Justice Department won’t probe Michigan nursing home deaths

The Justice Department said Thursday it will not open a civil rights investigation related to COVID-19 deaths in Michigan’s nursing homes.

The notification to Gov. Gretchen Whitmer came nearly 11 months after the department’s Civil Rights Division during the Trump administration requested data from the Democratic governors of four states, including Michigan, and said it was considering whether to investigate under a federal law that protects the rights of people in public nursing homes. Most nursing homes are privately owned.

Related: Michigan auditor to review nursing home deaths

"We appreciate your cooperation with this matter," Stephen Rosenbaum, chief of the special litigation section within the Civil Rights Division, wrote to Mark Totten, Whitmer’s chief lawyer.

Confronted with surging hospitalizations early in the pandemic, Michigan addressed the discharge of coronavirus patients no longer needing acute care but still in quarantine.

Whitmer ordered that nursing homes not prohibit the admission or readmission of residents based on COVID-19 testing results. Her office told the Justice Department, however, that the policy never went into effect because the state health department did not issue necessary guidance due to nursing homes’ concerns.

Her order also required homes with occupancy below 80% to create a unit dedicated to residents with the virus. Hospitals had to send recovering COVID-19 patients back to their nursing facilities — if they had a dedicated unit, protective equipment for staff and enough beds — or to regional "hub" nursing homes.

Republican lawmakers have accused the governor of fueling the spread of the virus in places with vulnerable residents. There is no evidence the policy led to infections, however. Whitmer has said it complied with federal guidance. State officials and the long-term care industry have said outside community spread, including from infected workers, is the strongest predictor of cases inside the facilities.

Whitmer spokesman Bobby Leddy said no nursing home was 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," he said in a statement. "It’s deeply disturbing that Republicans sought to politicize the worst public health crisis in 100 years, especially when their own policies would have contributed to even greater spread and loss of life — and, at every step of the way, they opposed the very actions the governor took that saved thousands of lives."

The deaths of more than 5,600 long-term care residents have been tied to the virus, accounting for about 29% of Michigan’s confirmed 19,800-plus deaths.

State Attorney General Dana Nessel, a Democrat, has declined GOP legislators’ request to investigate, citing a lack of evidence that any law was violated. The state auditor general has agreed to Republicans’ request to review the accuracy of the number of virus deaths linked to nursing homes and other long-term care facilities.