last year amid intense scrutiny during the COVID-19 pandemic.

In August, when former President Donald Trump's administration was still in office, the federal department requested data from Michigan Gov. Gretchen Whitmer as it examined executive orders for nursing homes issued in some states led by Democrats.

The Department of Justice joins Michigan Attorney General Dana Nessel in declining to probe the policies on which Republicans have focused attacks. While GOP lawmakers have pressed to uncover more information about how the orders impacted the virus' spread among a vulnerable population, the lack of law enforcement inquiries hinders their efforts.

"We have reviewed the information you provided along with additional information available to the department," wrote Steven Rosenbaum, chief of the special litigation section for the department's civil rights division, in a letter to Whitmer's chief legal counsel, Mark Totten, on Thursday.

"Based on that review, we have decided not to open a CRIPA (Civil Rights of Institutionalized Persons Act) investigation of any public nursing facility within Michigan at this time."

The Department of Justice's request in August came amid the presidential campaign and escalated a long-brewing fight over policies implemented by some governors on how to care for elderly individuals with the virus in nursing homes amid fears of hospitals being overrun.

At the time, the department's civil rights division was 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 other states controlled by Democrats.

"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 the Civil Rights Division, in August. “We must ensure they are adequately cared for with dignity and respect and not unnecessarily put at risk.”

The U.S. Department of Justice says it's not opening a civil rights investigation into Michigan nursing homes after requesting information from the state last year amid the COVID-19 pandemic.

For longer than a year, nursing homes have been a point of contention between GOP lawmakers, who control the state Legislature in Michigan, and the Democratic governor's administration. According to state data, 5,756 COVID-19 deaths in Michigan have been either residents or staff of long-term care facilities, equaling about 29% of the statewide virus-linked deaths.

Whitmer's administration labeled the Department of Justice's August letter "nothing more than election year politics." Whitmer and New York Gov. Andrew Cuomo also issued a joint statement, calling the data request "a transparent politicization of the Department of Justice."

On Thursday, Whitmer's spokesman, Bobby Leddy, noted that Nessel also refused a Republican request to investigate the governor's nursing home policies. It's time "to end the political games and work together to get things done for Michiganders," Leddy said.

"Throughout the pandemic, our administration took swift action, following the best data and science from the CDC (Centers for Disease Control and Prevention), to slow the spread of COVID-19 and protect Michiganders, including vulnerable residents in long-term-care facilities," Leddy said. "I want to be clear: at no point were nursing homes ever forced to take COVID-positive patients.

"Instead, we made the smart decision to require that residents who contracted this deadly disease be kept as far away from others as possible to prevent more people from getting sick."

In March, Nessel, who is a Democrat, said state Sen. Jim Runestad, a Republican from White Lake, had provided insufficient indication that "any law has been violated" in requesting an investigation into the nursing home policies.

“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 had said in February.

The state Department of Health and Human Services created regional hubs in April 2020 to help care for nursing home residents with COVID-19. The hubs were existing nursing homes that were supposed to have the isolated space, equipment and personnel to help elderly individuals with the virus 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 COVID-19 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.

Macomb County Prosecutor Pete Lucido, a former Republican state senator, has been among the most vocal critics of Whitmer's nursing home policies. In an interview Thursday, Lucido noted the state auditor general is reviewing the accuracy of Michigan's data pertaining to COVID-related deaths at long-term care facilities. 

Lucido said the Department of Justice might not have had the authority needed to examine Michigan's nursing home policies. He wanted Nessel's office to investigate, he added.

People are desperate for answers "as to what happened when they couldn't see or they couldn’t properly communicate with their loved ones," the county prosecutor said.