Justice Dept. probe of state nursing home COVID-19 rules draws criticism

The Justice Department is coming under fire for what critics see as a politically motivated investigation into coronavirus deaths in state-run nursing homes.

The Department of Justice (DOJ) is weighing whether to investigate if four Democratic-led states violated the civil rights of nursing home residents by requiring that homes not turn away other residents for readmission who had COVID-19.

The four states had issued rules to ensure that nursing home residents with COVID-19 who were not sick enough to have to stay in hospitals were readmitted to their homes.

Nursing home advocates and former DOJ officials have slammed the investigation as a nakedly partisan attack on Democratic governors.

“This was not intended to solve a problem that exists in nursing homes. It was intended to embarrass Democratic governors,” Jonathan Smith, executive director of the Washington Lawyers’ Committee for Civil Rights and Urban Affairs and a former Civil Rights Division official during the Obama administration, said of the probe.

Assistant Attorney General for Civil Rights Division Eric Dreiband sent letters last week to four Democrats, Govs. Andrew Cuomo of New York, Phil Murphy of New Jersey, Tom Wolf of Pennsylvania and Gretchen Whitmer of Michigan, requesting documents and information about how public nursing homes in their states responded to the coronavirus pandemic.

“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,” Dreiband said in a statement.

The agency said it was “evaluating whether to initiate investigations,” meaning that it had not actually launched a probe.

Smith said it was unusual for the agency to publicize such a preliminary inquiry.

Ordinarily, “that would be handled at a much, much lower level in a much quieter fashion, because you’re much more likely to get the information you’re looking for, and to use it to determine whether there’s a problem that warrants an investigation or not,” Smith said.

The DOJ said it was considering an investigation under the Civil Rights of Institutionalized Persons Act, a 40-year-old federal statute meant to protect Americans in government-run institutions such as jails, prisons, mental health facilities and state-owned nursing homes.

However, just 6 percent of all nursing homes in the country are publicly run, raising questions about the scope of any potential investigation.

The timing of the announcement, which came in the middle of the Republican National Convention and just over two months before Election Day, also raised concerns that the DOJ was being weaponized for political purposes.

“This is an abuse of authority. This is supposed to be an apolitical civil rights statute … and what the signs point to is that it’s being used to embarrass the president’s political opponents,” said Margo Schlanger, a law professor at the University of Michigan who was the top civil rights official at the Department of Homeland Security under former President Obama.

Advocates for nursing home industry reform said nursing facilities deserve to be investigated.

All four of the states that received DOJ letters issued controversial orders early in the pandemic that said nursing homes could not turn away patients who tested positive for COVID-19, as long as they were medically stable. The moves were meant to help relieve overburdened hospitals, which were sending patients elsewhere to help free up capacity.

Cuomo in particular has been dogged by criticism for his policy, which was ultimately rescinded in May.

Health advocates, nursing home residents and their families as well as nursing home operators have all said the policy was misguided, and that it helped spread the virus among the state’s most vulnerable residents.

The pandemic has “exposed the utter disregard that we show for the lives of people in nursing homes and assisted living and other adult care facilities. And so that was replicated I think largely by Cuomo, and to some extent by [other governors] as well,” said Richard Mollot, executive director of the Long Term Care Community Coalition.

“These residents were just not seen as being important at all,” Mollot added.

Nursing homes have been decimated by COVID-19. Once the virus takes hold in a nursing home, it can race through residents and staff. Residents of nursing homes account for roughly 35 to 40 percent of all coronavirus deaths in the United States.

According to the COVID Tracking Project, more than 6,600 people have died of COVID-19 in nursing homes and other long-term care facilities in New York, accounting for 26 percent of the state’s deaths. That number could be higher, because New York doesn’t count deaths of residents transferred to hospitals.

Cuomo has defended the policy, saying it followed federal guidelines and protected long-term care facility residents from discrimination. He has called the criticism politically motivated, dismissing it as a “political charade.”

In a joint statement with Whitmer, they pushed back at the DOJ request as a “nakedly partisan deflection.”

In Congress, House Majority Whip James Clyburn (D-S.C.), chairman of the panel overseeing the federal coronavirus response, has launched a sweeping investigation into the country’s five largest for-profit nursing home companies. But he also called the DOJ’s probe a “politically motivated investigation” in a statement to The Hill.

Advocates said the blame shouldn’t be dropped at the feet of a few Democratic governors.

“I think part of the problem is that the federal government stepped back from the very beginning on issuing concrete specific guidance, both for nursing homes, and for the states, so they left it to the states,” said Mollot.

“And the states did, for better or for worse, what they could. And I think some of the policies that came out, for instance in New York and New Jersey, were somewhat reflective of that,” Mollot said.