Theis spearheads Oversight subpoena of DHHS

Department’s months-long stonewalling leads to legal action

LANSING, Mich. — After multiple requests for information relating to the state Department of Health and Human Services handling of COVID-19 in nursing homes and other long-term facilities, the Senate Oversight Committee on Thursday moved to subpoena the department, said Sen. Lana Theis.

“The Whitmer administration has throughout its handling of the COVID-19 pandemic proclaimed and defended its reliance on science and data as driving forces for decisions made in response to the coronavirus,” said Theis, R-Brighton. “Yet after multiple requests to DHHS over several months for information about those decisions and what informed them, the department has been less than forthcoming, to say the least. It is unfortunate that a subpoena is necessary for the people of Michigan to obtain information about a government it funds — and that supposedly works for them.”

The Senate Oversight Committee voted to authorize the committee chair to issue, and have served, the subpoena to DHHS related to its COVID-19 response, including those involving long-term, congregate care facilities.

Under the subpoena, the department is ordered to produce the requested documents and communication no later than 5 p.m. on Thursday, May 27. A failure to comply with the subpoena may be punished as contempt of the Legislature, in addition to any other remedy available by law.

In part, the subpoena orders DHHS to turn over the following:

  • All documents and communications related to the U.S. Department of Justice request for information to Gov. Gretchen Whitmer dated Aug. 26, 2020, including, without limitation, all documents and communications provided to the Executive Office of the Governor related to such a request;
  • All written communications to or from former Director Robert Gordon, current Director Elizabeth Hertel, department employees Sarah Esty, Jonathan Warsh, and Dr. Joneigh S. Khaldun between Feb. 1, 2020, and March 2, 2021, related to skilled nursing facilities, homes for the aged, adult foster care facilities, assistant living facilities, residential care facilities, and/or congregate care facilities; and
  • All communications from or to former Director Robert Gordon, current Director Elizabeth Hertel, department employees Sarah Esty, Jonathan Warsh, and/or Dr. Joneigh S. Khaldun, related to Gov. Whitmer’s executive orders related to temporary restrictions on entry into and enhanced protections for residents of health care facilities, residential care facilities, congregate care facilities, and juvenile justice facilities.

For the complete list of requested documents, please see the attached copy of the subpoena.

The subpoena comes after numerous requests from lawmakers and the committee to the department have gone unanswered.

In February, Theis and colleagues submitted a formal request that Attorney General Dana Nessel and acting U.S. Attorney General Monty Wilkinson conduct full state and federal investigations into the Whitmer administration’s handling of the coronavirus pandemic and its relation to its COVID-19 nursing home policies. The requests were denied.

In March, the committee issued a formal documents request to DHHS, seeking intradepartmental communications between department officials related to the Whitmer administration’s policies that placed people infected with COVID-19 into the state’s nursing homes, adult foster care facilities and long-term care facilities. After phone calls and a structured timeline of deliverables, the department has yet to fulfill the request.

In April, the committee sent a follow-up letter to the department relating to specifics of the aforementioned DOJ request; held a conference call with DHHS staff regarding requested documents to be received by April 19; and sent another letter to the department about the since-passed deadline. The department did not produce the material and no follow up was provided.

To date, no documents have been produced in response to either of the committee’s March 3 or April 8 document requests.

“Over a third of people who died from COVID-19 in our state were long-term care facility residents and workers,” Theis said. “The tragic loss of our fellow Michiganders could have been prevented. Their grieving families, and the people of this state, demand answers. We deserve to know what decisions led the Whitmer administration to implement, maintain and publicly defend its tragic policy.

“It is unfortunate that we have come to the point of needing a subpoena. But for the sake of the families who lost loved ones to the virus in these facilities, the administration must be fully transparent, and a full investigation must be conducted to determine whether any wrongdoing occurred and, if it did, to ensure justice is delivered.”

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