Crooked Bough News Round-up

— Segregation Academies in Mississippi Are Benefiting From Public Dollars, as They Did in the 1960s

 

at 11/22/24 4:00am

by Jennifer Berry Hawes and Mollie Simon ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up for Dispatches, a newsletter that spotlights wrongdoing around the country, to receive our stories in your inbox every week. On May 14, the final day for submitting new bills in the Mississippi Legislature, a bold new package of them landed on the desks of Mississippi lawmakers. The plans called for the creation of a voucher program that paid for students to attend private schools. A few weeks later, in the heat of mid-June, the governor urged lawmakers to support the $40 million program, promising it “will bear the sound fruit of progress for a hundred years after this generation is gone.” Public school support would continue, he assured. But vouchers would “strengthen the total educational effort” by giving children “the right to choose the educational environment they desire.” It was 1964. Key backers of the move included a group of white segregationists that had formed after the U.S. Supreme Court ruled state-mandated public school segregation unconstitutional. Across the South, courts had already rejected or limited similar voucher plans in Alabama, Louisiana, Virginia and Arkansas. But Mississippi lawmakers plowed forward anyway and adopted the program. For several years, the state funneled money to white families eager for their children to attend new private academies opening as the first Black children arrived in previously all-white public schools. Now, 60 years later, ProPublica has found that many of these private schools, known as “segregation academies,” still operate across the South — and many are once again benefiting from public dollars. Earlier this week, ProPublica reported that in North Carolina alone, 39 of them have received tens of millions in voucher money. In Mississippi, we identified 20 schools that likely opened as segregation academies and have received almost $10 million over the past six years from the state’s tax credit donation program. At least eight of the 20 schools opened with an early boost from vouchers in the 1960s. “The origins of private schools receiving public funds were with the segregation academies,” said Steve Suitts, a historian and the author of “Overturning Brown: The Segregationist Legacy of the Modern School Choice Movement.” Most private schools receiving money from the voucher-style programs exploding across the country aren’t segregation academies. But where the academies operate, especially in rural areas, they often foster racial separation in schools and, as a result, across entire communities. Despite the passage of decades, most segregation academies across Mississippi remain vastly white — far more so than the counties where they operate, federal private school surveys show. Mississippi is the state with the highest percentage of Black residents. At 15 of the 20 academies benefiting from the tax credit program, student bodies were at least 85% white as of the last federal private school survey, for the 2021-22 school year. And among the 20, enrollments at five were more than 60 percentage points whiter than their communities. Another 11 were at least 30 percentage points whiter. In 1964, the White Citizens’ Council was among those pushing for the voucher plan. The pro-segregation group was founded in the Mississippi Delta town of Indianola in the 1950s by Robert “Tut” Patterson, who sought to “save our schools if possible” from integration and “if that failed, to develop a system of private schools for our children.” For Patterson, it was personal. His family, including a young daughter who would start school that fall, lived on what he called a “plantation” with 35 Black families. As he later told an interviewer, “We took care of them. We practically lived with them. We loved them. We tended to them, but I didn’t want to mingle my children with them.” The state’s voucher program provided $185 to each student to help pay private school tuition — about $1,876 in today’s dollars. It aimed to give each child “individual freedom in choosing public or private schooling,” the bill’s preamble said. Shortly after lawmakers adopted the plan, the Citizens’ Councils of America used its monthly journal to follow up with advice about “How To Start A Private School” and a “Sample Charter Of Incorporation.” Private schools sprouted up, particularly in public school districts under court desegregation orders or that had submitted voluntary desegregation plans to the federal government, court records show. Over the voucher program’s first four years, the number of new segregation academies that received public dollars snowballed from two to 49. Among them, 48 enrolled no Black students. One did admit Black children — but only Black children. John Giggie, a historian at the University of Alabama, directs its Summersell Center for the Study of the South and has studied the birth of these private schools. These days, people often “have no idea why these segregation academies opened,” he said. “It was one of the most aggressive moves that Southern governors took after the passage of the Brown case. That movement accelerated as the Civil Rights movement accelerated. It ripped across the region.” As white families rushed to open academies, vouchers provided critical seed money. In the 1965-66 school year, vouchers covered more than a third of the total operating costs for at least 17 new academies. One of the early takers was Central Holmes Academy, now Central Holmes Christian School. Vouchers paid more than 78% of the fledgling academy’s tuition bills for 210 students that school year. The school’s directors made their feelings about integration clear in a letter later cited in federal court in which they described “other schools” as “intolerable and repugnant.” In 1968, Mississippi lawmakers increased each voucher to $240. The following January, Black families in Mississippi prevailed in a federal class-action lawsuit against the state challenging the vouchers’ constitutionality. A panel of federal judges found that the program supported “the establishment of a system of private schools operated on a racially segregated basis as an alternative available to white students seeking to avoid desegregated public schools.” The program violated the Constitution, the judges ruled. Parents could choose segregated private schools for their children — but the voucher program involved the state in that discrimination. In a way, it was too late. The academies were up and running. “Clearly, the schools could not have survived as even semblances of educational institutions without these contributions,” the U.S. Department of Justice found after examining the academies’ finances as part of the federal lawsuit. By then, state taxpayers had funded more than 5,000 vouchers. The segregation academies continued for a time to receive other forms of public aid, including state-financed textbooks, deals on property and donations of public school equipment. But vouchers were dead. Then, five decades after the court tossed its early voucher program, Mississippi’s Legislature found a way to reestablish private school funding. In 2019, the state launched its Children’s Promise Act, which provides incentives to businesses to participate in a state-funded program for private schools. The program gives businesses a dollar-for-dollar tax credit — up to 50% of their total tax liability — for donations to certain educational charities, including private schools. The act aims to help children who are low income, living in foster care or diagnosed with chronic illnesses or disabilities. But there is no public disclosure of how much the schools focus on any of these things. Their requests with the state to qualify for the donations — and therefore claims they make about how many students they serve in these categories — are not made public. But it is clear that the donations, refunded with tax dollars, are flowing into segregation academies. In its latest annual report, the Midsouth Association of Independent Schools, founded in 1968 by a group of segregation academies, said the Mississippi tax credits are now a “crucial source of funding.” (The association’s ethics guidelines state any member school “shall not discriminate on the basis of race, sex, color, national, or ethnic origin in the administration of its admission practices.”) ProPublica found that segregation academies represent at least a fifth of all schools benefiting from the tax credits. Central Holmes is one. The school has received $812,150 from the tax credit-fueled donations since 2020. Those resources help it improve academic programs, update technology and facilitate professional development, said the school’s headmaster, Chris Terry. As of the last federal private school survey, Central Holmes reported a student body that was 82% white — a shift from 95% white a decade ago but far from representative of the community around it. Holmes County is barely more than 15% white. Terry, who’s been headmaster since 2022, noted that during that time, the school has had Asian, Hispanic and Black students “enjoying success.” Among them were a Black valedictorian and homecoming queen. “To me, this shows our school’s desire to move past the past and forge a new future for our students and families,” Terry said in an email. He added that he couldn’t comment on the school’s origin because he wasn’t alive at the time. Those who were alive when it opened in 1965 voiced differing visions for the future. In 1970, a Black legislator who represented Central Holmes’ district predicted that white students would return to public schools in “two or three years.” But Central Holmes’ board chair, a former legislator, disagreed. He predicted the school would “go on indefinitely.”

— How Lincare Cashed In on the Disastrous Recall of Philips Breathing Machines — at the Expense of Patients

 

