Emails: Michigan health director urged ‘edits’ to nursing home death audit

LANSING – Michigan Gov. Gretchen Whitmer’s health director unsuccessfully urged “significant edits” to an audit report that identified 2,386 previously unreported COVID-19 deaths in nursing homes and other long-term care facilities, according to emails obtained by Bridge Michigan.

The exchange between Michigan Department of Health and Human Services Director Elizabeth Hertel and Auditor General Doug Ringler, which occurred prior to the public release of his office’s report on Jan. 17, underscores Whitmer administration concerns the review would become political fodder for Republicans critical of her pandemic policies.

“Clearly we are in an agree to disagree situation on several issues,” Ringler told Hertel in a Jan. 11 email released Monday by the state health department in response to a Freedom of Information Act Request.

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The next day, Hertel asked Ringler to “clarify that the review you were conducting was not, in fact, a verification of the accuracy of the date MDHHS collected and reported, but actually an attempt to estimate the number of deaths of people who resided in any long-term care facility at any time without parameters for when or where they may have contracted COVID-19.”

The audit review, requested by GOP House Oversight Committee Chair Steve Johnson, identified 29.3 percent more COVID-19 deaths in long-term care facilities than previously reported by the state, which largely relied on nursing homes to self report totals.

Auditors working under Ringler, who was appointed by the Republican-led Legislature in 2014, used a different methodology than the health department to identify deaths and included numbers from facilities not required to report under federal or state rules. 

The review identified a total of 8,061 COVID-19 deaths linked to Michigan long-term care facilities between January 2020 and July 2021, up from the state's official count of 5,675.

The audit review – along with policies for nursing homes early in the pandemic— is a political liability for Whitmer, a first-term Democrat seeking re-election this year. 

While Ringler told lawmakers it is “unfair” to say the state intentionally undercounted nursing home deaths, critics including Republican gubernatorial hopeful Perry Johnson have cited the report to accuse Whitmer of “cover-ups.”

Whitmer spokesperson Bobby Leddy said Tuesday the state closely followed federal guidelines throughout the pandemic. 

“The Office of the Auditor General confirmed Michigan counted 100 percent of COVID-19 deaths that were reported to the state per CDC guidelines and accurately reported the numbers provided by nursing homes and long-term care facilities, which is why the auditor general ultimately concluded he didn’t feel the word 'under-report' was fair,” Leddy said in a statement.

Johnson, the legislator who requested the audit, told Bridge Michigan the newly revealed Hertel emails are indicative of the Whitmer administration's ongoing attempt to "spin" the nursing home narrative. 

"They know their policies were bad, and the people of Michigan are not happy with it," he told Bridge Michigan. 

But Lynn Sutfin, a spokesperson for the state health department, said it is “common practice” for departments to provide feedback on auditor general findings prior to publication. Hertel had “serious concerns” she wanted to voice, Sutfin said. 

Whitmer’s pandemic nursing home policies included an initial directive — rescinded before implementation — that would have required nursing homes with dedicated units to accept new residents infected with COVID. The administration ultimately designated regional hubs responsible for housing infected seniors. 

The nursing home death count review, which was not a full audit but rather a response to a specific legislative request, was controversial from the start. 

In a rare move, the Whitmer administration publicly challenged the audit report before it was released, preemptively releasing a Jan. 9 letter 

Hertel had written Ringler expressing fear his report would be misinterpreted because his team used a "different definition of a reportable long-term care COVID-19 death than required” by the U.S. Centers for Disease Control and Prevention. She wrote that could “create the impression of a larger undercount… than is warranted.”

‘Significant edits’

The new records obtained by Bridge show Hertel and Ringler continued to debate the audit review conclusions prior to publication. 

Ringler responded to Hertel in a Jan. 11 email, suggesting he was compelled to write her back because her Jan. 9 letter contained “several points which cannot go without further comment.”

He acknowledged limitations to the official audit count and noted those limitations were described in the report that would soon be made public.

“But we believe we applied the applicable criteria in identifying LTC COVID-19 deaths,” he told Hertel, defending the work.“Your response only appears to restate, and somewhat embellish, those limitations.”

Ringler also defended his teams’ use of Michigan Disease Surveillance System data, which he said was one of “multiple data sources” used to confirm deaths beyond those self-reported by facilities.

“While you may have reasons for not using it for ongoing reporting, our ability to corroborate over 85% of the addresses with minimal effort, demonstrated that these were viable information sources for our objectives,” he wrote. 

