Attorney General Dana Nessel will not be opening an investigation into the state’s handling of COVID-19 policies in nursing homes, her office announced Monday, in response to a February request from eight Senate Republicans to “investigate claims of abuse and neglect.”
The Democratic attorney general also testified Tuesday before a House Appropriations Subcommittee on her reasoning to not open an investigation. Nessel told lawmakers that before declining the inquiry, she consulted with New York Attorney General Letitia James, who is investigating New York Gov. Andrew Cuomo’s pandemic nursing home policies amid news reports that his administration withheld the death toll in facilities. Both are Democrats.
“[James] told me, ‘Had my evidence been the same as your evidence, we never would have performed this investigation,’” Nessel said. “… It really would have been very political in nature [in Michigan], and not based on the facts and not based on the evidence, and that is why I declined.”
Signees of Runestad’s letter had included state Sens. Tom Barrett (R-Potterville), Ruth Johnson (R-Holly), Kim LaSata (R-Bainbridge Twp.), Roger Victory (R-Georgetown Twp.), Lana Theis (R-Brighton), Dale Zorn (R-Ida) and Curtis VanderWall (R-Ludington).
Macomb County Prosecutor and former state Sen. Peter Lucido, a Republican, announced recently his own plans to investigate nursing home-related COVID-19 deaths and potentially bring charges against Gov. Gretchen Whitmer’s administration. During her testimony Tuesday morning, Nessel called his actions “a recipe for misconduct.”
“To me, the inference there is: I want to prosecute someone. Help me do that — without even knowing that a crime has occurred in the first place,” she said.
The first point of investigation the senators had asked for in February was an inquiry into the processes and policies that may have contributed to the spread of COVID-19 among Michigan’s nursing home residents.
“I see no evidence in your letter or elsewhere to suggest that Governor Whitmer’s efforts to contain COVID-19 in Michigan’s nursing homes resulted in increased deaths,” Nessel responded, noting that a recent University of Michigan Center for Health and Research Transformation report concluded otherwise compared to the U.S. average.
Nessel also said that bad policy alone would not be grounds for an attorney general investigation and “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.”
The GOP lawmakers had also asked Nessel to look into the accuracy of the data reported by the Whitmer administration and discrepancies in facility reporting policies. In response, Nessel wrote that “no specific allegations of wrongdoing” were provided, and “the bulk of [the lawmakers’] accusations are anecdotal references to differences in reporting by individual (and unidentified) long-term care facilities.”
Nessel also addressed the claim that the state has not required nursing homes to report COVID-19 deaths of patients who are transferred to a hospital before passing away.
“There is no information in your letter to distinguish your observations from anything more than good faith reporting errors — if errors at all. If reporting guidance from the state or federal governments has been confusing or incomplete, an investigation by the state’s top law enforcement official is not the appropriate remedial mechanism to improve policy in this regard,” Nessel wrote.
The last two points Runestad had requested an investigation into were vague: The state’s compliance with all Centers for Disease Control (CDC) guidelines and reporting requirements, and compliance with Michigan’s Freedom of Information Act (FOIA) as it pertains to nursing home policies.
But Nessel noted that the lawmakers did not specify which CDC rules or FOIA requests they are concerned about, nor how they believe either had been violated.
Even if there had been violations in either case, Nessel said there is no criminal penalty available for breaking CDC guidance and only a civil fine and other court-enforced remedies for violating FOIA compliance. Either would not be under the purview of Nessel’s office.
“Though I will not hesitate to act when justified, I also will not abuse the investigatory powers of this Department to launch a political attack on any state official, regardless of party or beliefs,” Nessel wrote. “… You have provided insufficient indic[ation] that any law has been violated and thus no investigation is warranted at this time.”
Runestad had also requested in April 2020 that Nessel investigate the state’s rushed decision to establish a statewide COVID-19 contact tracing program using a Democratic firm. The attorney general cleared DHHS of any criminal conduct in January.
“I appreciate the concern raised by Sen. Runestad but I also appreciate the reality under which this contract was pursued,” Nessel said in January. “With the benefit of hindsight, there may have been a better way to accomplish the Department’s ultimate purpose but we found no evidence of criminality.”