at 11/22/24 3:00am

by Peter Elkind ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published. For users of breathing machines made by Philips Respironics, recent years have been a nightmare in multiple acts. First came complaints of illnesses and injuries caused by the devices. Then came reports of deaths. Then came a large-scale recall that itself was beset by problems. Now ProPublica has learned of another episode. As Philips struggled to execute its recall in 2022, it turned to its biggest distributor, a company called Lincare, to help ensure that replacement equipment would reach the patients who needed it most. But instead of sending those machines to vulnerable longtime users — what Philips expected — Lincare diverted thousands of machines to new customers, which resulted in greater profits. Some patients did not receive replacement breathing machines for as long as two years. Meanwhile, complaints to the FDA reporting deaths (561) and illnesses, injuries or malfunctions (116,000) associated with the recalled devices continued to climb. Philips’ problems first surfaced publicly in June 2021, when the company warned that the noise-deadening foam lining its equipment, mostly CPAP machines, could break apart, sending potentially toxic particles and fumes into users’ throats and lungs. (Millions of people use such “continuous positive airway pressure” devices to treat sleep apnea, a condition that causes breathing to stop and start repeatedly during the night.) Philips announced a recall. The company vowed to stop selling to new customers and dedicate its manufacturing capacity to replacing the recalled devices with safe, redesigned CPAP machines “as expeditiously as possible.” (The Philips recall, and the tangled history that led up to it, were the subject of a series of investigations by ProPublica and the Pittsburgh Post-Gazette.) But the recall was marred by problems, and by the spring of 2022, many patients hadn’t received replacement devices. Some were informed by Philips that they might have to wait another year, meaning the company would fail to fulfill its plan to swap out all the recalled equipment by the end of 2022. That left even a patient who’d had a double lung transplant waiting for months on end. Under pressure from the Food and Drug Administration, which regulates medical-device safety, Philips agreed to pursue a “prioritization approach,” providing new equipment first to the “most vulnerable” patients — those who depend on the breathing equipment the most. Philips pledged that all the safe devices it produced would go as quickly as possible to the sickest patients, according to a March 10, 2022, FDA notification order. Lincare is America’s biggest distributor of breathing equipment. It buys tens of thousands of CPAP machines from Philips and other manufacturers every year, then collects up to 13 months of rental payments for providing them to patients, with Medicare and other insurers picking up most of the tab. Lincare also sells lucrative replacement supplies, such as masks, filters and hoses. The company has a lengthy history of misbehavior, including repeated instances of overcharging Medicare and elderly patients — Lincare has been placed on Medicare’s equivalent of probation four times in the past quarter-century — according to a recent investigation by ProPublica. Lincare and most other distributors had refused to actively help Philips with the recall, according to four sources familiar with the recall. They complained that Philips wasn’t offering enough money to do the work of picking up old equipment and replacing it. Meanwhile, Philips’ CPAP woes had cut into Lincare’s profits, since there was a dearth of new machines to make money off while the recall was underway. But a top Lincare executive found a way to exploit the recall to the company’s benefit. In late March 2022, Lincare’s chief operating officer, Greg McCarthy, unveiled a plan to his deputies that would ease the financial hit, according to Sam Markovic, then one of the company’s four regional vice presidents. McCarthy told them, in their regular Friday conference call, that he’d arranged for Philips to give Lincare 20,000 CPAP machines for free. Philips had assured the FDA that it would direct that all of the new machines be sent to replace recalled devices, prioritizing customers who needed them the most. But that’s not what Lincare planned to do with its supply. Instead, according to Markovic, McCarthy told his deputies that Lincare would provide the devices to new customers. The company would make more money that way. Lincare could add more patients even as existing customers kept paying for supplies for their recalled machines. McCarthy ended the conference call, Markovic said, with his frequent admonition: “If you’re not growing, you’re dying!” In a private conversation that was tape recorded, McCarthy later described how he had obtained the machines, according to Spence Hodges, then Philips’ top sales executive on the Lincare account, who was given a copy of the recording. In that conversation, McCarthy said he had let Philips believe that Lincare would use the machines to replace recalled devices that it owned and were needed for existing patients in long-term care facilities, such as assisted living and nursing homes. This article is based on accounts from Markovic, other former Lincare employees and Hodges. Lincare, which has a history of litigation with its former executives, fired Markovic in 2022 and sued him for obtaining more than $100,000 in reimbursements for allegedly improper expenses; earlier this year, a judge issued a summary judgment in Lincare’s favor. Markovic disputes the allegations. Philips declined to comment on Lincare’s role in the recall. But in a written statement, Philips confirmed that the new CPAP devices it provided were supposed to be used to replace recalled machines: “All of the decisions Philips Respironics has taken to allocate new and remediated devices in the United States are based solely on prioritizing patient needs. Our position has always been, and remains, that all devices manufactured to address the recall in the United States are intended for affected patients only.” An FDA spokesperson declined to make officials available for interviews or comment on Lincare’s actions, but wrote, “Protecting impacted patients and ensuring they receive relief has been a high priority for the FDA throughout this recall.” Lincare also declined to make executives available for comment. In response to a summary of this article’s findings, provided separately to a spokesperson and to COO McCarthy, the spokesperson emailed a two-sentence response: “We appreciate your questions. We take this matter seriously and are looking into it.” McCarthy did not provide any comment. Lincare has some 700 locations in the U.S., including this one in Libby, Montana. (Rebecca Stumpf, special to ProPublica) In early April 2022, shortly after their meeting with McCarthy, Lincare vice presidents began contacting local center managers around the country who would be receiving shipments of the otherwise scarce Philips CPAP machines, to pass on the COO’s orders that they be used for new patients. Markovic said he personally notified five managers in four states. Several were surprised to learn that Lincare would have devices for new customers (or “setups,” in industry parlance). The new machines allowed one local center to exceed its monthly quota for new CPAP sales despite the recall, according to a former manager who requested anonymity. “I set up over a hundred in that time,” the former manager told ProPublica. “I just remember every time before I thought I had to cancel setups, there would be another two pallets of them [arriving]. It was just perfect timing.” By June 2022, Hodges, Philips’ account executive for Lincare, had learned about Lincare’s plans. Hodges promptly reported what he had heard to Philips management, he told ProPublica. A few weeks later, he received the recording of McCarthy discussing how he’d misled Philips, he said, and turned that over to his bosses too. “All I know is that information was brought back to me,” he said, “and I went through the appropriate channels at Philips. I turned over everything and let them decide what to do with it.” It’s unclear what, if any, actions Philips took in response to that information. Hodges, who left Philips in 2023 after 15 years at the company, said he was upset at the time. “People were having to wait,” he said. “To my mind, these devices were meant to be used by patients that needed their devices replaced, and I felt strongly that’s what they should be used for. Philips was doing their best to remediate as fast as they could.” It’s not clear exactly how much longer some patients had to wait for new equipment because of Lincare’s diversion. It was only in October 2023 that Philips said it had fulfilled “over 99%” of requests made by patients who registered for the recall. (Those patients received new equipment or, in some instances, a payment.) That means that some users may have waited as long as two years for replacement equipment. As ProPublica previously reported, Philips waited years to act on health complaints and internal concerns before issuing its recall, which involved both CPAP machines and ventilators, in June 2021. Since then, the company has faced an ongoing federal criminal investigation and more than 700 lawsuits. Since December 2023, Philips, without admitting fault, has agreed to $1.7 billion in settlements and a federal consent decree that indefinitely bars any new respiratory device sales in the U.S. and provides health monitoring and payments for affected customers. Philips has long cultivated a cozy relationship with Lincare. Philips’ efforts to boost sales to Lincare and other distributors have led to three civil suits by the federal government claiming Philips gave the distributors kickbacks. In 2016, Philips agreed to pay $34.8 million to resolve claims that it illegally provided free call-center services in exchange for companies’ purchase of Philips CPAP masks. In 2022, it agreed to pay $24 million to resolve claims that it provided physician prescribing data to Lincare and other companies in exchange for equipment orders, and to pay $1.3 million for allegedly arranging interest-free loans for equipment purchases. (Philips denied wrongdoing in each of the cases.) These days, Lincare and Philips are squaring off in court — with Lincare as the plaintiff. The company sued Philips in February in state court in Pennsylvania, where Philips manufactures its devices. Lincare is seeking payment for “many millions of dollars” in costs and losses that Lincare blamed on the recall, citing an indemnification provision in its contract with Philips. Philips has not filed a response to the lawsuit. In a public filing with the Securities and Exchange Commission, however, Philips said it is “engaging with certain of its business partners on the level of compensation they alleged to be entitled to” from the recall. Tom Wilson, administrator of the 7,700-member CPAP Recall Support Group on Facebook, called Lincare’s actions in the recall “terrible.” In mid-2022, he said, many patients were still waiting for new, safe machines. Those with severe cases of apnea, unable to simply stop using their recalled devices, were especially frightened and desperate to get replacements. “You’ve got something that’s on your face eight hours a night, and you don’t know how safe or unsafe this equipment is.” Do You Have a Tip for ProPublica? Help Us Do Journalism.

— Cities Say They Store Property Taken From Homeless Encampments. People Rarely Get Their Things Back.

 

at 11/21/24 4:00am

by Nicole Santa Cruz, Asia Fields and Ruth Talbot ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up for Dispatches, a newsletter that spotlights wrongdoing around the country, to receive our stories in your inbox every week. When Stephenie came upon workers in Portland, Oregon, who had bagged up all of her belongings in a homeless encampment sweep, she desperately pleaded to get one item back: her purse. It contained her cash and food stamp card — what she needed to survive. The crew refused to look for it, she said. The items workers had put in clear bags were headed to a city warehouse. Those in black bags were headed to a landfill. They handed her a card with a phone number to call if she wanted to pick up her things. Portland, Oregon, distributes cards to people whose belongings are stored after encampment removals. Stephenie, who is homeless, received a similar card after her belongings were taken. (Photo provided by Portland officials) Pregnant and hungry, Stephenie was supposed to rest and avoid heavy lifting. She now had to start all over. In the days that followed last September, Stephenie slept on a sidewalk for the first time. She said she attempted suicide. “I had nowhere to go — no place, no tent, no nothing. I couldn’t even feed myself,” she said. “The lowest point I’ve ever been in my life was after the sweep.” If you or someone you know needs help, here are a few resources: Call the National Suicide Prevention Lifeline: 988 Text the Crisis Text Line from anywhere in the U.S. to reach a crisis counselor: 741741 As homelessness has reached crisis levels, more cities are clearing tents and encampments in operations commonly called sweeps. Since a U.S. Supreme Court decision in June allowed cities to punish people for sleeping outside, even if there’s no shelter available, some have made their encampment policies more punitive and increased the frequency of sweeps. Some cities have programs to store what they take, sometimes created in response to lawsuits. In theory, these storage programs are supposed to protect people’s property rights and make it easy to get their possessions back. In reality, they rarely accomplish either objective, according to a ProPublica investigation of the policies in regions with the largest homeless populations. ProPublica obtained records from 14 cities showing what was stored following encampment clearings. In Los Angeles and San Diego, thousands of encampments are removed each year, but the belongings taken from them are rarely stored, the records showed. San Diego, for example, removed more than 3,000 sites during 2023 but only documented storing belongings 19 times. In Seattle, the city removed nearly 1,000 encampments during a six-month period last year and stored belongings from just 55 of them. This sign from Seattle indicates that nothing was stored after an encampment was cleared. (Asia Fields/ProPublica) Even when possessions are stored, the records showed, people are rarely able to reclaim them. In Portland, which stores the most among the cities ProPublica reviewed, property was reclaimed 4% of the time during a recent 12-month period. In San Francisco, property was reclaimed roughly 12% of the time over 18 months; much of what the city stored was collected after contact with police. Records provided to ProPublica by Anaheim, California, showed nothing had been retrieved from January 2023 through May of this year. Some cities did not address ProPublica’s questions about the low rates at which people are able to retrieve their belongings. But they broadly defended their encampment practices, saying that they balance the rights of people experiencing homelessness with public health needs. In Portland, officials said they manage an extensive database of stored belongings and “share in the collective frustration in the difficulties in managing a system that works well for everyone.” When asked about the sweep in which Stephenie’s items were taken, they acknowledged that camp removals are harmful to unhoused people, but that they must also maintain city property and natural areas. ProPublica heard from at least 95 people who had experienced encampment clearings in cities with programs to store belongings. Thirty said they tried to recover their belongings but hit obstacles, such as being unable to reach anyone at the facility or the site not having everything that was taken. Only one person got back all of his items. The rest said they didn’t try, often because they didn’t know how to go about it, lacked phones or transportation, or thought, and in some cases saw, that their belongings had already been thrown away. A section of the facility where Portland stores items taken in sweeps. A larger area not pictured contained shelves full of bags in May. City officials said they manage an extensive database of stored belongings. (Asia Fields/ProPublica) Rapid Response is contracted by Portland to handle sweeps. The company’s open-bed truck held items being thrown away, while the box truck had bags headed to storage. (Asia Fields/ProPublica) The storage programs offer only an “illusion of compassion,” said Barbara DiPietro, senior director of policy for the National Health Care for the Homeless Council, a nonprofit research and advocacy group. People experiencing homelessness often endure encampment clearings multiple times, which “wears a human being down,” DiPietro said. “I’ve never heard anyone say they got their stuff back.” Dozens of outreach workers and advocates in cities with storage programs echoed DiPietro’s statements. Advocates and people with lived experience said this deprives homeless people of belongings they need to survive on the street and forces them to reconstruct their lives and obtain new identification documents when they are taken. “The loss of property was the harshest punishment many people felt they could face on the street,” said Chris Herring, an assistant professor of sociology at the University of California Los Angeles who researches homelessness. Why Storage Doesn’t Work Stephenie, who is homeless in Portland, describes the difficulties she encountered trying to retrieve her belongings after a sweep. When Stephenie called to retrieve her belongings last October, no one answered the storage facility phone number. The line was staffed for limited hours. She left a message but couldn’t always keep her phone charged in case someone called back. When she finally reached a person, they provided the address and an appointment time. She had to take multiple buses and walk to get there. As she sorted through the large clear bags at the warehouse, she realized her tent, most of her tarps and her cooking stove weren’t there. Nor was her purse or prenatal vitamins. Her engagement ring and the notes from her late fiance were also gone. She left the bags behind. “To go through all that trouble to get my stuff back and then to have nothing that I needed there, and to have that decided by somebody else who doesn’t even know me, it was traumatizing all in itself,” she said. “It was heartbreaking. It felt like losing everything all over again.” In response to a prompt from ProPublica, Stephenie wrote about having her purse taken in a sweep. A Response to Lawsuits Nearly half of the cities ProPublica examined created storage programs in response to lawsuits alleging they had violated people’s property rights by destroying belongings during encampment removals. Yet some of those cities, including Phoenix, continue to throw away possessions, according to advocates and people who sleep outside. In December 2022, after a local advocacy group and unhoused people sued the city of Phoenix for violating the rights of homeless people, a chief U.S. district judge issued an injunction against seizing their property without advanced notice and ordered the city to store belongings for at least 30 days. The city began storing belongings in May 2023. Since then, it has responded to 4,900 reports from the public involving encampments, according to city records through May. The city of Phoenix said workers, trained to assess which items are property and which are trash, found storable property at 405 of the locations it visited, and not all of those cases required storage because people may have removed their belongings prior to their arrival. The city stored belongings 69 times. In June, the Department of Justice issued a report following a nearly three-year investigation, finding that the city and its police department destroyed belongings without providing adequate notice or an opportunity to collect them. Before property is destroyed, the city must provide notice, catalog the property and store it so people can retrieve their belongings, federal investigators wrote. Benjamin Rundall, who represents the plaintiffs in the ongoing lawsuit, said he’s never encountered anyone whose belongings were stored by the city. “It’s just giving this appearance that they’re doing something when they’re not doing anything,” he said. Over the summer, Mike Leeth was helping a friend move their things from a Phoenix alley, leaving his own camp unattended. He rushed back to find his own belongings — clothing, canned food and canopies for shade — were gone. “All of a sudden, I’m down to one set of clothes, and I can’t even wash them because I’m currently wearing them,” he said. Leeth said the city has thrown away his belongings at least five times. He said he’s never been told that his property would be stored. The city said in a statement that workers give notice and store unattended property, and that it’s “confident” its processes address encampments in a “dignified and compassionate manner.” In other cities, lawsuits have continued long after storage programs were put into place. Los Angeles, with the nation’s largest population of people sleeping outside, has in the last 30 years faced nearly a dozen lawsuits over the destruction of property in homeless camps, according to court records. A 2019 lawsuit brought by seven people experiencing homelessness and two advocacy groups alleged the city has “codified” seizing and destroying belongings, rather than investing in bathrooms, hand-washing stations and trash cans for unhoused people. In April, a federal judge overseeing the case found that the city had altered documentation of what crews removed during cleanups. The city declined to comment on the ongoing lawsuit. In response to questions from ProPublica, the city of Los Angeles provided data showing that it only stored belongings 4% of the time during a three-month period in 2023. A spokesperson said the city recognizes the “importance of ensuring people have their personal belongings” and “works to not unnecessarily remove anyone’s belongings during cleanings.” In April, when crews came to move Ismael Arias from where he was living on a sidewalk in a Los Angeles suburb, they took his plumbing tools, a Mexican coin collection given to him by his father and a baseball card collection he was planning to give to his son. A friend drove him to reclaim his things. At the storage facility, he was given items to look through. “I said, ‘This is not my stuff,’ and they said, ‘Well, this is all we got,’” he said. “I was like, ‘What do you mean this is all you got?’” ProPublica spoke to three others who attempted to retrieve belongings from Los Angeles storage facilities and found some or all of their things were missing. Evidence in an ongoing lawsuit in San Francisco revealed that workers were not instructed how to distinguish between personal property that is unattended, abandoned property and property that’s mixed in with biohazards, Chief Magistrate Judge Donna Ryu wrote. Workers’ decisions “appear to give rise to the most disputes,” Ryu wrote in August. The city agreed to better train workers who handle the belongings of homeless people at removals. The ruling came weeks after Mayor London Breed promised “a very aggressive” crackdown on encampments. Breed lost her race for reelection. In August, two ProPublica reporters observed San Francisco public works employees clear an encampment of tents, plastic bins of clothing, a cot and bikes. Nothing was set aside to be stored. One employee did slip into his uniform’s oversized pocket a tin of baseball cards taken from the encampment; he then placed it in the cab of a work truck rather than the back, where other belongings were stacked. The city said it is investigating the incident. A tin of baseball cards was taken from a San Francisco encampment and placed inside of a city vehicle. (Nicole Santa Cruz/ProPublica) Barriers to Claiming Property In Portland two years ago, workers took Errol Elliott’s tools, clothing, electronics and makeshift tent near the church where he stayed. He was given information about storage but didn’t have a way to carry his things. “How are you gonna pick it up when you have no car and you’ve got nine bags of stuff or two big trunks of tools?” he said. “How are you supposed to get that back? They act like it’s so easy to go and get it, but it’s not that easy.” Portland officials said in this kind of situation, property was likely taken to storage. But people in Portland and other cities told ProPublica that even if local officials promise to store belongings, they’re often difficult to retrieve. The programs don’t take into consideration the challenges of experiencing homelessness, which include lack of access to transportation and not having a phone, they said. This is further complicated by requiring an appointment to retrieve belongings or not widely distributing the address where items are stored. Some cities, such as Seattle, Portland, Anaheim and San Jose, California, don’t publicize the addresses of their storage facilities because of concerns about security. Phoenix says it delivers belongings to people, but records show people there are rarely reunited with their property. When people do figure out where to go, the journey can be long and require multiple trips. In Denver, for instance, the storage facility is only open for limited hours. Some people have trekked to the warehouse only to be told their belongings were stored off-site and have to be retrieved, said Andy McNulty, an attorney who sued the city on behalf of people who live outside. When they return they’re told that their belongings weren’t stored, he said. “It’s pretty common knowledge to folks on the street now that if the city takes your stuff, even if they say they’re going to store it, it’s gone,” McNulty said. The city of Denver said that people receive a claim slip when their items are stored after an encampment removal. Flyers with contact information are also widely shared so people can arrange a pickup, the city said. In Los Angeles, a sign giving notice of a June encampment clearing in the San Fernando Valley directed people to call or retrieve their items from The Bins downtown, which is about two hours away on public transit. Multiple people said the distance prevented them from getting their things back or that they were unable to reach anyone for more information on how to retrieve them. The city stores belongings at 10 locations across Los Angeles, making it even more challenging for people to find their things. Angel, who is homeless in Los Angeles, said she’s tried calling the number on city sweep notices multiple times. “In reality, it always goes to a busy line,” she said. People who experienced encampment removals and researchers who study homelessness said the programs could be more effective by giving clearer notice, providing trash cans and garbage pickup and making sure people have detailed instructions on how to retrieve belongings. Sonja Verdugo-Baumgartner, an advocate in Los Angeles who said she has experienced sweeps herself, said storage programs could be more productive if cities put effort into them. “But I don’t see the city or anybody being willing to take the time to do that,” she said. “And they can’t just do it for a few people, they need to do it across the board, for anytime they do a sweep.” Stephenie, whose belongings were taken in Portland, said the experience was crushing. “It keeps you in what we call a ‘homeless rut,’ where we can’t focus on anything else except being homeless,” she said. “We can’t focus on getting out of it and moving forward.” She now lives in an RV, which makes it easier to haul her belongings when city workers show up. But she has to move the vehicle every few weeks to avoid being towed, and finding a spot to park is challenging. She’s noticed more cement blocks cropping up in parking spaces along the roadsides. How We Reported This Story ProPublica received records of personal property collected and returned to people after homeless encampment removals in 14 cities. We verified that sweeps had occurred in the area and around the time that our sources described using additional interviews, city data, sweep schedules or media reports. We verified each person’s identity through public records. But we used only first names when people said the publication of their full names would pose safety risks or affect their ability to get jobs. Have You Experienced Homelessness? Do You Work With People Who Have? Connect With Our Reporters. Maya Miller contributed reporting.

