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DOJ Demands Nursing Home Death Data from Gov. Cuomo and Three Other Democrats, Threatens Civil Action

WASHINGTON, DC - JULY 28: U.S. Attorney General William Barr testifies before the House Judiciary Committee in the Congressional Auditorium at the U.S. Capitol Visitors Center July 28, 2020 in Washington, DC. In his first congressional testimony in more than a year, Barr faced questions from the committee about his deployment of federal law enforcement agents to Portland, Oregon, and other cities in response to Black Lives Matter protests; his role in using federal agents to violently clear protesters from Lafayette Square near the White House last month before a photo opportunity for President Donald Trump in front of a church; his intervention in court cases involving Trump's allies Roger Stone and Michael Flynn; and other issues.

The Civil Rights Division of the U.S. Department of Justice announced on Wednesday that it sent letters to four Democratic governors, demanding data on coronavirus pandemic-related executive orders which “may have resulted in the deaths of thousands of elderly nursing home residents.”

New York Gov. Andrew Cuomo, New Jersey Gov. Phil Murphy, Michigan Gov. Gretchen Whitmer, and Pennsylvania Gov. Tom Wolf were each on the receiving end of letters from the DOJ.

The letter to Cuomo set the stage:

I write to request information regarding COVID-19 and nursing homes run by, or for, the State of New York, as defined in more detail hereafter. The Civil Rights Division of the Department of Justice enforces the Civil Rights of Institutionalized Persons Act (CRIPA). See 42 U.S.C. § 1997. The Division is evaluating whether to open a CRIPA investigation of institutions “providing skilled nursing, intermediate or long-term care, or custodial or residential care” that are “owned, operated, or managed by, or provide[] services on behalf of [New York] or [a] political subdivision of [New York]” (“Public Nursing Homes”).

Cuomo has admitted that New York made “a lot” of unspecified “mistakes” in response to coronavirus pandemic. Both he and Gov. Murphy have been widely criticized for policies that outlined the transfer of patients from hospitals back to nursing homes.

“No resident shall be denied re-admission or admission to the NH solely based on a confirmed or suspected diagnosis of COVID-19,” a New York State advisory from March reads (it was underlined).

The relevant language of New Jersey’s March advisory was also underlined:

No patient/resident shall be denied re-admission or admission to the post-acute care setting solely based on a confirmed diagnosis of COVID-19. Persons under investigation for COVID-19 who have undergone testing in the hospital shall not be discharged until results are available. Post-acute care facilities are prohibited from requiring a hospitalized patient/resident who is determined medically stable to be tested for COVID-19 prior to admission or readmission.

The New York Times has reported that “More Than 40% of U.S. Coronavirus Deaths Are Linked to Nursing Homes”—where Americans who are generally the most susceptible to COVID-19 reside. The DOJ cited data from the Centers for Disease Control that specifically contrasted the death rates in New York and New Jersey—the “highest” and “second highest” in the U.S.—with the death rates in the Republican-governed states of Texas and Florida:

According to the Centers for Disease Control, New York has the highest number of COVID-19 deaths in the United States, with 32,592 victims, many of them elderly. New York’s death rate by population is the second highest in the country with 1,680 deaths per million people. New Jersey’s death rate by population is 1,733 deaths per million people – the highest in the nation. In contrast, Texas’s death rate by population is 380 deaths per million people; and Texas has just over 11,000 deaths, though its population is 50 percent larger than New York and has many more recorded cases of COVID-19 – 577,537 cases in Texas versus 430,885 cases in New York. Florida’s COVID-19 death rate is 480 deaths per million; with total deaths of 10,325 and a population slightly larger than New York.

The DOJ now seeks to obtain data, it says, in order to determine whether it should initiate investigations that may lead to civil actions under the Civil Rights of Institutionalized Persons Act (CRIPA).

The Department of Justice notes that the initiation of such an action is ultimately up to Attorney General Bill Barr [emphases ours]:

(a) Discretionary authority of Attorney General;  preconditions

Whenever the Attorney General has reasonable cause to believe that any State or political subdivision of a State, official, employee, or agent thereof, or other person acting on behalf of a State or political subdivision of a State is subjecting persons residing in or confined to an institution, as defined in section 1997 of this title, to egregious or flagrant conditions which deprive such persons of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States causing such persons to suffer grievous harm, and that such deprivation is pursuant to a pattern or practice of resistance to the full enjoyment of such rights, privileges, or immunities, the Attorney General, for or in the name of the United States, may institute a civil action in any appropriate United States district court against such party for such equitable relief as may be appropriate to insure the minimum corrective measures necessary to insure the full enjoyment of such rights, privileges, or immunities, except that such equitable relief shall be available under this subchapter to persons residing in or confined to an institution as defined in section 1997(1)(B)(ii) of this title only insofar as such persons are subjected to conditions which deprive them of rights, privileges, or immunities secured or protected by the Constitution of the United States.

(b) Discretionary award of attorney fees

In any action commenced under this section, the court may allow the prevailing party, other than the United States, a reasonable attorney’s fee against the United States as part of the costs.

(c) Attorney General to personally sign complaint

The Attorney General shall personally sign any complaint filed pursuant to this section.

Assistant Attorney General for Civil Rights Division Eric Dreiband said in a statement that the purpose of the DOJ’s letters to the aforementioned governors is to ensure that the “rights of some of society’s most vulnerable members, including elderly nursing home residents,” are protected.

“We must ensure they are adequately cared for with dignity and respect and not unnecessarily put at risk,” he added.

Cuomo and Whitmer released a joint statement in response.

“This is nothing more than a transparent politicization of the Department of Justice in the middle of the Republican National Convention. 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,” they said.

Murphy’s press secretary similarly focused on the timing of the DOJ request.

[Image via Chip Somodevilla/Getty Images]

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Matt Naham is managing editor of Law&Crime. He formerly worked as news editor and weekend editor at Rare.