In February, media reports revealed that New York Gov. Andrew Cuomo, fearing a political backlash from his handling of the pandemic, lied to the public about the number of COVID-related deaths in his state’s nursing homes. When the truth came out, the number of patients forced into nursing homes by Gov. Cuomo’s policies was over 40% higher than initially reported, and the number of resulting deaths was more than 70% higher. Gov. Cuomo, unfortunately, is not the only governor to have required nursing homes to accept COVID patients.

Michigan Gov. Gretchen Whitmer, despite protestations that she never forced nursing homes to accept COVID-19 patients, had a similar policy. Namely, in executive order 2020-50 (which was later overturned as unconstitutional due to a case filed by the Mackinac Center Legal Foundation), the governor required all nursing homes under 80% capacity to create a dedicated COVID unit. This order also forbade nursing homes from refusing to readmit residents who had been hospitalized for COVID-19 but were “medically stable.” In other words, residents of long-term care facilities who did not need further hospitalization were sent back to a facility housing the people with the highest risk of dying from COVID.

In January, Pulitzer Prize-winning journalist Charlie LeDuff noticed that a large increase in Michigan’s COVID death total came from recent official reviews of death certificates. Curious, LeDuff wanted to know why these deaths had not been previously reported and whether they included deaths in long-term care facilities. So, he sent a Freedom of Information Act request to the Michigan Department of Health and Human Services. After some back-and-forth with the department, LeDuff clarified that he sought only four pieces of data for each recorded death:

1. Age of the deceased
2. Date of death
3. Date(s) it was added to the state tally
4. Whether any of those deaths were the result of contracting COVID at a long-term care facility.

Perhaps unsurprisingly, the department denied his request, saying it needed to protect the deceaseds’ privacy and comply with federal privacy law. In addition, it said, vital records and the information they contain are exempt from disclosure. LeDuff then contacted the Mackinac Center Legal Foundation, and we agreed to represent him in an attempt to obtain the information.

Michigan’s FOIA law is filled with exemptions and loopholes, and obtaining records is far more difficult than it would appear. Nevertheless, we contend that the state has misapplied the cited exemptions, which, if used as the department suggests, would keep the public from receiving even the sparse information the state is already publishing.

Our suit isn’t over, and its importance cannot be overstated. Based on the state’s own limited reporting, one in three COVID deaths in Michigan can be linked to a long-term care facility. If our lawsuit reveals that Gov. Whitmer’s policies had the same consequences as Gov. Cuomo’s, then as many as 56% of Michigan’s COVID deaths occurred in nursing homes. Were this to be true, any practice that even encouraged nursing homes to accept COVID patients would be an unconscionable act of policy malpractice.

We do not yet have the information LeDuff is seeking, so we do not know with certainty what effect Gov. Whitmer’s policy had on nursing homes. For the sake of our fellow citizens, we at the Mackinac Center hope that her policies protected our most vulnerable population. But, if we learn that they had the opposite effect, we will share that information with the public to ensure that state and local officials are held accountable for the consequences of poor public policy.

We appreciate your continued support, and if you are interested in learning more about our lawsuit or want to be up to date on the latest developments, please visit our website at https://www.mackinac.org/LeDuff.