— Georgia Dismissed All Members of Maternal Mortality Committee After ProPublica Obtained Internal Details of Two Deaths

 

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by Amy Yurkanin ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published. Register for our Nov. 21 virtual discussion, where our reporters take you inside ProPublica’s reproductive health coverage. Georgia officials have dismissed all members of a state committee charged with investigating deaths of pregnant women. The move came in response to ProPublica having obtained internal reports detailing two deaths. ProPublica reported in September on the deaths of Amber Thurman and Candi Miller, which the state maternal mortality review committee had determined were preventable. They were the first reported cases of women who died without access to care restricted by a state abortion ban, and they unleashed a torrent of outrage over the fatal consequences of such laws. The women’s stories became a central discussion in the presidential campaign and ballot initiatives involving abortion access in 10 states. “Confidential information provided to the Maternal Mortality Review Committee was inappropriately shared with outside individuals,” Dr. Kathleen Toomey, commissioner of the state Department of Public Health, wrote in a letter dated Nov. 8 and addressed to members of the committee. “Even though this disclosure was investigated, the investigation was unable to uncover which individual(s) disclosed confidential information. “Therefore, effective immediately the current MMRC is disbanded, and all member seats will be filled through a new application process.” A health department spokesperson declined to comment on the decision to dismiss the committee, saying that the letter, which the department provided to ProPublica, “speaks for itself.” Georgia Gov. Brian Kemp’s office also declined to comment, referring questions to the health department. Under Georgia law, the work of the maternal mortality review committee is confidential, and members must sign confidentiality agreements. Those members see only summaries of medical records stripped of personal details, and their findings on individual cases are not supposed to be shared with the public — not even with hospitals or with family members of women who died. The health department’s letter states that there could be new steps to keep the board’s deliberations from public view. The letter said officials might change “other procedures for on-boarding committee members better ensuring confidentiality, committee oversight and MMRC organizational structure.” Maternal mortality review committees exist in every state. They are tasked with examining deaths of women during a pregnancy or up to a year after and determining whether they could have been prevented. Georgia’s had 32 standing members from a variety of backgrounds, including OB-GYNs, cardiologists, mental health care providers, a medical examiner, health policy experts and community advocates. They are volunteer positions that pay a small honorarium. Their job is to collect data and make recommendations aimed at combatting systemic issues that could help reduce deaths and publish them in reports. The Georgia committee’s most recent report found that of 113 pregnancy-related deaths from 2018 through 2020, 101 had at least some chance of being prevented. Its recommendations have led to changes in hospital care to improve the response to emergencies during labor and delivery and to new programs to increase access to psychiatric treatment. The health department’s letter states that the “change to the current committee will not result in a delay in the MMRC’s responsibilities.” But at least one other state has experienced a lag as a result of reshaping its committee. Idaho let its maternal mortality review committee legislation expire in July 2023, effectively disbanding the committee after lobbyist groups attacked members for recommending that the state expand Medicaid for postpartum women. Earlier this year, Idaho’s Legislature reestablished the committee, but new members weren’t announced until Nov. 15. There is now more than a yearlong delay in the review process. Reproductive rights advocates say Georgia’s decision to dismiss and restructure its committee also could have a chilling effect on the committee’s work, potentially dissuading its members from delving as deeply as they have into the circumstances of pregnant women’s deaths if it could be politically sensitive. “They did what they were supposed to do. This is why we need them,” said Monica Simpson, executive director of SisterSong, one of the groups challenging Georgia’s abortion ban in court. “To have this abrupt disbandment, my concern is what we are going to lose in the process, in terms of time and data?” One objective of any maternal mortality review committee is to look at the circumstances of a death holistically to identify root causes that may be able to help other women in the future. In the case of Candi Miller, the most prominent detail in a state medical examiner’s report of her death was that she had a lethal combination of painkillers in her system, including fentanyl. It attributed the cause of death to drug intoxication. But the Georgia committee looked at the facts of the death with a different objective: to consider the broader context. A summary of Miller’s case prepared for the committee, drawn from hospital records and the medical examiner’s report, included that Miller had multiple health conditions that can be exacerbated by pregnancy, that she had ordered abortion pills from overseas and that she had unexpelled fetal tissue, which showed the abortion had not fully completed. It also stated that her family had told the coroner she didn’t visit a doctor “due to the current legislation on pregnancies and abortions.” The committee found her death was “preventable” and blamed the state’s abortion ban. “The fact that she felt that she had to make these decisions, that she didn’t have adequate choices here in Georgia, we felt that definitely influenced her case,” one committee member told ProPublica in September. “She’s absolutely responding to this legislation.” For Miller’s family, the committee’s findings were painful but wanted. “It seems like that is essential information that you would share with the family,” said Miller’s sister, Turiya Tomlin-Randall, who was not aware of the committee’s work until ProPublica contacted her. She also said it’s upsetting to hear that the committee’s members were dismissed partly as a result of her sister’s case being disclosed to the public. “I don’t understand how this is even possible,” she said. The committee also investigated the case of Amber Thurman, who died just one month after Georgia’s six-week abortion law went into effect. The medical examiner’s report stated that Thurman died of “sepsis” and “retained products of conception” and that she had received a dilation and curettage, or D&C, and a hysterectomy after an at-home abortion. When the committee members received a summary of her hospital stay, they saw a timeline with additional factors: The hospital had delayed providing a D&C — a routine procedure to clear fetal tissue from the uterus — for 20 hours, which Thurman needed for rare complications she’d developed after taking abortion medication. The state had recently attached criminal penalties to performing a D&C, with few exceptions. The summary showed doctors discussed providing the D&C twice, but by the time they performed the procedure it was too late. Committee members found that there was a “good chance” Thurman’s death could have been prevented if she had received the D&C sooner. Doctors and a nurse involved in Thurman’s care did not answer questions from ProPublica for its September story. The hospital also did not respond to multiple requests for comment. Thurman’s family also told ProPublica they had wanted the information about her death disclosed. Some experts say that keeping the reports of maternal mortality review committees confidential is important for a committee to serve its purpose. They are set up not to assign blame but instead to create a space for clinicians to investigate broad causes of maternal health failures. But others say the lack of transparency can serve to obscure the biggest disruption to maternal health care in half a century. “We know that the reports that have come out of that committee are anonymized and synthesized in order to provide a 50,000-foot view,” said Kwajelyn Jackson, executive director of Feminist Women’s Health Center in Atlanta, which provides abortion care. “But my worry is that in an effort to protect the state, there will be less information that will be available to people who could shift their actions, shift their protocols, shift their strategies, shift their behaviors in order to make a difference in maternal health outcomes.” Two states did make shifts to their committees — Idaho, after members made a recommendation to expand Medicaid that Republicans opposed, and Texas, after a member publicly criticized the state. In 2022, Texas committee member Nakeenya Wilson, a community advocate, spoke out against the state’s decision to delay the release of its report during an election year. The following year, the Legislature passed a law that created a second community advocate position on the committee, redefined the position and had Wilson reapply. She was not reappointed. The state instead filled one of the slots with a prominent anti-abortion activist. Wilson said Georgia’s decision to dismiss its committee could cause greater harm. “What message is being said to the families who lost their loved ones?” she said. “There’s going to be even less accountability for this to not happen again.” Ziva Branstetter, Kavitha Surana, Cassandra Jaramillo and Anna Barry-Jester contributed reporting. Doris Burke contributed research.

