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Long Term Care Facilities Should Prepare for County Investigations Into COVID Deaths

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Long Term Care Facilities Should Prepare for County Investigations Into COVID Deaths

Earlier this month, Peter Lucido, the Macomb County Prosecutor, who was also a former Republican State Senator and State Senate Majority Whip, announced a plan to investigate COVID-19 deaths in Macomb County nursing homes to determine whether Executive Order 2020-50, which was issued in April 2020 by Governor Gretchen Whitmer, and is no longer in effect, was responsible for those deaths. Prosecutor Lucido made a form available to families of former nursing home residents to collect information from the facility and then share with Macomb County law enforcement officials. 

In support of Lucido’s investigation, Republicans in both houses of Michigan’s legislature have introduced bills to provide funds for county prosecutors for further investigation. Specifically,  Senate Bill 27, which the Senate already passed on a party line vote, appropriates $1.25 million for grants of up to $250,000 to prosecutors.  House Bill 4589, which was introduced on March 25, 2021, appropriates $5 million to the “Prosecuting Attorneys Coordinating Council” for similar purposes. While it is unlikely either bill will become law, as they would require Governor Whitmer’s approval, Lucido’s efforts could have significant ramifications for the industry and, given the current political environment, are likely to spur “copy-cat” initiatives by prosecutors around the state and perhaps the nation.   

Requests for records and visits by law enforcement are challenging due to complex and sometimes conflicting state and federal laws, including HIPAA and related state privacy rules. Moreover, deciding the extent, if at all, to provide information about a deceased former resident presents political and legal dilemmas for facilities if the law enforcement investigation is addressed to the Executive Order. Accordingly, operators should understand their rights and obligations when responding to law enforcement visits and requests for records.   

To prepare for a potential law enforcement visit or request for records, long term care operators should  work with their legal counsel to: 

  • Review and update existing policies and procedures on how to respond to court orders, subpoenas, and other governmental requests for records;
  • Ensure the operator has plans and procedures for how to respond when an investigator visits the facility, requests documents, or asks to interview staff;
  • Identify a point person or persons who is responsible when law enforcement arrives; and
  • Train staff on each of these procedures so they are ready to respond.

Long term care operators should also consider reviewing with legal counsel their facility’s response to the COVID-19 pandemic, to evaluate procedures, and the need for any additional steps the operator can take now to mitigate the liability if the facility becomes subject to an investigation.

Macomb County Prosecutor Lucido’s efforts are likely to stoke similar prosecutorial initiatives in the region and across the country. Three well-known lawyers associated with the University of Detroit Mercy, University of Pennsylvania Law School, and University of Minnesota Law School filed a complaint with the Michigan Attorney Grievance Commission arguing that prosecutor Lucido’s investigation is politically motivated. The complaint alleges that Lucido’s proposed investigations stem from his political initiatives during his tenure in the Michigan Senate, rather than a proper exercise of his prosecutorial duties—calling into question whether Lucido would have a conflict of interest should he be involved in any related prosecutions.

If you have any questions about the information in this post or other governmental investigations involving health care providers, please contact Gerald Aben, Kathleen Reed, Jonathan Feld, or your current Dykema relationship attorney for guidance. For other questions related to the long term care industry, Dykema’s Health Care Practice Group Long Term Care Team  is available to assist and can be reached at longtermcare@dykema.com.