Republican senators are calling on the Biden Justice Department to continue the Trump-era investigations into COVID-19 nursing home policies in New York, New Jersey, Pennsylvania, and Michigan and want the DOJ to expand the inquiry into whether any of the states obstructed investigators.
The Trump Justice Department launched the inquiry into the coronavirus policies of New York Gov. Andrew Cuomo, New Jersey Gov. Phil Murphy, Pennsylvania Gov. Tom Wolf, Michigan Gov. Gretchen Whitmer — all Democrats. The Biden DOJ has remained largely mum on these inquiries, even after Attorney General Merrick Garland was confirmed.
“We commend the Department of Justice for launching an investigation last year into four states’ practices of pressuring nursing homes to admit residents who may have been infected with the COVID-19 virus,” the Republicans said. “We urge that you continue to pursue this investigation. We also ask that you explore whether state officials who were the subject of DOJ’s investigation engaged in obstruction of justice or violated rules for participation in federal programs.”
The letter was signed by Sen. Chuck Grassley, ranking member on the Senate Judiciary Committee, Sens. Ted Cruz, Thom Tillis, and Josh Hawley, also of that committee, Sen. Tim Scott, a ranking member on the Select Committee on Aging, and Rep. Steve Scalise, ranking member on the Subcommittee on the Coronavirus Crisis.
“State authorities in New York also did not rely, in any truly meaningful way, on the temporary hospitals that the federal government set up in their jurisdiction,” the letter contended. “For example, the U.S. Navy sent an entire hospital ship staffed with a crew of 1,200 to treat COVID-19 patients, but the 1,000 bed hospital ship departed New York on April 30, 2020, having treated fewer than 200 during its month-long stay. In addition, the U.S. Army Corps of Engineers set up a temporary hospital inside the nation’s biggest convention center, the Jacob K. Javits Center, at the end of March, which by early April had the capacity to treat up to 2,500 patients but was largely underused.”
The FBI and the Brooklyn federal prosecutor’s office opened an investigation into Cuomo’s handling of nursing homes and nursing home death data during the coronavirus pandemic, according to the Times Union and multiple other reports in mid-February. Since then, numerous women have also accused the governor of sexual harassment and unwanted advances, and he has resisted calls to resign.
The Democrat, who wrote a book touting his handling of the health crisis, has come under heightened scrutiny in recent months, with a New York attorney general investigation finding Cuomo’s administration obscured key data and issued directives that might have led to an increase in nursing home deaths.
In addition, multiple media investigations concluded that New York undercounted the number of coronavirus patients sent into nursing homes in New York, fueling calls by Republicans, and an increasing number of Democrats, for transparency and accountability.
The Justice Department is seeking COVID-19 data “from the governors of states that issued orders which may have resulted in the deaths of thousands of elderly nursing home residents,” it announced in August 2020.
The department set its focus on New York, New Jersey, Pennsylvania, and Michigan, which it said had “required nursing homes to admit COVID-19 patients to their vulnerable populations, often without adequate testing.” That inquiry expanded in October 2020.
“As we publicly said, DOJ has been looking into this for months,” Cuomo senior adviser Rich Azzopardi told the Washington Examiner in February. “We have been cooperating with them, and we will continue to.”
Cuomo aide Melissa DeRosa told New York state legislators during a Zoom call in February that Trump “turns this into a giant political football” and “starts tweeting that we killed everyone in nursing homes.”
The Cuomo administration “froze” when the DOJ and New York lawmakers both pressed for info in 2020, she said.
“These accounts raise additional questions about whether the Cuomo administration intentionally concealed the extent of the problem facing New York’s nursing homes during the national emergency period,” the GOP said. “Nursing homes remain hotspots for the coronavirus, which is why we ask that DOJ continue to diligently investigate the extent to which four states’ governors violated the civil rights of nursing home residents and failed in their duty of care.”
Cuomo’s administration gave the DOJ requests “precedence,” he said during a February press conference.
His administration fully “replied to” the Justice Department’s request in August and to its October request by “voluntarily producing information for that on a rolling basis,” as recently as Jan. 8, he added.
In February, and again this week, the Justice Department declined to answer the Washington Examiner’s questions about the status of its nursing home investigations into Cuomo and the other states, what information has been received, what actions will be taken in the future, whether it has responded to congressional inquiries, and whether Cuomo’s claims were accurate.
The controversy stems from a March order from the New York State Department of Health requiring nursing homes to accept patients infected with COVID-19.
“No resident shall be denied re-admission or admission to [a nursing home] solely based on a confirmed or suspected diagnosis of COVID-19. [Nursing homes] are prohibited from requiring a hospitalized resident who is determined medically stable to be tested for COVID-19 prior to admission or readmission,” the order from March 25 said. It was rescinded on May 10.
Cuomo claimed in May 2020 that “New York followed the president’s agency’s guidance, so that depoliticizes it. What New York did was follow what the Republican administration said to do.”
Seema Verma, then the administrator for the Centers for Medicare & Medicaid Services, pushed back on Cuomo’s claims.
“The issue the governor is bringing up, which I disagree with, is that somehow federal guidance said you should put people who are COVID-positive in the nursing home,” Verma said that month, adding that “under no circumstances should a hospital discharge a patient to a nursing home that is not prepared to take care of those patients’ needs.”
“State officials who pressured nursing home administrators to admit untested and contagious COVID-19 patients from hospitals likely increased the case rate or fatality risks for residents of nursing homes in these jurisdictions,” the GOP letter contended.
New York Attorney General Letitia James, a Democrat, issued a report in January that concluded, “Nursing home implementation of some guidance may have led to an increase risk of fatalities in some facilities and may have obscured data reported by nursing homes.” She said that “4,000 nursing home deaths occurred after the issuance of the March 25 guidance.”
More than 9,000 recovering coronavirus patients in New York “were released from hospitals into nursing homes early in the pandemic” due to Cuomo’s March order, the Associated Press reported in February.
That number of patients transferred to hundreds of nursing homes is over 40% higher than what data previously released by the state health department showed, according to the Associated Press.
New York is not the only state facing heightened scrutiny over its nursing home policies.
During a conference call held by New Jersey Health Commissioner Judith Persichilli on March 31, 2020, with hundreds of nursing home operators, concerns were raised about Murphy’s directive, according to a recording obtained by NJ Advance Media and reported by NJ.com on Sunday.
“Patients will die,” one long-term care facility operator said. “You understand that by asking us to take COVID patients, by demanding we take COVID patients, that patients will die in nursing homes that wouldn’t have otherwise died had we screened them out.”
Pennsylvania Republican House Majority Leader Kerry Benninghoff said Monday that a state-level inquiry into Wolf’s directive had been sent to Pennsylvania’s House Government Oversight Committee.
“While we are hopeful that an end to this pandemic may be in sight, we cannot stop asking questions about the government’s role in containing the spread of the virus,” Benninghoff said in a release. “More than 12,700 Pennsylvanians died in nursing homes — over half of Pennsylvania’s virus-related deaths — and, to date, families across the Commonwealth have not received answers as to why and whether or not government orders contributed to the spread of the virus in these facilities.”
After Michigan state legislators called for an investigation into Whitmer’s actions, Michigan Attorney General Dana Nessel said Monday that she would not be launching a criminal investigation.
“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 replied in a letter. “I appreciate that you and your colleagues have policy disagreements with Governor Whitmer’s response to COVID-19. But an investigation by my office is not the mechanism to resolve those disagreements.”
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