— In Five Years, Chicago Has Barely Made Progress on Its Court-Ordered Police Reforms. Here’s Why.

 

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by Heather Cherone, WTTW News, and Vernal Coleman, ProPublica, photography by Sarahbeth Maney, ProPublica This story was co-published with WTTW News. ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up for Dispatches, a ProPublica newsletter that spotlights wrongdoing around the country, to receive our stories in your inbox every week. WTTW News is Chicago’s PBS affiliate. Sign up for the Daily Chicagoan, a newsletter that explores the backstory of the city’s biggest issues. In the five and a half years since the Chicago Police Department agreed to extensive oversight from a federal judge, there have been bursts of activity to address the brutality and civil rights violations that led to the agreement. Court hearings: more than a hundred. Meetings: hundreds. Money: hundreds of millions in Chicago taxpayer dollars allocated to making the court-ordered reforms, known as a consent decree, a reality. But the record of actual accomplishment is meager. Chicago police haven’t crafted a system for officers to work with residents to address threats to public safety. They haven’t completed a mandatory study of where officers are assigned throughout the city and whether changes would help thwart crime. And they have failed to move forward with a plan to alert police brass about which officers have been accused of misconduct more than once and might need counseling, retraining or discipline. In fact, all told, police have fully complied with just 9% of the agreement’s requirements. And while excessive force complaints from citizens have dropped, complaints about all forms of misconduct have risen. Sheila Bedi, an attorney who represented the coalition of police reform groups that sued the city years ago, called the faltering reform effort a “tragedy.” “It has been a waste of time and money,” said Bedi, a Northwestern University law professor. “It has been nothing more than an exercise in pushing paper.” A review by WTTW News and ProPublica of the efforts in Chicago since 2019 shows Bedi’s bleak view is supported by a range of assessments produced for the court and is also widely held among advocates, academics and officials following the process. The goal is to emerge from the consent decree by 2027 with a police force finally ready to move beyond a long history of civil rights violations targeting Black and Latino Chicagoans. But the city is now on a path to devote substantial resources and large amounts of money to the reform effort for years beyond that. It’s a trajectory that echoes what happened in Oakland, where the police department continues to be marred by scandal and remains under federal court oversight more than 20 years into its consent decree. No one in a position of power or oversight has pushed forcefully or effectively to make the process move faster, WTTW News and ProPublica found. Six permanent and interim superintendents have led CPD since 2019 and the city has had three mayors, all of whom vowed to implement the consent decree but failed to make good on those promises with money and other resources. In addition, the Chicago City Council has repeatedly failed to exercise its authority to oversee CPD’s operations and demand quicker change. The council has approved $667 million to go toward implementing the decree since 2020, but at least a quarter of the city’s annual allotment goes unspent each year, a WTTW News analysis found. At the same time, inside the federal courtroom, the court-appointed monitoring team has never demanded sanctions for the city’s slow pace. Similarly, judges overseeing the decree have not expressed concerns about the lack of significant advances. No major city exemplifies the stubborn problems of police misconduct more than Chicago, where a series of civil cases and wrongful convictions have led to expensive court settlements that regularly cost the city more than $80 million a year. Distrust in the community now makes attacking the city’s crime rate even harder. Now many of the city’s reform advocates have lost faith in the process and are increasingly concerned that the opportunity for lasting reform is slipping away. Surveys of Chicagoans completed as part of the consent decree show a clear drop in confidence that there will be lasting and positive change. The process has its defenders, including current Illinois Attorney General Kwame Raoul, whose predecessor sued the city to force it to agree to federal court oversight. Raoul still believes the consent decree is the best way of “making these necessary reforms a reality.” But he also appears to be losing patience. Raoul warned last week that he would seek sanctions against the city if Mayor Brandon Johnson did not reverse the planned cuts. “I must remind you that the consent decree is not optional,” Raoul wrote to the mayor. “The City of Chicago must deliver on its consent decree obligations.” Johnson rarely speaks publicly about the need to reform the police department, instead focusing on efforts to improve officer morale and reduce crime. He declined to be interviewed for this story but has told reporters he is committed to ensuring CPD “engages in constitutional policing.” Porscha Banks’ brother Dexter Reed was shot and killed by Chicago police during a traffic stop. She’s frustrated by the city’s lack of progress toward meaningful police reform Porscha Banks, whose brother Dexter Reed was shot and killed in a barrage of police gunfire during a March 21 traffic stop, is among those who are frustrated by Chicago’s lack of progress toward meaningful reform. Four officers fired 96 shots at Reed in 41 seconds, hitting him 13 times, shortly after he shot and wounded an officer, according to a preliminary investigation. The Civilian Office of Police Accountability has not completed its inquiry into the shooting and has not ruled whether the officers’ actions were justified. But reform advocates immediately seized on the incident as an example of how police tactics can lead to dangerous situations for both civilians and officers. “Unless something changes, it is going to keep happening,” Banks said. “They are failing Black people. They are failing all of us.” How Police Helped Stall the Process At its core, the consent decree is designed to fix the shattered relationship between police and Chicago communities. The goal is to increase communication and familiarity by having officers patrol the same geographic area of the city and report to the same supervisor on a consistent basis, instead of moving throughout the city to chase crime. As a first step, the consent decree required CPD to complete a study to determine whether officers are efficiently deployed to stop crime and respond to calls for help. But it took more than five years to authorize the study. And now, more than five months after the Chicago City Council ordered it, the police department acknowledges it has yet to start in earnest. “It is deeply embarrassing,” said Alderperson Matt Martin, who represents the North Side’s 47th Ward and authored the measure requiring the staffing study. He said that police leaders simply ignored the May 21 deadline set by aldermen. The contract to perform the study was not finalized until Oct. 24, according to records obtained by WTTW News. Matt Martin, a Chicago alderperson, wrote a measure requiring the police department to complete a staffing study, but it has yet to get underway. It’s not the first time Chicago has missed an opportunity to align the department with community needs. In 2019, former Los Angeles Police Department Chief Charlie Beck took over as the city’s interim police superintendent for Mayor Lori Lightfoot. Beck’s first order of business was to reassign more than 1,100 detectives and gang intelligence and narcotics officers from citywide teams to work in Chicago’s 22 police districts. The goal was to tie each of those officers directly to one of Chicago’s 77 community areas, a necessary change to make community policing a reality, said Beck, who led the LAPD through its own reform push that was widely hailed as lightning fast and successful. But Beck was only an interim chief and led the CPD for less than six months before Lightfoot replaced him with former Dallas Police Chief David Brown. Brown quickly reversed those changes and reestablished teams of specialized officers that moved throughout the city to address crime hot spots. Beck declined to comment for this article; Brown did not respond to requests for interviews. Brown’s successor, Larry Snelling, who has been at the helm of CPD for more than a year, has not attempted to reorganize the department. While acknowledging that the reform effort is far from complete, Snelling often emphasizes that the department is making progress on most goals laid out in the consent decree. CPD now has written policies addressing just under half the items included in the consent decree. It also has trained a majority of its officers on the new policies involving a little over a third of the items. To be in full compliance, CPD must prove to the monitoring team that officers are following the new policies over a sustained period of time. The most significant victory for the city has been providing officers with annual training on the department’s policies for use of force, the latest report from the monitoring team found. But CPD has yet to reach full compliance on any part of the consent decree that involves community policing, unbiased policing or crisis intervention, records show. Community trust is at the heart of another consent-decree misstep by the department, which for decades has failed to hold its officers accountable for misconduct, according to the federal probe that led to the decree. An early-warning system that would identify problematic officers and get them off the street was drawn up near the beginning of the consent-decree process but has yet to be implemented. Police reform advocates say that Snelling is more committed to reform than his predecessor, but he rarely talks publicly about the consent decree. Snelling declined to be interviewed for this story. As a candidate for mayor, Johnson promised to succeed where his predecessors failed and quickly implement the consent decree. But his main policing focus since taking office has been on reducing the number of people killed and shot in Chicago following a surge that coincided with the COVID-19 pandemic. Homicide rates have dropped in the last two years. Johnson’s latest budget proposal, which closed a projected budget gap of $982 million, slashes the number of employees assigned to implementing the decree by 13%. Questioned by WTTW News at a press conference, Johnson acknowledged Chicago’s long history of police violence against Black Chicagoans. “Unfortunately, we’ve had a trail of destruction over the course of decades where there has been an erosion of the relationship between community and policing,” Johnson said. “What I can say is that it has gotten considerably better from where we started.” Despite such assertions, critics of the reform push contend the mayor is ultimately responsible for the lack of progress during his time in office. “I expected to see much more of the mayor and his administration step up and be present and be at the table,” said Craig Futterman, a professor of law at the University of Chicago who represented one of the coalition of groups that sued the city to force it to agree to judicial oversight. “It’s been left to the police department, and that’s again like the fox guarding the henhouse.” Efforts to assign each officer to a specific part of town where they could get to know the people were reversed when a new police superintendent was appointed. Delays Come Without Consequences in Court What frustrates observers like Futterman is not just that police have dragged their feet; it’s that the formal mechanism for oversight hasn’t led to meaningful progress. For instance, the monitoring team — which is made up of lawyers and public safety specialists — has the power to recommend to the judge that the city and CPD be punished for failing to meet the terms of the consent decree. While it has repeatedly highlighted the slow pace of reforms in its reports, the monitoring team has never demanded sanctions, despite pleas from the coalition of reform groups. Barry Friedman, a professor at New York University who studies police reform and has advised CPD on implementing community policing policies, said he is baffled by this. He cited the monitors’ unique position of power and the money going to their efforts. Chicago taxpayers have paid the monitoring team more than $20.4 million from the beginning of the decree through March 31, 2024, records show. “For that amount of money, you should have a consent decree that is working,” Friedman said. “Five years in, one is entitled to ask what the city is getting out of the consent decree.” Members of the consent decree monitoring team and the judge overseeing the case declined to be interviewed. The spokesperson for the judge and the team said they’re prohibited from doing so under the decree. For its part, the Chicago City Council has not called out the CPD for its failures. The council had vowed to hold hearings about the progress of police reform every three months, but the last hearing took place in February. Alderperson Brian Hopkins, chair of the Public Safety Committee, and Alderperson Chris Taliaferro, chair of the Police and Fire Committee, did not respond to a request for comment about why no hearings have taken place for nine months. Another factor in the slow pace is the structure of the oversight itself. To amend the agreement, all relevant parties must get involved — the state attorney general, the coalition of reform groups and City Hall. They have to exhaust efforts to negotiate a solution before asking the judge to resolve any stalemate. Chicago police swarmed into Anjanette Young’s home in a raid on the wrong address. She often finds peace by visiting the lakefront. The delays and compromises have led to unsatisfying results, as exemplified by the aftermath of the widely criticized raid on the home of Anjanette Young. In 2019, a group of male officers handcuffed Young, a social worker, inside her home while she was naked; they had raided the wrong address. When Young and advocates for reform sought restrictions on raids, they ran into opposition from Lightfoot. They then asked that the consent decree be expanded to impose reforms. That launched unfruitful negotiations between CPD’s leaders, city lawyers, attorneys for the coalition and the attorney general’s office that stretched for two years. U.S. District Judge Rebecca Pallmeyer resolved the dispute by rejecting almost all of the demands made by reform groups. She didn’t add any significant restrictions on police raids and didn’t bar no-knock warrants. Young was bitterly disappointed. Porscha Banks’ quest for reforms in the aftermath of her brother’s killing has been similarly frustrating. Dexter Reed, whose car had tinted windows that made it almost impossible to see inside, was pulled over for a safety belt violation, according to the preliminary investigation. For groups that had been sounding the alarm for years that CPD was aggressively using traffic stops to target Black and Latino drivers, Reed’s death was heartbreaking evidence that such tactics inevitably lead to volatile encounters. Banks has demanded officials ban traffic stops like the one that led to her brother's death. CPD leaders and the monitoring team agreed just two months after Reed’s death to expand the consent decree to include traffic stops, but reform advocates and politicians pushed back. The consent decree is not capable of delivering the kind of urgent change the city needs, they told Pallmeyer; instead, the city’s new police oversight board should set the rules for traffic stops. The request was a rejection of the consent decree process. “I’m frustrated that despite what I have to believe is everyone’s best effort, it has not been good enough,” said Alderperson Daniel La Spata, whose ward is on the Northwest Side. Pallmeyer has not ruled on that request yet. Banks does not particularly care how reform is achieved. She just wants to see signs of hope. “They just need to stop talking about it and fucking doing it,” Banks said. Chicago Alderman Daniel La Spata is frustrated by the lack of progress toward police reform. An Opportunity May Be Slipping Away Inside a room at Corliss High School on Chicago’s Far South Side, a few dozen residents assembled for a community meeting with police in a district that has long struggled with pervasive crime. These were people who care about their neighborhoods, the future of Chicago and the trajectory of policing here. And in interviews, many of them expressed skepticism. Tony Little, who volunteers as a community liaison with CPD, said police today are more responsive to residents’ concerns than in the past, but there’s still room for improvement. “If they could just make sure officers, especially young officers, are aware of the community and get to know the neighborhood, that would build trust,” he said. His wife, Malinda, is more pessimistic. Although the consent decree requires CPD to demonstrate that residents can trust officers to protect and serve them, those are no more than empty promises, she said. “Some of the individuals, they have an attitude that this is just a job. … They don’t care about the people.” Such comments should come as no surprise to the police department or the monitoring team. “By most indications, many Chicagoans are not feeling many of the changes that have been made by the city and the CPD so far,” the monitoring team wrote in its most recent assessment of the city’s progress. The most recent survey conducted by the monitoring team, in 2022, found that 43.2% of Chicagoans were “doubtful” or “very doubtful” that police reform would have a lasting and positive effect, an increase of more than 10 percentage points since 2020. The survey identified a similar decrease in the number of Chicagoans who said the police were doing a “good” or “very good” job in their neighborhood and citywide, while the number of Chicagoans who said the police were doing a “poor” or “very poor” job in the city as a whole grew to 42.7% in 2022, compared with 30.2% in 2020. A billboard for the Chicago Police Memorial Foundation, which provides support for families of officers killed or seriously injured on the job. “Of course there’s a lack of trust in the police,” said Roxanne Smith, a West Side resident and police reform advocate who was part of the coalition that sued the city. “We’re in a new generation and some things still haven’t changed. These things need immediate attention.” Chicago Inspector General Deborah Witzburg, whose office was the first, and so far only, city department to fully comply with its obligations under the consent decree, said the reform effort is at a tipping point, much like a bicycle ridden too slowly. “The risk is that you tip over for a lack of forward momentum,” Witzburg said. Anjanette Young is now among those in Chicago who feel the tipping point is past. “The consent decree is not the answer,” Young said. “It is just oversight on paper. We need a plan B. We need to do something else.” Do You Have a Tip for ProPublica? Help Us Do Journalism. Jared Rutecki of WTTW News contributed data reporting.

