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In February, the Mackinac Center Legal Foundation brought a Freedom of Information Act lawsuit against the Michigan Department of Health and Human Services on behalf of Pulitzer-prize winning journalist Charlie LeDuff. As we wrote in April, LeDuff’s request sought information about COVID-19 deaths in Michigan’s long-term care facilities to determine whether Michigan had been undercounting deaths there. That case has now been settled, but the information the health department provided has only raised further questions about the state’s pandemic response.
Specifically, the records LeDuff obtained revealed that the state is not reviewing COVID-19 deaths discovered through vital records searches to determine if the deceased caught COVID-19 at a long-term care facility. It also certified that it could not determine when deaths were added to its official death toll.
While these findings were troubling, a follow-up investigation by LeDuff and the Mackinac Center revealed even more disturbing news: The state health department does not cross-reference deaths located through vital records searches to determine whether those deaths should be classified as long-term care deaths.
LeDuff published his findings in Deadline Detroit on May 25, 2021. In response, the Michigan House Oversight Committee requested that both the Mackinac Center and the health department testify. At the June 3 hearing, the department’s director, Elizabeth Hertel, confirmed that the state does not include deaths located in vital records searches when compiling data on deaths in long-term care settings. Instead, Hertel explained, the department tracks these deaths through direct reports from long-term care facilities.
The problems with this approach are multifaceted. Although some facilities face significant penalties for falsely reporting death data, others do not, despite having a strong incentive to minimize reported deaths. More disturbing, however, is the fact that the department does not track any deaths in facilities licensed to serve 12 or fewer individuals. These smaller facilities, which represent 76% of all long-term care facilities in Michigan, have no obligation to report deaths of their residents to the state. As many as 22,092 people could be living at these facilities.
In her testimony, Hertel admitted the reported number of long-term care deaths in Michigan “could be low.” Realistically, the state is almost certainly undercounting, given the lack of reporting obligations for small facilities. The question, then, is not whether the state is undercounting, but by how much.
The solution is straightforward. All that is required is for the department to compare a list of all COVID-19 deaths in Michigan against a list containing the addresses of all long-term care facilities in Michigan (including those licensed to serve 12 or fewer residents). Although this may not capture all long-term care deaths in Michigan, it would certainly establish a more accurate number than what is currently being reported.
The state has performed this review in this past, but stopped doing so because, by the department’s own admission, it took too much staff time. But when the state did look, it found that 44% of all the vital records deaths it reviewed could be attributed to long-term care facilities, even though the media was only reporting a 35% rate at that time. And that’s without counting deaths at facilities with fewer than 12 residents.
LeDuff would not have been able to learn this information were it not for the Freedom of Information Act. And while it is unfortunate that it took a lawsuit to obtain a meaningful response from the state, the Mackinac Center is proud to have helped LeDuff uncover these facts. This case is a stark example of how free, full, and fast access to public records is essential if we are to hold our elected officials accountable for their policy decisions. We remain committed to continuing to enforce FOIA requirements against public bodies throughout Michigan and to assist the public in accessing their records.
