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A Gross Miscarriage of Justice

Office of the NY Governor via AP

If a state government ordered nursing homes — which house the population most vulnerable to COVID-19 — to accept patients who had tested positive for a deadly virus in the middle of a pandemic, should the feds let that state government off the hook? It seems the Department of Justice (DOJ) under President Joe Biden says, “Yes.”

As PJ Media’s Kevin Downey Jr. noted on Friday, a DOJ official informed Democratic Michigan Gov. Gretchen Whitmer that it would drop its investigation into COVID-19 nursing home policies in her state. Rep. Steve Scalise (R-La.) received a letter explaining that the DOJ would also drop its investigations into the nursing home tragedies in New York, Pennsylvania, and New Jersey.

“We have reviewed the information you provided along with additional information available to the Department. Based on that review, we have decided not to open a CRIPA investigation of any public nursing facility within Michigan at this time,” the DOJ informed Whitmer. CRIPA stands for the Civil Rights of Institutionalized Persons Act.

Under President Donald Trump last year, the DOJ formally requested data from Michigan, New Jersey, New York, and Pennsylvania pursuant to possible CRIPA charges.

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The Trump DOJ cited New York Gov. Andrew Cuomo’s order on March 25 that “no resident shall be denied re-admission or admission to [a nursing home] solely based on a confirmed or suspected diagnosis of COVID-19. [Nursing homes] are prohibited from requiring a hospitalized resident who is determined medically stable to be tested for COVID-19 prior to admission or readmission.”

According to a study of over 1,000 patients admitted to the hospital with the coronavirus in New York City, over 90 percent contracted the virus from close contact with an infected person, including sheltering at home or in contained living situations like in nursing homes and jails.

The DOJ requested data from Michigan, New York, New Jersey, and Pennsylvania, each led by a Democrat governor. In June, House Republicans on the Select Committee on the Coronavirus Crisis sent five letters to the governors of those states and to California Gov. Gavin Newsom, also demanding data on the link between nursing home policy and coronavirus cases. Each of the other states issued an order similar to New York’s (California’s came on March 30, Michigan’s on April 15, New Jersey’s on March 31, and Pennsylvania’s on March 18).

The Democrat governors issued these orders in contrast to the Centers for Medicare and Medicaid Services (CMS) guidance that explicitly does “not direct any nursing home to accept a COVID-19 positive patient, if they are unable to do so safely.” Indeed, the guidance urges that “nursing homes should admit any individual that they would normally admit to their facility, including individuals from hospitals where a case of COVID-19 was/is present” only if the nursing home can follow” CDC guidance.

CMS Administrator Seema Verma also warned, “Under no circumstances should a hospital discharge a patient to a nursing home that is not prepared to take care of those patients’ needs.”

According to House Republicans in June, New York had 6,360 nursing home coronavirus deaths, Michigan had 2,297, California had 2,560, Pennsylvania had 4,268, and New Jersey had 6,432. Each of these numbers represented between 25 percent and 68 percent of the state’s coronavirus deaths and a sizable chunk of each state’s nursing home population.

In January, New York Attorney General Letitia James released a damning report, showing that the state government undercounted COVID-19 deaths connected to nursing homes.

Janice Dean, who lost her in-laws in nursing homes from COVID-19, said the Biden DOJ’s decision to drop the investigation hit her like a ton of bricks.

“For months we were waiting for answers. As we waited, several sources were telling me the investigation was being swept under the rug,” Dean wrote in a Fox News op-ed. “Not only did Gov. Andrew Cuomo and his administration fail to provide any information to the Justice Department, lawmakers or countless reporters and grieving families who have asked it be disclosed, he blamed others for his disastrous mandate and instead says all of it is politically motivated.”

“But I will forever be grateful to former Attorney General William Barr and the Trump administration for launching the investigation because this was the springboard to the potentially more politically damaging investigation here in New York by the FBI and the Brooklyn U.S. Attorney’s Office,” Dean added.

“People have asked me if, after last week’s terrible news from the DOJ, the other investigations will hold up. My answer is I have to believe our governor will be held accountable in the end,” she confided.

Dean said that AG James will likely release another unfavorable report in the next few weeks. “And if Cuomo continues to hang around until the election next November, there’s always the hope that he will be voted out.”

Still, the DOJ should investigate the nursing home policies.

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In Pennsylvania, where (male-to-female transgender) Rachel Levine served as health secretary, more than half (10,022) of the state’s 19,390 COVID-19 deaths can be traced back to long-term care facilities. In May 2020, Levine removed his mother from a personal care home as COVID-19 spread in such elderly facilities. Levine insisted that his mother was in a personal care home, not a nursing home, but COVID-19 has spread in personal care homes similar to the way it spread in nursing homes.

Bereaved Americans like Janice Dean are right to demand answers, and the DOJ’s decision to drop the investigations is a gross miscarriage of justice.