— Texas Lawmakers Push for New Exceptions to State’s Strict Abortion Ban After the Deaths of Two Women

 

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by Cassandra Jaramillo, Kavitha Surana, Lizzie Presser and Ziva Branstetter ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published. Register for our Nov. 21 virtual discussion, where our reporters take you inside ProPublica’s reproductive health coverage. Weeks after ProPublica reported on the deaths of two pregnant women whose miscarriages went untreated in Texas, state lawmakers have filed bills that would create new exceptions to the state’s strict abortion laws, broadening doctors’ ability to intervene when their patients face health risks. The legislation comes after the lawmaker who wrote one of Texas’ recent abortion bans wrote an op-ed in the Houston Chronicle defending the current exceptions as “plenty clear.” But more than 100 Texas OB-GYNs disagree with his position. In a public letter, written in response to ProPublica’s reporting, they urged changes. “As OB-GYNs in Texas, we know firsthand how much these laws restrict our ability to provide our patients with quality, evidence-based care,” they said. Texas’ abortion ban threatens up to 99 years in prison, $100,000 in fines and loss of medical license for doctors who provide abortions. The state’s health and safety code currently includes exceptions if a pregnant woman “has a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced.” A separate exception exists that provides doctors with some legal protections if they perform an abortion for an ectopic pregnancy or in cases when a patient’s water breaks. The bills, filed in the state House and Senate last week, create new health exceptions. They would allow doctors to induce or perform abortions necessary to preserve the mental or physical health of a patient, including preserving the patient’s fertility. Doctors could also provide abortions in cases where the fetus had an anomaly that would make it unable to survive outside the womb or able to survive only with “extraordinary medical interventions.” State Rep. Donna Howard, who filed the bill in the Texas House, said ProPublica’s recent reporting adds to evidence that the current legislation is a threat to the safety of pregnant women in Texas and increases the urgency to make changes. “This is my reaction,” she said. “It’s one of extreme sadness and disbelief that we are at a point where we are allowing women to die because we haven’t been able to clarify the law,” she said. Investigations by ProPublica have found that at least four women, including two in Texas, died after they could not access timely reproductive care in states that ban abortion. There are almost certainly others. In Houston, Josseli Barnica died in September 2021, just days after the state’s six-week abortion ban went into effect. Barnica, 28, was miscarrying at 17 weeks, but doctors did not offer her the medical standard of care — to speed up labor or empty her uterus — for 40 hours, until after the fetal heartbeat had stopped. Her husband said she was told it would be a “crime” to intervene. This left her seriously exposed to infection, experts told ProPublica. Three days later, she died from an infection, leaving behind a young daughter. Her death was “preventable,” according to more than a dozen medical experts who reviewed a summary of her hospital and autopsy records at ProPublica’s request; they called her case “horrific,” “astounding” and “egregious.” The doctors involved in Barnica’s care at HCA Houston Healthcare Northwest did not respond to multiple requests for comment on her case. In a statement, HCA Healthcare said, “Our responsibility is to be in compliance with applicable state and federal laws and regulations,” and that physicians exercise their independent judgment. The company did not respond to detailed questions about its policy. Nevaeh Crain, 18, made three trips to emergency rooms in rural southeast Texas last year for vomiting and abdominal pain, waiting 20 hours before doctors admitted her. Doctors insisted on two ultrasounds to document “fetal demise” as Crain’s vital signs grew more alarming. By the time they rushed to operate, sepsis had spread throughout her body and her organs failed. Experts who reviewed a summary of Crain’s medical records for ProPublica said it may have been possible to save both the teenager and her pregnancy if she had been admitted earlier for close monitoring and continuous treatment. Doctors involved in Crain’s care did not respond to several requests for comment. The two hospitals — Baptist Hospitals of Southeast Texas and Christus Southeast Texas St. Elizabeth — declined to answer questions about her treatment. What Is A ‘Medical Emergency’? The cases highlight how abortion laws can interfere with maternal health care, even for those who want to have a child. Much of the confusion hinges on the definition of a “medical emergency.” In many cases, women experiencing a miscarriage or a pregnancy complication may be stable. But requiring them to wait for an abortion until signs of sickness are documented or the fetal cardiac activity stops violates the professional standard of care, putting them at higher risk that a life-threatening infection or other complications could develop and be harder to control. Attaching criminal penalties to abortion procedures has led to a chilling effect, making some physicians more hesitant to care for patients experiencing pregnancy complications in general, doctors told ProPublica. After ProPublica’s reporting, state Sen. Bryan Hughes, the author of one of the state’s abortion bans, wrote an op-ed in the Houston Chronicle. He said the women were “wrongfully denied care,” but he blamed media outlets including ProPublica for publishing stories that made doctors “afraid to treat the women.” “When a mother’s life or major bodily function are in jeopardy, doctors are not only allowed to act, but they are legally required to act,” he wrote. “And contrary to what ProPublica would have us believe, Texas law does not prevent them from aiding their patients and saving their lives.” He argued that the medical emergency exceptions in Texas’ new abortion bans use the same language as abortion laws from the 1800s. “We did not want to risk confusing medical providers by changing the definition,” he said. But that language was written at a time when many more women died in pregnancy and childbirth — before medical innovations such as suction devices to empty the uterus and lower the risk of sepsis helped make maternal care vastly safer. Hughes is a licensed attorney who lists no medical training on his Senate webpage. ProPublica repeatedly requested an interview with Hughes to further understand his interpretation of how doctors should apply the law in specific scenarios. He did not respond to a detailed list of questions and requests to comment for this article. There is no state office that doctors can call to make sure their decisions in miscarriage cases do not violate the law. Yet Texas Attorney General Ken Paxton has made it clear he will not hesitate to prosecute doctors if the abortions they provide do not meet his interpretation of a medical emergency. Last year, a Dallas woman asked a court for approval to end her pregnancy because her fetus was not viable and she faced health risks if she carried it to term. Paxton fought to keep her pregnant, arguing that her doctor hadn’t proved her situation was an emergency, and threatened to prosecute anyone who helped her. The courts sided with him, and the woman traveled out of state for the abortion. Warnings From the Medical Community After reading ProPublica’s stories, 111 Texas OB-GYNs signed a letter placing blame for the deaths squarely on state abortion law that “does not allow us as medical professionals to do our jobs.” “The law does not allow Texas women to get the lifesaving care they need and threatens physicians with life imprisonment and loss of licensure for doing what is often medically necessary for the patient’s health and future fertility,” they wrote. Their letter adds to years of warnings from the medical community and from patients themselves: 20 women who were denied abortions for miscarriages and high-risk pregnancy complications joined a lawsuit against the state. They asked the courts to clarify the law’s exceptions, but the Texas Supreme Court refused. Dr. Austin Dennard, a Dallas OB-GYN, is one of the women represented in the lawsuit. She has seen the consequences of the laws from both sides. As a doctor, she has to call a hospital lawyer any time she wants to provide abortion care to patients facing emergencies. She also was personally affected when she was pregnant and learned her fetus had anencephaly — a condition in which the brain and skull do not fully develop. Texas’ law would have forced her to carry to term, putting her through more health risks and making her wait longer to try again for another pregnancy, so she traveled out of state for an abortion. She said lawmakers have failed for years to listen to the doctors who have to navigate these laws. In response to Hughes’s op-ed, she said: “We’re the ones with their boots on the ground. We’re the ones taking care of these patients, and we’re the ones telling you it is very nebulous and confusing, and we’re all terrified,” Dennard said. State Sen. Carol Alvarado, who filed the Senate version of the bill, said she worked with physicians who represent major medical organizations to draft the exceptions. “This bill is not about politics — it’s about ensuring that doctors can provide life-saving care without hesitation or fear of prosecution,” Alvarado said. “This bill is about restoring trust in our health care system and ensuring that no one has to endure the heartbreak of wondering whether more timely medical care could have saved their loved one.” Molly Duane, a lawyer with the Center for Reproductive Rights who represents women who are suing the state, said the bill, if passed, could help save some lives, but cautioned that without removing the threat of criminal penalties, some doctors might still deny care. “Exceptions don’t work in reality, no matter how clear they are,” Duane said. “We’ve seen hospitals turn away Texans facing life-threatening ectopic pregnancies, even though providing an abortion in these cases is legal under state law. As long as doctors face the threat of jail time and loss of license, they will be terrified to provide care.” Where the Medical Board Stands In his op-ed, Hughes said that the Texas Medical Board has issued guidance that an emergency doesn’t need to be “imminent” to keep physicians “from doing what is medically necessary” under the law. But Dennard, echoing many doctors who spoke to ProPublica, said the board was “incredibly unhelpful.” The guidance instructed doctors on ways they could document why the abortion was necessary and still left open the question of how lawyers and courts might interpret “medically necessary.” “None of them want to face the reality of the situation, which is that the laws that were put in place are directly harming pregnant people, and it is their fault,” she said. The board, whose members are appointed by the governor, issued the guidance earlier this year after declining for more than two years to respond to questions about how the law should be interpreted, even as patients facing health risks publicly shared their stories of being denied abortion care and journalists asked the board to respond. The board issued guidance only after the Texas Supreme Court directed it to do so. The president of the board, Dr. Sherif Zaafran, said in an interview that it would have been “inappropriate” to weigh in without that direction. “Somebody could easily sue the medical board and say, ‘You shouldn’t have done this,’ and then we’d be in limbo also, and that could have actually dragged things out even longer.” In the meantime, women’s lives were left in the balance. Last year, lawmakers created a new exception for two conditions that the original law had not addressed: ectopic pregnancies and previable premature rupture of membranes, when a patient’s water breaks too early, causing a miscarriage. But the exception is small comfort, some doctors say. It’s written in a way that only allows doctors to make an “affirmative defense” for a legal penalty. An affirmative defense, if found credible by a judge or jury, means the defendant wouldn’t be liable for the alleged acts even if he or she committed them. “Nobody wants to be that poster child,” said Dr. Robert Carpenter, a Houston OB-GYN who signed the letter. The Houston Chronicle also published 10 letters to the editor in response to Hughes’ editorial, eight of them arguing against his claim that the Texas abortion ban is clear. Among them was Trevor M. Bibler, an assistant professor at Baylor College of Medicine’s Center for Medical Ethics and Health Policy. “If doctors weren’t threatened with jail time and accused of murder just for upholding a basic standard of care, then these tragedies wouldn’t happen,” he wrote. “The possibility that the cause of these tragedies are the doctors who read the writings of the left-wing media rather than the law is absurd, disingenuous and not at all convincing. His law, not the media, is the cause.” Howard said she’s hopeful the Texas Legislature will listen to the medical community and the public and create health and other exceptions in the abortion laws. She also pointed out that President-elect Donald Trump has said that he supports exceptions in cases of rape and incest, which Texas’ ban does not include. She filed a separate bill to propose such exceptions. “It’s really just unbelievable, from a state that considers itself to be pro-life, that these obstacles will be put in place that are the antithesis of pro-life,” Howard said. As other states assess whether to ban or protect abortion rights, Texas is providing an example of what to expect. In Wisconsin, state Supreme Court Justice Jill Karofsky recently pressed an attorney for the state to explain whether an abortion ban on the books from 1849 would stop doctors from providing abortion care to patients who were experiencing miscarriages if the court allowed it to go into effect. Describing Barnica’s case, she asked for clarification: “She suffered an infection that killed her because medical providers were unwilling or unable to give her the health care that she needed,” she said. “That’s a scenario that could easily — and perhaps has easily — play out here in Wisconsin under your interpretation of [the law], couldn’t it?” “I’m not sure, Justice Karofsky,” the attorney responded. “I’m not a doctor.”

