Law360 is providing free access to its coronavirus coverage to make sure all members of the legal community have accurate information in this time of uncertainty and change. Use the form below to sign up for any of our weekly newsletters. Signing up for any of our section newsletters will opt you in to the weekly Coronavirus briefing.
Sign up for our New Jersey newsletter
You must correct or enter the following before you can sign up:
Thank You!
Law360 (August 26, 2020, 9:55 PM EDT ) The U.S. Department of Justice on Wednesday opened inquiries into whether policymakers in several Democratic-led states inadvertently fueled COVID-19 deaths in nursing homes, a move swiftly denounced as politically motivated.
The U.S. Department of Justice said it is seeking information from the governors of New York, New Jersey, Michigan and Pennsylvania, all Democrats, about policies requiring "nursing homes to admit COVID-19 patients." (AP Photo/Manuel Balce Ceneta)
The letters came from Assistant Attorney General Eric Dreiband, a former Jones Day partner and political appointee of President Donald Trump who runs the DOJ's Civil Rights Division. Dreiband wrote that the department was evaluating whether to launch a formal investigation under the Civil Rights of Institutionalized Persons Act.
"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.
In a joint statement, Govs. Andrew Cuomo of New York and Gretchen Whitmer of Michigan deemed the inquiry "nothing more than a transparent politicization of the Department of Justice in the middle of the Republican National Convention."
Cuomo and Whitmer said that 14 states have issued similar guidance on nursing homes, but that assertion had few specifics and couldn't be verified. The governors also cited controversial new recommendations from the Centers for Disease Control and Prevention that say Americans without COVID-19 symptoms "do not need a test" and that Americans who've been in close contact with an infected person "do not necessarily need a test."
"It's no coincidence the moment the Trump administration is caught weakening the CDC's COVID-19 testing guidelines to artificially lower the number of positive cases, they launched this nakedly partisan deflection," Cuomo and Whitmer said.
A spokesperson for the DOJ had no immediate comment on allegations that the letters were politically motivated.
Dreiband's letters sought four categories of data from public nursing homes, including those owned or operated by the states. The data include numerical counts of coronavirus infections and fatalities among residents, employees and visitors at nursing homes; any state policies regarding nursing home admissions; and the number of patients with COVID-19 who were admitted to nursing homes.
In its announcement, the DOJ singled out a March 25 advisory from the New York State Department of Health that said "no resident shall be denied readmission or admission to [a nursing home] solely based on a confirmed or suspected diagnosis of COVID-19."
The advisory, which was later withdrawn, has been widely blamed for contributing to more than 6,500 deaths in Empire State nursing homes. State officials last month disputed that belief in a report that said nursing home staffers with asymptomatic infections were the main drivers of deaths, and that nursing home deaths began to decline even as admissions of COVID-19-positive individuals continued to rise.
The DOJ also observed in its announcement that New York and New Jersey have seen the nation's highest COVID-19 death rates as a percentage of population, and it contrasted the two states with lower death rates in Texas and Florida. The department did not say why it made comparisons to Texas and Florida, both of which have Republican governors.
According to the COVID Tracking Project, deaths in long-term care settings have constituted 26% of all coronavirus deaths in New York, 43% in New Jersey, 32% in Texas and 38% in Florida. New York's death toll, however, does not include nursing home residents who died after being transferred to a hospital.
Alyana Alfaro Post, a spokesperson for New Jersey Gov. Phil Murphy, said in a statement Wednesday that "the fact that this request from the Department of Justice, sent only to four states with Democratic governors, was announced by press release during the Republican National Convention speaks volumes about the nature of the review."
Representatives of Pennsylvania Gov. Tom Wolf had no immediate comment.
--Editing by Bruce Goldman.
For a reprint of this article, please contact reprints@law360.com.
