WASHINGTON – Sen.
Chuck Grassley (R-Iowa), Ranking Member of the Senate Judiciary Committee, led
a group of lawmakers in calling on the Justice Department to continue its probe
into whether state officials failed to comply with federal guidelines or
requirements for participation in federal programs in their response to coronavirus
infections among seniors and nursing home residents. The lawmakers are also
calling on the department to expand its review to consider whether any state
officials sought to conceal failures or unfavorable information or otherwise
obstruct justice.
“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. We also ask that you investigate
whether any such state directives were inconsistent with guidelines or
requirements for participation in Federal programs and determine whether there
was a cover-up or obstruction of justice by public officials who were the subject
of DOJ’s investigations,” the lawmakers
wrote in a letter to Attorney General Merrick Garland.
The Justice
Department
launched
an investigation last August into whether state orders in New York, New
Jersey, Pennsylvania and Michigan violated the civil rights of senior citizens
and nursing home residents. Since that investigation began, statements by New York
state officials indicate that the state intentionally withheld data on the rate
of COVID-19-related nursing home deaths. A subsequent report by the state’s
attorney general found that the actual rate of nursing home-related fatalities due
to the pandemic was understated by as much as 50 percent.
Grassley
was joined by Congressman Steve Scalise (R-La.-01), Ranking Member of the Subcommittee
on the Coronavirus Crisis as well as senators Tim Scott (R-S.C.), Ted Cruz
(R-Texas), Thom Tillis (R-N.C.) and Josh Hawley (R-Mo.). Text of the
letter
to Garland follows:
March 12, 2021
VIA ELECTRONIC TRANSMISSION
The Honorable Merrick Garland
Attorney
General
U.S.
Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, DC 20530-0001
Dear Attorney
General Garland:
We commend
the Department of Justice (DOJ) 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. 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.
As the
COVID-19 pandemic was beginning to accelerate last March, at least one
epidemiologist publicly warned that
“even some so-called mild or common-cold-type coronaviruses have been
known for decades [to] have case fatality rates as high as 8% when they infect
people in nursing homes.”
[1] This information—well known to many
geriatricians—hinted at the challenges facing many of the nation’s nursing
homes at the outset of the pandemic. Media reports highlighting the rapid spread of
COVID-19 in a Washington long-term care facility last March also underscored
the risks, for the elderly and often frail residents of nursing homes, of this
coronavirus.
[2]
Yet,
as the coronavirus spread throughout their jurisdictions, the governors of several
especially hard hit states “actually ordered nursing homes to accept patients
with active COVID-19 infections who were being discharged from hospitals,”
[3]
according to media reports. The governors issuing such directives include those
in New York
[4]
as well as Pennsylvania
[5]
(where 69 percent of the state’s COVID-19 fatalities were attributable to
nursing and personal care homes, as of last June),
[6] New
Jersey (where the case rate reportedly was roughly 52 percent as of last May),
[7]
and Michigan.
[8]
In New
York, which made national headlines for its case and fatality rates in the
earliest phase of the pandemic, the governor reportedly reinforced this
requirement on nursing homes in late April—well after the period in which COVID-19
cases at hospitals already had peaked.
[9] As noted by Forbes, the timing of one such
statement suggests that the issuance of the governor’s directive was not
entirely due to hospital overcrowding.
[10]
Meanwhile,
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. 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.
[11] 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.
[12] These temporary hospitals could have served
as an alternative to housing the infected in nursing homes in New York and
California.
Further,
the head of the Centers for Medicare and Medicaid Services (CMS) warned on May
27, 2020, that “[u]nder no circumstances should a hospital discharge a patient
to a nursing home that is not prepared to take care of those patients’ needs.”
[13] As reported by Politifact, the policy of the
Centers for Disease Control and Prevention (CDC) is that hospitals should
discharge patients with a COVID-19 diagnosis only to nursing homes and other long-term
care facilities that are capable of implementing all recommended infection
control procedures:
CDC “cited two ‘key
factors’ to consider when deciding whether to discharge a patient with
COVID-19 to a long-term care facility….First, is the patient medically ready
for discharge to a long-term care facility? And second,
is the selected long-term care facility able
to safely care for a patient recovering from the virus by implementing all
recommended infection control procedures? These [CDC] directives were in
place on or before March 23, two days before the state [of New York] issued its
advisory.”
[14]
State
officials in other parts of the country followed this CDC guidance, often with
better results. In Florida, for example, the governor last year signed an order
banning hospitals from discharging infected patients into long-term care
facilities.
[15]
Other states, instead of barring nursing homes from denying admission (or
readmission) to a patient solely based on a confirmed or suspected coronavirus diagnosis,
designated some facilities for COVID-19 treatment only—an approach that some
have characterized as a safer way to free up hospital beds for the most
severely ill.
[16]
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.
[17]
Questions about these officials’ practices have become increasingly compelling,
in the weeks following the issuance of a report by New York’s attorney general.
That report, issued in late January, shows that COVID-19-related nursing home
deaths in New York were undercounted by as much as 50%--resulting in thousands
of COVID-19-related nursing home deaths not being reported properly last year.
[18]
Only after
the issuance of this attorney general’s findings did New York’s governor publicly
acknowledge the coronavirus-related deaths of 15,000 nursing home residents in
his state (not the 8,500 that his administration previously had reported).