— Finding Focus: How a Visual Storyteller Gets the Right Image — and the Right Tone

 

at 11/19/24 4:00am

by Sarahbeth Maney ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up for Dispatches, a newsletter that spotlights wrongdoing around the country, to receive our stories in your inbox every week. Last month, reporter Anna Clark and I hosted an in-person photo gallery and group discussion about what motivated us to tell stories of Flint, Michigan, residents 10 years after the start of the water crisis and to talk about how we work to understand the communities we serve. As a visual fellow at ProPublica, I’m focused on documenting the lives of people in our stories through photography. Throughout history, photography has been a powerful tool for recording moments in time, providing visual evidence and evoking emotions that urge us to understand experiences outside of our own. Here are suggestions for aspiring visual storytellers who may find themselves in similar situations. Ask “Why Does This Story Need to be Told?” Anna and I previously worked in Flint in different capacities: I interned as a photojournalist at the Flint Journal; Anna wrote a book, “The Poisoned City: Flint’s Water and the American Urban Tragedy.” To us, Flint is not just a news story, it’s a complex place full of real people who have been and continue to be denied adequate resources and support. We wanted the public to know that generations of Flint residents still live with physical and psychological challenges. By sharing what Flint residents think accountability would look like, we were able to show how many feel betrayed by the failure to hold anyone criminally responsible. They also remain frustrated by how long it’s taking to fix the local water system and the lingering mental wounds that may never be repaired. The photo essay gave a glimpse into the experience of three residents and how their present-day concerns, fears and decisions are shaped by the water crisis. Over about four months, I made frequent visits to Flint — stopping by nonprofits, churches, after-school programs and other places that are part of everyday life. I spoke with incredibly kind people. Some wanted to help me; others were hesitant, usually because they wanted to move on or felt things would never change. Robert McCathern, Teagan Medlin and Jacquinne Reynolds granted me a great deal of trust. They were able to open up and make themselves vulnerable because of their commitment to cultivating change for future generations. I tried to represent that through the environment in the photographs. First image: Teagan Medlin, 25, holds her newborn baby, Audrina, at a recovery house where she lives temporarily. Second image: Pastor Robert McCathern approaches Tayler Armstrong, 9, and his grandmother Patricia Stewart-Burton while preaching during a Sunday service at Joy Tabernacle Church. Be Sincere With Your Approach During the discussion at the visual storytelling event at Totem Books in Flint, we asked residents to ponder what type of stories resonate with them most, what questions they wish someone would ask them and who is one person they would like to interview. We discovered a common thread of wanting to feel more connected as neighbors and fellow human beings. Then we flipped the exercise to challenge ourselves as journalists and receive questions from residents. “Why Flint?” one participant asked us. We told her how we’d come to admire the community and wanted to present a multidimensional view of it to readers. “Something about this place seems to get in people’s blood,” the participant told us, and it does seem that for a city of its size, Flint has attracted a disproportionate number of storytellers — even before the water crisis. And yet, some residents still wonder: What has changed? Over the past decade, Flint residents have been in the public eye not by choice, but as a result of a disaster created and prolonged by public officials. So what does that mean for us and our responsibility as storytellers? Being in the business of transparency requires us to also be transparent with the communities we document. Without transparency, it’s hard to build mutual trust, especially in communities that have faced betrayal and have had little control over how their stories are shared with the world. During the early stages of the project, before lifting my camera to make any photos, I listened to Flint residents and learned about their stories, then let what they told me naturally guide the photos I made. Early on, I also stressed that I believe their stories are important to share because people outside of Flint should know that for many Flint residents, the crisis is still not over. I also should note that our stories go through many layers of revisions and fact-checking. From beginning to end, I tried to communicate how the project was developing and made sure that our sources were aware of how the story would be framed, how they would be portrayed and how they would be quoted. Once the story was published, I followed up to gauge how they were feeling, and later made them aware that photographs of them would appear at our galley in Flint. Jacquinne Reynolds, left, and Robert McCathern, who were both featured in ProPublica’s coverage, attend ProPublica’s live visual storytelling event. (Rocio Ortega/ProPublica) Look for Connection and Insight The beauty of visual storytelling is that the story can always change shape. Let go of any assumptions and let the story lead you where it may. Anna and I learned so much by taking this approach. We found that, after a decade, many residents are still waiting for the change they want to see. The flood of the resources and attention Flint initially received has dwindled. But one of the reasons I wanted to revisit this story is because of the people I’ve met and will continue to meet. The city has introduced me to people who care deeply about their community and embrace one another with generosity, care and compassion. And I learned about a host of local programs, from the Flint Rx Kids program that provides financial support for mothers to the McKenzie Patrice Croom Flint Community Water Lab, which trains youth to give back and provides free water testing. Although communities like Flint shouldn’t need to be resilient, we can learn from their empathy, advocacy and support for one another during hard times. My job is to make photographs, but a big part of the fulfillment I get is from making connections. We closed out our event in Flint by making photographs of attendees that they could have as keepsakes. One woman, who told me she had recently been displaced from her home, said she was going to email the photos of herself to her grandchildren who live in another state. It reminded me that photographs are invaluable in many facets of our lives. They keep us connected.

— How UnitedHealth’s Playbook for Limiting Mental Health Coverage Puts Countless Americans’ Treatment at Risk

 

