DHHS did not misrepresent COVID-19 nursing home deaths, AG’s office says

A January report from the state Auditor General’s office did not find that the Michigan Department of Health and Human Services (DHHS) intentionally underreported or misrepresented the number of COVID-19 deaths at nursing homes and other long-term care facilities, despite some Republican lawmakers’ comments otherwise, according to an analysis released last week by state Attorney General Dana Nessel’s office.

That the department did not intentionally underreport or misrepresent nursing home deaths is a conclusion Auditor General Doug Ringler emphasized during a Jan. 20 legislative hearing led by Republican lawmakers.

Additionally, the attorney general’s analysis of the auditor general’s report said further investigation into a discrepancy between COVID-19 long-term care facility deaths reported by the Office of the Auditor General (OAG) and the DHHS is not warranted.

According to the OAG report, there were 8,061 COVID-19 deaths at long-term care facilities in Michigan from the time the pandemic began in March 2020 and July 2, 2021. DHHS reported 5,675 deaths during the same time period. Republicans have used the auditor general’s report as a battle cry against the governor in an election year, but the difference in the numbers is not due to the Whitmer administration covering up deaths but rather because the auditor general and the DHHS used different long-term care facilities in their data — something both the auditor general and Nessel’s office emphasized. 

In other words: had the OAG used the same facilities that the DHHS included in its count, the number would have likely been far closer if not the same. 

Conducted by the Health, Education and Family Services Division within the attorney general’s office, the attorney general’s analysis notes “the characterization by legislators and various media outlets suggesting that MDHHS intentionally underreported and misrepresented the number of COVID-19 deaths at [long-term care] facilities is not supported by the OAG’s report.” 

“OAG’s report acknowledges that, for much of the discrepancy between the MDHHS’s official number of [long-term care] COVID-19 deaths and OAG’s separate count, the discrepancy is based on OAG’s inclusion of [long-term care] facilities that are not included in MDHHS’s count,” the memo from the attorney general’s office said. “In addition, OAG’s report does not suggest any malintent by MDHHS.”

The attorney general’s office said the discrepancy between the numbers from the DHHS and the auditor general were “simply distinct methods of trying to reach the same number, albeit of a different set of facilities.” 

“Thus, comparing the counts is largely meaningless,” the memo from Nessel’s office said. “Moreover, neither count was generated through malice or ill intent. And, more importantly, neither MDHHS nor OAG suggests that any law has been broken.”

The DHHS’ number was based on self-reported figures from long-term care facilities required to report COVID-19 deaths to the state. Those facilities included nursing homes or skilled nursing facilities, homes for the aged, and adult foster care facilities with 13 or more beds. The auditor general’s report — which was conducted after Rep. Steven Johnson (R-Wayland) in June 2021 asked Ringler to do so — included deaths at long-term care facilities that are not required to self-report COVID-19 deaths, including adult foster care facilities licensed for 12 or fewer beds and hospice-only skilled nursing facilities.

During a Jan. 20 hearing on the auditor general’s report, Ringler — who was appointed to his position by the Republican-led state legislature in 2014 — specifically said the report was not evidence that the Whitmer administration covered up long-term care facility deaths. 

Instead, Ringler, like Nessel’s office, said the discrepancy between the auditor general’s numbers and the DHHS figures were rooted in the two organizations using different facilities. Ringler noted his data incorporated numbers from facilities requested by Johnson.

“For the long-term care facility-related deaths … we knew the department wasn’t tracking all the ones that we reflected in our letter, so we didn’t feel the word ‘underreport’ was fair,” Ringler said during the Jan. 20 hearing, referring to Republicans’ claims that the Whitmer administration has intentionally mislead the public on the number of nursing home deaths during the pandemic.

The fight to save lives at Michigan’s nursing homes

Not long after the pandemic began in March 2020 and nursing homes across the country faced soaring numbers of cases and deaths, Whitmer issued an executive order aimed at protecting seniors and their caretakers throughout Michigan.

The April 2020 order, No. 2020-50, included a long list of requirements for long-term care facilities — which the order defined as nursing homes, homes for the aged, adult foster care facilities and assisted living facilities. It mandated the facilities not evict a resident for nonpayment, canceled communal dining, and created regional “hubs” that would accept COVID-19 patients from long-term care locations that could not properly care for them due to issues like a lack of personal protective equipment (PPE), among other initiatives.

As part of the executive order, Whitmer said any long-term care facility that had a dedicated COVID-19 unit and an adequate amount of PPE for employees working with pandemic patients must “admit anyone that it would normally admit as a resident, regardless of whether the individual has recently been discharged from a hospital treating COVID-19 patients.”

Nessel nixes ‘partisan’ federal request to probe Whitmer on nursing homes

It has been this part of the executive order that ended up being lambasted and often distorted or outright falsified by Republican lawmakers — who have fought Whitmer tooth-and-nail on nearly every one of her pandemic mandates, ultimately rescinded the governor’s power to issue executive orders, and have railed against the COVID-19 mask and vaccine mandates that health experts and researchers have repeatedly said prevent deaths and place society closer to the pandemic’s end. Not long after the order was first issued, Republicans accused Whitmer and her administration of forcing nursing homes to accept sick COVID-19 patients and causing unnecessary deaths. 

These accusations — which Whitmer, state health officials and nursing home representatives have said are untrue — have dominated GOP-led state Senate Oversight Committee and the Joint Select Committee on the COVID-19 Pandemic hearings on the state’s nursing home policies and Republicans’ social media posts and media op-eds. 

Fueled by these accusations, federal lawmakers from Michigan asked Nessel to investigate the executive order’s impact [which she declined to do, calling the request “partisan”], and the Trump administration pushed for a federal investigation into Whitmer and other Democratic governors who they accused of covering up nursing home deaths. (Ultimately, the federal government opted not to investigate nursing home deaths in Michigan.)

“Instead of protecting our most at-risk seniors from the coronavirus, Gov. Whitmer issued an executive order in April forcing nursing facilities with less than 80% capacity to create space to accept patients with COVID-19, regardless of their ability to care for them and isolate the spread of the virus,” state Sen. Dale Zorn (R-Ida), who wore a Confederate flag-patterned face mask at the beginning of the pandemic, wrote in a September 2021 op-ed.

Zorn’s argument, which has been echoed by many of his Republican colleagues, is untrue, as was spelled out in the executive order. Too, the governor, health officials — including the head of DHHS, and nursing home representatives themselves have said long-term care facilities were never forced to take a COVID-19 patient for whom they could not provide care.

“It’s a Republican talking point” that nursing homes were forced to take COVID-19 patients who had been discharged from a hospital, Whitmer said on C-SPAN in March 2021. 

“If nursing homes were going to take patients back after they’d been hospitalized, we had very strict protocols about how they would stay safe, and we made sure they were stocked with PPE,” the governor continued. “So there was never a mandate to receive COVID patients, despite what I think Republican communications have been.”

Ultimately, precautions taken by the Whitmer administration led to Michigan having fewer pandemic-related deaths in nursing homes compared to the national average, according to a report from the Center for Health and Research Transformation, an independent nonprofit health policy center at the University of Michigan.