The U.S. Justice Department on Wednesday ordered governors in four Democrat-controlled states — including Pennsylvania and New Jersey — to hand over COVID-19 data as it weighs whether to pursue civil rights investigations into the thousands of nursing home deaths.
In a news release, officials cited policies in each of the states, which also included New York and Michigan, urging nursing homes to accept medically stable patients, even if they had a confirmed or suspected coronavirus diagnosis.
The department said in a letter to each governor that it is seeking to determine if that guidance caused the virus to spread more rapidly in long-term care facilities, where the toll of the pandemic hit hardest during its early days in the United States.
“We have not reached any conclusions about this matter,” read the letter, signed by Eric Dreiband, assistant attorney general for the Justice Department’s Civil Division.
The request for data — including the number of coronavirus-positive patients admitted to publicly run nursing homes in each state and advisories and orders issued by the governors regarding the admission of patients during the pandemic — mirrored similar inquiries sent by Republicans in Congress and in statehouses in Pennsylvania and New Jersey in July.
The issue has been a top concern for months in GOP circles and among nursing home operators in those states who say they felt compelled to take patients they couldn’t adequately care for without also putting their healthy patients at risk.
Both Gov. Tom Wolf of Pennsylvania and Gov. Phil Murphy of New Jersey have defended the guidance they issued to nursing homes during the early days of the pandemic, saying it was designed to free up hospital beds in advance of an expected surge of coronavirus cases.
A spokesperson for the Pennsylvania Department of Health said Wednesday it was “looking forward to working with the DOJ to provide whatever information is needed to fulfill the request.”
Alyana Alfaro Post, spokesperson for Murphy, struck a more combative tone.
“The fact that this request … sent only to four states with Democratic governors was announced by news release during the Republican National Convention speaks volumes about the nature of the review,” she said in a statement.
Still, she said New Jersey would respond to the Justice Department’s request for information.
Read the letter sent to Gov. Wolf:
Across the country, the coronavirus has taken its heaviest toll in long-term care facilities, where patients are more likely to have underlying health conditions making them more vulnerable to becoming seriously ill or dying.
The combination of such patients living in close quarters and nursing homes struggling to control the spread within their facilities has contributed to more than 5,000 coronavirus-related deaths in Pennsylvania this year — nearly two-thirds of the state’s total deaths.
In New Jersey, just under half of the state’s nearly 16,000 deaths have been linked to nursing homes.
The guidances Wolf and Murphy issued in March along with similar advisories by New York Gov. Andrew Cuomo and Michigan Gov. Gretchen Whitmer varied in their requirements and whether or not they were mandatory or simply advisory.
New York, for example, ordered that “no resident shall be denied readmission or admission to [a nursing home] solely based on a confirmed or suspected diagnosis of COVID-19.”
Cuomo later said that operators always had the authority to turn away patients they felt they could not care for safely and revised his order to prohibit hospitals from discharging patients to nursing homes until they test negative for the virus.
In Pennsylvania, however, guidelines issued that same month recommended that nursing homes readmit patients who “have had the COVID-19 virus.”
Previous reporting by Spotlight PA has detailed flaws in the state’s nursing home response, including a decision not to quickly carry out a plan to send strike teams into struggling facilities.
But Pennsylvania Health Secretary Rachel Levine has said there is no evidence that the requirements surrounding the admission of COVID-positive patients contributed to any deaths.
Instead, she has pointed to epidemiologists who have linked the prevalence of the coronavirus in any particular long-term care facility directly to its reach in surrounding communities.
In its letter Wednesday, the Justice Department said it was singling out Pennsylvania, New Jersey, New York, and Michigan because all four states had a higher per-capita death rate from the coronavirus than states like Texas and Florida, which have seen higher overall case numbers.
But according to a New York Times analysis, Pennsylvania ranks fifth in the nation, behind New Hampshire, Rhode Island, Connecticut, and Minnesota, in terms of the share of coronavirus deaths linked to long-term care facilities.
New Jersey ranks 26th with 43% of COVID deaths linked to nursing homes, while Florida falls only one percentage point below that and ranks 29th on the list. Texas is 38th, with just under a third of deaths stemming from long-term care facilities, according to the Times.
The surging overall case totals in Texas and Florida also have largely occurred since June — months after Pennsylvania, New Jersey, New York, and Michigan were hit hardest by the pandemic at a time when its transmission was less understood and when widespread testing was less available.
The Justice Department said it would pursue any investigation that develops under a federal law that protects the rights of people in state-run nursing homes. There are 27 such state- or county-run facilities in Pennsylvania and 11 in New Jersey.
“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, the assistant attorney general, said in a statement. “We must ensure they are adequately cared for with dignity and respect and not unnecessarily put at risk.”