The auditor general also told Hertel that the report was not intended to question the “work and integrity” of health care professionals, as she had warned it might unintentionally do, telling her that “we are all indebted to them for… their efforts to treat our family, friends, and colleagues.”

Hertel responded on Jan. 12 in another previously undisclosed email, thanking Ringler for changes he had made to the audit report prior to its publication that clarified COVID death reporting requirements for facilities and added additional context to data tables. 

But “without significant edits to the memo per the response I sent last weekend, I will not be changing my response to attach for submission to the legislature,” Hertel wrote, referencing requests in the Jan. 9 letter she would release to reporters one day later - prior to the audit report. 

“I feel your memo should be clearer that the review being conducted was not, in fact, a review of the accuracy of the number of deaths required to be reported to the state per state and federal guidance, but, instead, an attempt to identify and estimate the number of deaths that occurred in any facility that may fall under the generic term ‘long-term care,’” Hertel wrote.

Under a traditional audit format, the health department would have had the opportunity to sit down with auditors to discuss their findings and provide an official response to be included in the audit report. 

That didn’t happen with the nursing home review because it was requested by a lawmaker who asked for specific parameters. Instead, Ringler and Hertel exchanged comments by email, and Ringler agreed to publish her Jan. 9 complaints alongside his report on the auditor general’s website.

But in her Jan. 12 email, Hertel suggested auditors should have “consulted a neutral, third-party expert with epidemiological experience” to determine how and when to use Michigan Disease Surveillance System data.

She concluded by thanking Ringler for adding a bullet point to the audit review making clear that his team did not purport to identify when or where a nursing home resident who died was actually exposed to COVID-19. 

“We appreciate the recognition that your analysis was not aligned with the guidelines the department was following,” Hertel wrote, stressing the distinction.

“As a result of this difference, your final count of long-term care associated COVID-19 deaths is not comparable with long-term care associated deaths in any other state or the nation as a whole.”

Ringler has made clear in testimony and public communications that his office was not reviewing the administration’s COVID-19 policies. 

In a July 2021 memo to Hertel, he said his scope was limited to reviewing health department processes for receiving and reporting deaths while validating the number of deaths involving long-term care facility residents.

“We will not comment on policy decisions regarding the placement of COVID patients,” Ringler wrote. 

While lawmakers have grilled Hertel over COVID-19 death totals in nursing homes, the Republican-led Legislature has not sent Whitmer any bills to change those reporting requirements or mandate reporting by other long-term care facilities reviewed by auditors. 

‘Frank communications’

The state health department on Monday provided hundreds of documents related to the audit review to Bridge Michigan, which requested them in February.  

But the department declined to disclose several others, including 12 pages included in the email thread between Hertel and Ringler. 

In redacting those messages related to the audit exchange, the health department cited a legal exemption to block disclosure of “advisory” documents that precede a final determination of policy or action.

“The public interest in encouraging frank communications among employees of the Department or other public bodies clearly outweighs the public interest in disclosure, as staff must make informed recommendations unfettered by third party interference in their deliberative process,” the department’s Bureau of Legal Affairs said in a FOIA notice sent to Bridge.

It’s not clear if those redactions were warranted, said Steve Delie, executive director of the Michigan Coalition for Open Government and an attorney with the Mackinac Center for Public Policy. 

“Frank communications” can be shielded from disclosure if it is “preliminary to a policy decision,” but “it remains unclear if the Auditor General’s report can be considered policymaking,” he said.

“The Auditor General’s report gathered data requested by the Legislature, and did not devote itself to evaluating the efficacy of the State’s long-term-care facility policy, but rather the accuracy of the numbers of deaths being reported,” Delie wrote to  Bridge in an email.

“Even if the Auditor General’s report could be considered an act of policymaking, it is still unclear that the MDHHS can show that the public interest in disclosing this correspondence is outweighed by the public interest in allowing government officials to communicate freely when developing policy."

Sutfin, the health department spokesperson, said the redacted pages contain a draft copy of the audit report that was not the final version released to the public.

"We usually redact audit drafts and discussions about our responses" under the advisory discussion exemption, she said. "They are preliminary to a final determination of policy or action."

Other emails provided to Bridge on Monday indicate that Hertel has implemented a new policy requiring pre-approval by herself or other senior officials before anyone else in the health department provides a response to auditors during future reviews. 

"These types of procedures are being implemented across the department to enhance transparency (keeping an easily accessible file of questions and approvals) as well as ensure leadership is aware of what is being communicated to external partners," Sutfin told Bridge.