at 11/19/24 3:00am

by Annie Waldman ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published. For years, it was a mystery: Seemingly out of the blue, therapists would feel like they’d tripped some invisible wire and become a target of UnitedHealth Group. A company representative with the Orwellian title “care advocate” would call and grill them about why they’d seen a patient twice a week or weekly for six months. In case after case, United would refuse to cover care, leaving patients to pay out-of-pocket or go without it. The severity of their issues seemed not to matter. Around 2016, government officials began to pry open United’s black box. They found that the nation’s largest health insurance conglomerate had been using algorithms to identify providers it determined were giving too much therapy and patients it believed were receiving too much; then, the company scrutinized their cases and cut off reimbursements. By the end of 2021, United’s algorithm program had been deemed illegal in three states. But that has not stopped the company from continuing to police mental health care with arbitrary thresholds and cost-driven targets, ProPublica found, after reviewing what is effectively the company’s internal playbook for limiting and cutting therapy expenses. The insurer’s strategies are still very much alive, putting countless patients at risk of losing mental health care. Optum, its subsidiary that manages its mental health coverage, is taking aim at those who give or get “unwarranted” treatment, flagging patients who receive more than 30 sessions in eight months. The insurer estimates its “outlier management” strategy will contribute to savings of up to $52 million, according to company documents. The company’s ability to continue deploying its playbook lays bare a glaring flaw in the way American health insurance companies are overseen. While the massive insurer — one of the 10 most profitable companies in the world — offers plans to people in every state, it answers to no single regulator. The federal government oversees the biggest pool: most of the plans that employers sponsor for their workers. States are responsible for plans that residents buy on the marketplace; they also regulate those funded by the government through Medicaid but run through private insurers. In essence, more than 50 different state and federal regulatory entities each oversee a slice of United’s vast network. So when a California regulator cited United for its algorithm-driven practice in 2018, its corrective plan applied only to market plans based in California. When Massachusetts’ attorney general forced it to restrict the system in 2020 for one of the largest health plans there, the prosecutor’s power ended at the state line. And when New York’s attorney general teamed up with the U.S. Department of Labor on one of the most expansive investigations in history of an insurer’s efforts to limit mental health care coverage — one in which they scored a landmark, multimillion-dollar victory against United — none of it made an ounce of difference to the millions whose plans fell outside their purview. It didn’t matter that they were all scrutinizing the insurer for violating the same federal law, one that forbade companies from putting up barriers to mental health coverage that did not exist for physical health coverage. For United’s practices to be curbed, mental health advocates told ProPublica, every single jurisdiction in which it operates would have to successfully bring a case against it. “It’s like playing Whac-A-Mole all the time for regulators,” said Lauren Finke, senior director of policy at the mental health advocacy group The Kennedy Forum. The regulatory patchwork benefits insurance companies, she said, “because they can just move their scrutinized practices to other products in different locations.” Now internal documents show that United, through its subsidiary Optum, is targeting plans in other jurisdictions, where its practices have not been curbed. The company is focused on reducing “overutilization” of services for patients covered through its privately contracted Medicaid plans that are overseen by states, according to the internal company records reviewed by ProPublica. These plans cover some of the nation’s poorest and most vulnerable patients. Internal company documents obtained by ProPublica reveal the strategy by Optum, a UnitedHealth Group subsidiary, to scrutinize and reduce outpatient mental health care. (Obtained by ProPublica) United administers Medicaid plans or benefits in about two dozen states, and for more than 6 million people, according to the most recent federal data from 2022. The division responsible for the company’s Medicaid coverage took in $75 billion in revenue last year, a quarter of the total revenue of its health benefits business, UnitedHealthcare. UnitedHealthcare told ProPublica that the company remains compliant with the terms of its settlement with the New York attorney general and federal regulators. Christine Hauser, a spokesperson for Optum Behavioral Health, said its process for managing health care claims is “an important part of making sure patients get access to safe, effective and affordable treatment.” Its programs are compliant with federal laws and ensure “people receive the care they need,” she said. One category of reviews is voluntary, she added; it allows providers to opt out and does not result in coverage denials. ProPublica has spent months tracking the company’s efforts to limit mental health costs, reviewing hundreds of pages of internal documents and court records, and interviewing dozens of current and former employees as well as scores of providers in the company’s insurance networks. One therapist in Virginia said she is reeling from the costly repercussions of her review by a care advocate. Another in Oklahoma said she faces ongoing pressure from United for seeing her high-risk patients twice a week. “There’s no real clinical rationale behind this,” said Tim Clement, the vice president of federal government affairs at the nonprofit group Mental Health America. “This is pretty much a financial decision.” Former care advocates for the company told ProPublica the same as they described steamrolling providers to boost cost savings. One said he felt like “a cog in the wheel of insurance greed.” Under ALERT The year 2008 was supposed to mark a revolution in access to mental health care. For decades, United and other insurers had been allowed to place hard caps on treatment, like the number of therapy sessions. But after Congress passed the ​​Mental Health Parity and Addiction Equity Act, insurers could no longer set higher copays for behavioral services or more strictly limit how often patients could get them; insurers needed to offer the same access to mental health care as to physical care. The law applied to most plans, regardless of whether federal or state regulators enforced it. As access to services increased, so did insurers’ costs. Company documents show United was keenly aware of this threat to its bottom line. But there was a loophole: Insurers could still determine what care was medically necessary and appropriate. Doing so case by case would be expensive and time-consuming. But United already had a tool that could make it easier to spot outliers. Called ALERT, the algorithmic system was created years earlier to identify patients at risk of suicide or substance use. The company redeployed it to identify therapy overuse. Company and court filings reveal that ALERT comprised a suite of algorithms — totaling more than 50 at one point — that analyzed clinical and claims data to catch what it considered unusual mental health treatment patterns, flagging up to 15% of the patients receiving outpatient care. The algorithms could be triggered when care met the company's definition of overly frequent, such as when patients had therapy sessions twice a week for six weeks or more than 20 sessions in six months. Therapists drew scrutiny if they provided services for more than eight hours a day, used the same diagnosis code with most clients or worked on weekends or holidays — even though such work is often necessary with patients in crisis. The system was originally designed to save lives, said Ed Jones, who co-developed the algorithm program when he worked as an executive at PacifiCare Behavioral Health, which later merged with United. Using ALERT to limit or deny care was “perverting a process that was really pretty good,” he told ProPublica. Once patients or therapists were flagged, care advocates, who were licensed practitioners, would “alert” providers, using intervention scripts to assess whether care was medically necessary. The calls felt like interrogations, therapists told ProPublica, with the predetermined conclusion that their therapy was unnecessary or excessive. ProPublica spoke with seven former employees from Optum who worked with the ALERT system from 2006 through 2021. They requested not to be named in order to speak freely, some citing fears of retaliation. Even though the reviews were purportedly intended to identify cases where care was inappropriate or violated clinical standards, several former care advocates said these instances were rare. Instead, they questioned care if it passed an allotted number of sessions. “It had to be really extreme to help the client be able to continue with the care,” said one former care advocate, who was troubled by the practice. “Not everyone with depression is going to be suicidal, but they still need therapy to support them.” The advocates often overruled a provider’s expertise, a former team manager said. “There was always this feeling, ‘Why are we telling clinicians what to do?’” he said. “I didn’t think it was OK that we were making decisions like that for people.” If the advocates found fault with therapists’ explanations — or couldn’t persuade them to cut back on care — they elevated the case to a peer-to-peer review, where a psychologist could decide to stop covering treatment. According to court records, regulators alleged United doled out bonuses to care advocates based on productivity, such as the number of cases handled, and pushed workers to reduce care by modifying a therapist’s treatment or referring therapists to peer review in 20% of assigned cases. At one point, care advocates were referring 40%, regulators alleged in court filings. Each peer review tended to last less than 12 minutes, offering providers little time to prove they had a “clear and compelling” reason to continue treatment. Former advocates described feeling like parts of a machine that couldn’t stop churning. “Literally, we had to tell the company when we were going to the restroom,” one advocate said, “and so you would do that and come back and your manager would say, ‘Well, that was a little long.’” The former workers told ProPublica they were pressured to keep calls brief; the rush added to the tension as therapists pushed back in anger. “There was an expiration date on those jobs because there was such a pull on you emotionally,” one former care advocate said. Three of them quit, they told ProPublica, citing damage to their own mental health. New York and federal regulators started looking into the practice around 2016. A California regulator and the Massachusetts attorney general’s office soon followed. All concluded that while United may not have set official caps on coverage, it had done so in practice by limiting mental health services more stringently than medical care. Therefore, it was breaking the federal parity law. While California and Massachusetts got United to scale back its use of ALERT within their jurisdictions, New York was able to stretch its reach by teaming up with the U.S. Department of Labor to investigate and sue the insurer. Together, they found that from 2013 through 2020, United had denied claims for more than 34,000 therapy sessions in New York alone, amounting to $8 million in denied care. By using ALERT to ration care, United calculated that it saved the company about $330 per member each time the program was used, the regulators said in court records. Cut off from therapy, some patients were hospitalized. The regulators did not specifically address in court filings whether the treatment denials met medical guidelines. The company, which denied the allegations and did not have to admit liability or wrongdoing, agreed to pay more than $4 million in restitution and penalties in 2021. Notably, it also agreed to not use ALERT to limit or deny care. The final terms of the settlement, however, only applied to plans under New York and federal regulators’ jurisdiction. Rebranded Reviews ProPublica has reviewed documents behind Optum’s ALERT and Outpatient Care Engagement programs. (Obtained by ProPublica) In the three years since the settlement, the company has quietly rebranded ALERT. The Outpatient Care Engagement program continues to use claims and clinical data to identify patients with “higher-than-average intensity and/or frequency of services,” according to internal company documents, to ensure “that members are receiving the right level of care at the right time.” Up to 10% of cases are flagged for scrutiny, public company documents show. If care advocates take issue with a case, they can elevate it to a peer review, which can result in a denial. The advocates’ script is nearly the same as the one used for ALERT. Care advocates are even calling therapists from the same phone number. Overseen by the former director of ALERT, the team’s more than 50 care advocates are tasked with ensuring that “outpatient care follows clinical and coverage guidelines” and “reduces overutilization and benefit expense when appropriate,” according to company documents. The team conducts thousands of reviews each month, targeting plans that are mostly regulated by states and fall outside of the jurisdictions of previous sanctions. Patients impacted include workers with fully insured plans and people covered by Medicaid. Nearly 1 in 3 adults in the Medicaid program has a mental health condition, and a fifth of its members have a substance use disorder. “This is probably disproportionately sweeping up those that are most distressed, most ill and most in need of care,” Clement said. Private insurers that manage Medicaid plans, also known as managed care organizations, are often paid a fixed amount per person, regardless of the frequency or intensity of services used. If they spend less than the state’s allotted payment, plans are typically allowed to keep some or all of what remains. Experts, senators and federal investigators have long raised concerns that this model may be incentivizing insurers to limit or deny care. “They basically manage the benefits to maximize their short-term profit,” said David Lloyd, chief policy officer with the mental health advocacy group Inseparable and an expert on state-level mental health parity laws. State regulators are supposed to be making sure private insurers that manage Medicaid plans are following the mental health parity laws. But this year, a federal audit found that they were failing to do so. “They are not well designed to essentially be watchdogs,” Lloyd said. “There’s very little accountability. Insurers can run roughshod over them.” The internal records reviewed by ProPublica show the plans and geographic areas now scrutinized by the rebranded program. The team conducts two types of reviews, those considered “consultation” and those that question medical necessity. For the first kind, the team flags members with high use (more than 30 sessions in eight months) or high frequency (twice-a-week sessions for six weeks or more) to engage their providers in “collaborative” conversations about the treatment plan. Company documents reveal striking similarities between Optum’s ALERT and Outpatient Care Engagement programs. (Obtained by ProPublica) Internal records indicate that the company uses this “consultation” model for about 20 state Medicaid programs, including Washington, Minnesota, Mississippi, Virginia and Tennessee. The company is also deploying the program with Medicaid plans in Massachusetts and, as of the fourth quarter of this year, New York, which are outside of the jurisdiction of the earlier state agreements. While the Department of Labor does not have jurisdiction over Medicaid, a spokesperson said it “would be concerned about ‘consultation’ reviews that are conducted in a way that violates [the mental health parity act].” The department did not comment on whether it was investigating the insurer, as a matter of agency policy. Company records show Optum is applying its more stringent review method, questioning medical necessity, to psychological testing services and a type of therapy to treat children with autism, known as applied behavior analysis, for people with Medicaid coverage in about 20 states. It is doing the same for routine therapy for its members with dual Medicare-Medicaid plans in about 18 states and Washington, D.C. Such plans are largely overseen by the Centers for Medicare & Medicaid Services, the federal agency responsible for overseeing both Medicare and Medicaid programs. While the dual plans are not subject to federal mental health parity laws, a CMS spokesperson said the agency was taking steps to “ensure that people enrolled in these plans have timely access to care.” The internal company records reveal that Optum has continued to use quotas with its medical necessity reviews, setting productivity targets for how many cases its employees scrutinize. According to records from this year, the target was 160 reviews per employee, which the company exceeded with 180 reviews per employee. Several state agencies that oversee Medicaid programs, including those in New York and Massachusetts, told ProPublica that they follow federal mental health parity laws and have strong monitoring practices to ensure that the private insurers that manage benefits are in compliance. Katie Pope, a spokesperson for Washington’s Health Care Authority, told ProPublica that ALERT was discontinued three years ago but did not directly respond to questions about the current iteration of the program. Scott Peterson, a spokesperson for Minnesota’s Human Services Department, said that while United’s policies were compliant with federal parity laws, the company’s contract would expire at the end of the year. Last May, the state blocked for-profit insurers, like United, from participating in its Medicaid program. Amy Lawrence, a spokesperson for Tennessee’s Medicaid program, said United’s outlier review practice entailed “voluntary collaborative conversations on best practices” and did not question the medical necessity of services nor result in denials of treatment. “There are no adverse consequences for providers who elect not to participate,” she said. Mississippi’s, Louisiana’s and Virginia’s state Medicaid agencies did not respond to ProPublica’s questions. (Read all state responses.) In response to ProPublica’s questions about its oversight of state Medicaid programs, a spokesperson for CMS said it was “actively engaged with states and other stakeholders to improve compliance and oversight of parity requirements.” (Read the full responses of federal agencies.) Hauser, the spokesperson for Optum, told ProPublica that the company is committed to working with state Medicaid programs to ensure access to effective and necessary care. She said its new program was separate from ALERT, which she said had been discontinued. (She did not explain why the original ALERT program appears to be still operational in Louisiana, according to a recent company manual.) When the team conducts medical necessity reviews, she said, they are compliant with mental health parity law. (Read the company’s full response.) Ringing Phones Therapists who underwent the reviews told ProPublica that they felt the practice was intended to discourage them from providing necessary care, interfering with their ability to treat their patients. This year, Oklahoma therapist Jordan Bracht received multiple calls from the team related to the care of two patients, who were both on United’s dual Medicare-Medicaid plan. “If we don’t hear back from you within a week,” a care advocate said in a voice message, “then the case will be forwarded to the peer review process to make a decision based upon the information available.” Both of Bracht’s patients had diagnoses of dissociative identity disorder and required therapy twice a week. “Many of my clients are suicidal and would be hospitalized if I had to cut down the care,” Bracht told ProPublica. Reviewers pushed for end dates for their therapy. “They really wanted me to nail down a discharge date,” she said. “We are really trying to keep this person alive, and it felt like they were applying their one-size-fits-all model. It doesn’t feel right.” Virginia therapist Chanelle Henderson got a voice message in 2022 from the same number about her care of a patient with state Medicaid coverage. “We’d like to complete a clinical review,” the caller said. “We’ll follow up with one more call before the case is referred to the peer review process.” When Henderson called back, a reviewer informed her that her practice had been flagged for providing longer sessions. Henderson tried to explain they were necessary to treat trauma, her practice’s specialty. “She had no trust in me as a clinician,” Henderson said of the reviewer. The inquiry progressed to questions about other patients, including one who was being treated by a therapist under Henderson’s supervision. The reviewer said that the company did not cover sessions of supervised therapists at practices with less than 12 therapists. At the time, Henderson’s practice had eight. The reviewer elevated her case, triggering an aggressive audit of the entire practice going back two years that threatened to shut it down. Citing issues with supervision and longer sessions, United demanded the practice pay back about $20,000 for services it had already provided. Henderson and her business partner pushed back, hiring a biller to help submit hundreds of pages of additional notes and documentation. They also pointed out that during the audit, the company had even changed its policy to allow smaller practices to supervise therapists. United eventually decreased the penalty by half. Neither Optum, United nor Virginia’s Medicaid program directly responded to ProPublica’s questions about the case. Bethany Lackey, who co-founded the practice with Henderson, said that the reviews felt like a pretext for additional scrutiny. “It’s all set up in order to catch someone doing something so that they can take back payments,” she said. “We all know that behind it is this more malicious intent of getting their money back.” Bethany Lackey, left, and Chanelle Henderson (Kate Medley for ProPublica) Maya Miller contributed reporting. Kirsten Berg contributed research.