[19]
Reportedly, a top aide to the governor,
Melissa DeRosa, acknowledged that the state had withheld nursing home data
"because it feared an investigation” by DOJ.
[20] As noted in a media account:
“Ms. DeRosa’s jarring
admission came when she was asked about ongoing delays in giving lawmakers
nursing home death data. She said that after the Department of Justice
requested information last summer, ‘basically, we froze….We were in a position
where we weren’t sure if what we were going to give to the Department of
Justice, or what we give to you guys, and what we start saying, was going to be
used against us and we weren’t sure if there was going to be an investigation,’
Ms. DeRosa said during the call, according to a partial transcript later
released by the governor’s office after her remarks appeared in the New York
Post.”
[21]
In the
wake of this admission by Ms. DeRosa, a New York assemblyman stated that New
York’s governor allegedly threatened political retaliation if the assemblyman
did not publicly back the governor. As
reported by CNN, this assemblyman, Ron Kim, disclosed: "’Gov. Cuomo called me directly on
Thursday to threaten my career if I did not cover up for Melissa [DeRosa] and
what she said.
[22]
He tried to pressure me to issue a
statement, and it was a very traumatizing experience." Governor Cuomo reportedly
told the assemblyman: "’we're in this business together and we don't cross
certain lines and he said I hadn't seen his wrath and that he can destroy me,’
according to Kim.”
[23]
More
recently, the news media reported that some of the New York governor’s senior aides
had a hand in rewriting a state nursing home official’s report, resulting in
the undercounting of nursing home deaths attributable to COVID-19.
[24] As noted by the Wall Street Journal, for
example:
“The changes Mr. Cuomo’s aides
and health officials made to the nursing-home report, which haven’t been
previously disclosed, reveal that the state possessed a fuller accounting of
out-of-facility nursing-home deaths as early as the summer. The Health
Department resisted calls by state and federal lawmakers, media outlets and
others to release the data for another eight months.”
[25]
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.
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. We also ask that you investigate whether any
such state directives were inconsistent with guidelines or requirements for
participation in Federal programs and determine whether there was a coverup or
obstruction of justice by public officials who were the subject of DOJ’s
investigations.
Thank
you for your consideration, and if you have any questions, please contact
Evelyn Fortier of Senator Grassley’s staff at 202-224-4324.
Sincerely,
-30-
[3] Avrik
Roy, supra note 1 (“an astounding 42%
of all COVID-19 deaths have taken place in nursing homes and assisted living
facilities,” which house 0.62% of the U.S. population).
[9] Avik
Roy,
supra note 1.
[12] Id.
(noting that “
[u]nderutilization of
added medical resources in New York City is not unique to the Comfort.
Thousands of hospital beds made available in a converted convention center have
gone largely unused after quick assembly by the U.S Army Corps of Engineers.”)
[13] Danielle
Brown, “Verma Calls out Cuomo for forcing NY nursing homes to take COVID-19
patients,”
McKnights Long Term Care News
(May 29, 2020) (citing Fox News interview with CMS Administrator Seema Verma),
available at https://www.mcknights.com/news/verma-calls-out-cuomo-for-forcing-ny-nursing-homes-to-take-covid-19-patients/. A March 13
th CMS document “says that
nursing homes should only accept those patients for which they can
care. The CMS memo also states: ‘Per CDC, prompt detection, triage
and isolation of potentially infectious residents are essential to prevent unnecessary
exposures among residents, healthcare personnel, and visitors at the facility.
Therefore, facilities should continue to be vigilant in identifying any
possible infected individuals.’” Jill
Terreri Ramos, “ New York’s nursing home policy was not fully in line with
CDC,”
Politifact (Jun. 13, 2020),
available at https://www.politifact.com/factchecks/2020/jun/13/andrew-cuomo/new-yorks-nursing-home-policy-was-not-line-cdc/
[14] Jill Terreri Ramos,
supra note 13 (characterizing as “mostly false” a statement by New
York Gov. Cuomo regarding CDC’s policy) [emphasis added].
[15] Don Shaw,
supra note 6.
[16] Danielle
Brown,
supra note 13.
[17] As
noted by Politifact, “the AMDA Society for Post-Acute and Long-Term Care
Medicine issued a statement on March 26 opposing the New York Governor’s]
order: "We find the New York State Advisory to be over-reaching, not
consistent with science, unenforceable, and beyond all, not in the least
consistent with patient safety principles." A joint statement by that
organization and others in long-term care three days later reinforced
their objections: ‘a blanket order for every nursing home in the state to
accept all admissions from hospitals is not sound policy.’” Jill
Terreri Ramos,
supra note 13.
See also Report of New York Attorney
General Letitia James, “Nursing Home Response to
COVID-19 Pandemic” at 37 (updated Jan. 30,
2021),
available at https://ag.ny.gov/sites/default/files/2021-nursinghomesreport.pdf (“over 4,000 nursing home deaths
occurred after the issuance of the [New York governor’s] March 25 guidance. While
additional data and analysis would be required to ascertain the effect of such
admissions in individual facilities, these admissions may have contributed to
increased risk of nursing home resident infection, and subsequent fatalities”).
[18] Report of New York Attorney General
Letitia James,
supra note 17 at 11 (“preliminary
data for the 62 facilities and time periods noted above suggests that COVID-19
resident deaths associated with nursing homes in New York state appear to be
undercounted by DOH by approximately 50 percent”).