A number of state legislators and U.S. Senate Republicans are demanding answers to nursing home deaths after COVID-19 lockdowns and other preventative measures under blue state governors.
After the U.S. Department of Justice dropped investigations on the nursing home deaths in Michigan, New Jersey, New York, and Pennsylvania, Sen. Ted Cruz (R-TX) and fellow Senate Republicans sent a letter to Sen. Dick Durbin (D-IL), chairman of the Senate Judiciary Committee, demanding congressional oversight.
“The decision not to pursue potential civil rights violations in states with high profile Democrat governors raises serious concerns that the Biden administration is acting based on politics, not the law,” the senators wrote in the letter.
Meanwhile, investigations continue at the state level, with many Americans wondering how accountable governors can be once they leave office.
Holding Gov. Cuomo Accountable
As early as April 2020, public health organizations identified the elderly in group settings as particularly vulnerable to severe symptoms, hospitalization, and death from COVID-19.
But several state governors flouted the data and moved high numbers of infected patients into long-term facilities alongside uninfected residents. Nursing home deaths hit record highs, especially in New York state. Former New York Gov. Andrew Cuomo was caught underreporting nursing home deaths by at least 56 percent.
Cuomo resigned in July over sexual harassment charges, which removes options in seeking justice, says David Applegate, an attorney and policy advisor to The Heartland Institute, which co-publishes Health Care News.
“The two main remedies against an out-of-control executive are impeachment and criminal liability,” Applegate said. “The constitutionality of impeaching an executive already out of office is doubtful at best. Obviously, it won’t happen here. Anyone in the country can be prosecuted for criminal activities, but common-law crimes don’t exist in this country, so New York would need to find a statue that fits.”
Questioning Qualified Immunity
In New York, civil liability raises an interesting question. Government officials generally carry ‘qualified immunity’ for decisions they make as public officials.
“To overcome the qualified immunity bar, a plaintiff would have to show that Cuomo’s actions violated a clearly established legal or constitutional right,” Applegate said. “That could be either a state or a federal constitutional right. Anyone thinking of suing should take a careful look at the fine print of the New York State constitution.”
Obtaining documents is critical, but Freedom of Information Act requests can be an obstacle.
“Such acts, in my view, simply enable government bureaucrats to hide behind paperwork requirements to delay, redact, and refuse to produce documents,” Applegate said.
Holding Whitmer Accountable
Michigan Gov. Gretchen Whitmer’s first term in office ends in 2022. She is seeking a second term but faces headwinds after state residents successfully blocked executive efforts to lock down the state again.
Whitmer offered nursing homes a $5,000 incentive for each COVID-19 patient admitted. In the summer of 2020, Michigan representatives and senators passed a Senate Bill to halt the practice, but Whitmer vetoed it. She later sought to silence her Department of Health and Human Services director on the subject when he resigned.
“It seemed that Gov. Whitmer was following the lead of Gov. Cuomo on a number of fronts,” said Rep. Steve Johnson (R-District 72). “He was being hailed by Democrats across the nation. We saw what was going on and tried to pass legislation [to protect the elderly], but she vetoed that.”
Protecting Long-Term Care Facilities
In Michigan, nursing homes, homes for the elderly, and adult foster care facilities all fall under the umbrella of long-term care facilities.
“In general, the layman would call each of these a nursing home,” Johnson said. “The state was being very careful in discussing nursing homes and leaving out nearly 75 percent of long-term care facilities.”
When reports of undercounting deaths in New York surfaced, Michigan legislators questioned the Michigan Department of Health and requested a probe by the state’s auditor general. The initial report should be completed later this month or in early October.
“The auditor general provides non-partisan support, they are very thorough, they are very good,” Johnson said. “We are hoping they can just give us an accurate death toll.”
Holding Wolf Accountable
Pennsylvania Gov. Tom Wolf, whose second and final term ends in 2023, ordered nursing homes to accept patients and withheld documents related to his decision-making, which has resulted in a lawsuit settlement with the state House of Representatives.
“It (is) a requirement that the governor turns over documents related to health decisions he made county by county,” said Pennsylvania Rep. Frank Ryan (R-Lebanon). “He claimed he did not have to provide them but Act 77 of 2020, the right to know revisions law, says he has to turn them over. He was going to go to court to challenge it, even though he had an adverse decision from an administrative court. He finally acquiesced which means he has to turn over the documents.”
Ryan filed a complaint with the U.S. Department of Justice in 2020 and turned over the data he gathered.
“We also found some county coroners indicating the governor’s Department of Health altered health certificates of people who died during COVID-19: three cases in our county and about 120 people [that we know of],” Ryan said.
Expanding, Conflicting Interests
Ryan says the legislature’s interest is expanding beyond nursing home deaths.
“We’re finding the Department of Health is pressuring the medical community to not accurately report what is going on with the COVID-19 vaccine,” Ryan said.
At a recent hospital health conference, Ryan said administrators reported no adverse reactions from the COVID-19 vaccine. Ryan said he served on a hospital board of directors for 28 years and found this hard to believe.
Ashley Bateman (bateman.ae@googlemail.com) writes from Virginia.