— Segregation Academies Across the South Are Getting Millions in Taxpayer Dollars

 

at 11/18/24 3:00am

by Jennifer Berry Hawes and Mollie Simon ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up for Dispatches, a newsletter that spotlights wrongdoing around the country, to receive our stories in your inbox every week. Private schools across the South that were established for white children during desegregation are now benefiting from tens of millions in taxpayer dollars flowing from rapidly expanding voucher-style programs, a ProPublica analysis found. In North Carolina alone, we identified 39 of these likely “segregation academies” that are still operating and that have received voucher money. Of these, 20 schools reported student bodies that were at least 85% white in a 2021-22 federal survey of private schools, the most recent data available. Those 20 academies, all founded in the 1960s and 1970s, brought in more than $20 million from the state in the past three years alone. None reflected the demographics of their communities. Few even came close. Northeast Academy, a small Christian school in rural Northampton County on the Virginia border, is among them. As of the 2021-22 survey, the school’s enrollment was 99% white in a county that runs about 40% white. Every year since North Carolina launched its state-funded private school voucher program in 2014, the academy has received more and more money. Last school year, it received about $438,500 from the program, almost half of its total reported tuition. Northeast is on track to beat that total this school year. Vouchers play a similar role at Lawrence Academy, an hour’s drive south. It has never reported Black enrollment higher than 3% in a county whose population hovers around 60% Black. A small school with less than 300 students, it received $518,240 in vouchers last school year to help pay for 86 of those students. Farther south, Pungo Christian Academy has received voucher money every year since 2015 and, as of the last survey, had become slightly more white than when the voucher program began. It last reported a student body that was 98% white in a county that was 65% white. Segregation academies that remain vastly white continue to play an integral role in perpetuating school segregation — and, as a result, racial separation in the surrounding communities. We found these academies benefiting from public money in Southern states beyond North Carolina. But because North Carolina collects and releases more complete data than many other states, it offers an especially telling window into what is happening across this once legally segregated region where legislatures are rapidly expanding and adopting controversial voucher-style programs. Called Opportunity Scholarships, North Carolina’s voucher program launched in 2014. At first, it was only for low-income families and had barely more than 1,200 participants. Then last fall, state lawmakers expanded eligibility to students of all income levels and those already attending private school, a move that sparked furious debate over the future of public education. “We are ensuring that every child has the chance to thrive,” Republican Rep. Tricia Cotham argued. But Democratic Rep. Julie von Haefen pointed to vouchers’ “legacy of white supremacy” and called the expansion “a gross injustice to the children of North Carolina.” So many students flocked to the program that the state now has a waitlist of about 54,000 children. Paying for all of them to receive vouchers — at a cost of $248 million — would more than double the current number of participants in the program. Republicans in the General Assembly, along with three Democrats, passed a bill in September to do just that. Gov. Roy Cooper, a Democrat, vetoed the measure. But the GOP supermajority is expected to override it before the year’s end, perhaps as early as Nov. 19. Opportunity Scholarships don’t always live up to their name for Black children. Private schools don’t have to admit all comers. Nor do they have to provide busing or free meals. Due to income disparities, Black parents also are less likely to be able to afford the difference between a voucher that pays at most $7,468 a year and an annual tuition bill that can top $10,000 or even $20,000. And unlike urban areas that have a range of private schools, including some with diverse student bodies, segregation academies are the only private schools available in some rural counties across the South. Josh Cowen, a professor of education policy at Michigan State, studies these barriers and sees where vouchers fall short for some: “Eligibility does not mean access.” Rural roads and cotton fields surround Lawrence Academy in Merry Hill, North Carolina. The school, which opened in majority-Black Bertie County in 1968, has never reported Black enrollment higher than 3%. The area is part of the region’s Black Belt, where rich soils fueled cotton plantations. (Greg Kahn, special to ProPublica) Of the 20 vastly white segregation academies we identified that received voucher money in North Carolina, nine were at least 30 percentage points more white than the counties in which they operate, based on 2021-22 federal survey and census data. Otis Smallwood, superintendent of the Bertie County Schools in rural northeastern North Carolina, witnesses this kind of gulf in the district he leads. So many white children in the area attend Lawrence Academy and other schools that his district’s enrollment runs roughly 22 percentage points more Black than the county overall. He said he tries not to be political. But he feels the brunt of an intensifying Republican narrative against public schools, which still educate most of North Carolina’s children. “It’s been chipping, chipping, chipping, trying to paint this picture that public schools are not performing well,” Smallwood said. “It’s getting more and more and more extreme.” When a ProPublica reporter told him that Lawrence Academy received $518,240 last school year in vouchers, he was dismayed: “That’s half a million dollars I think could be put to better benefit in public schools.” If lawmakers override the governor’s veto to fund the waitlist, Smallwood’s district could suffer most. In a recent report, the Office of State Budget and Management projected Bertie County could lose more of its state funding than any other district — 1.6% next year. Bertie County Schools Superintendent Otis Smallwood worries that vouchers will drain resources from public schools, including the ones he oversees. (Greg Kahn, special to ProPublica) Across the once legally segregated South, the volume of public money flowing through voucher-style programs is set to balloon in coming years. Georgia, Alabama, Arkansas, Louisiana, Florida and South Carolina all have passed new or expanded programs since 2023. (South Carolina’s state Supreme Court rejected its tuition grants in September, but GOP lawmakers are expected to try again with a revamped court.) Voucher critics contend these programs will continue to worsen school segregation by helping wealthier white kids attend private schools; supporters argue they help more Black families afford tuition. But many of the states have made it hard to discern if either is happening by failing to require that the most basic demographic data be shared with the public — or even gathered. This doesn’t surprise Cowen, who wrote the new book “The Privateers: How Billionaires Created a Culture War and Sold School Vouchers.” He said Southern legislatures in particular don’t want to know what the data would show because the results, framed by a legacy of racism, could generate negative headlines and lawsuit fodder. States know how to collect vast troves of education data. North Carolina in particular is lauded among global researchers for “the robustness and the richness of the data system for public schools,” Cowen said. North Carolina and Alabama are among the states that have gathered demographic information about voucher recipients but won’t tell the public the race of students who use them to attend a given school. In North Carolina, a spokesperson said doing so could reveal information about specific students, making that data not a public record under the Opportunity Scholarship statue. For its $120 million tax credit program, Georgia does not collect racial demographic information or per-school spending. ProPublica was able to identify 20 segregation academies that signed up to take part, but it’s unclear how many are receiving that money or what the racial breakdown is of the students who use it. “Why should we not be allowed to know where the money is going? It’s a deliberate choice by those who pass these laws,” said Jessica Levin, director of Public Funds Public Schools, a national anti-voucher campaign led by the nonprofit Education Law Center. “There is a lack of transparency and accountability.” Advocacy groups that support widespread voucher use have resisted some rules that foster greater transparency out of concern that they might deter regulation-averse private schools from participating. Mike Long, president of the nonprofit Parents for Educational Freedom in North Carolina, is among those trying to rally as much private school buy-in for vouchers as possible. “Their fear is that if they accept it, these are tax dollars, and therefore they would have to submit to government regulation,” Long said. “We’ve lobbied this legislature, and I think they understand it very well, that you can’t tie regulation to this.” Pungo Christian Academy opened in 1968 in the small town of Belhaven. It last reported a student body that was 98% white in a county that was 65% white. (Greg Kahn, special to ProPublica) The share of Black students who have received vouchers in North Carolina has dropped significantly since the program's launch. In 2014, more than half the recipients were Black. This school year, the figure is 17%. That share is unlikely to increase if lawmakers fund all 54,000 students on the waiting list. Because lower-income families were prioritized for vouchers, the applicants who remain on the list are mostly in higher income tiers — and those families are more likely to be white. More Black parents don’t apply for vouchers because they don’t know about them, said Kwan Graham, who oversees parent liaisons for Parents for Educational Freedom in North Carolina. Graham, who is Black, said parents haven’t voiced to her concerns that, “I’m Black, they don’t want me” at their local private schools. But she’s also not naive. Private schools can largely select — and reject — who they want. The nonprofit Public Schools First NC has tallied admissions policies that private schools receiving vouchers use to reject applicants based on things like sexuality, religion and disability. Many also require in-person interviews or tours. Rather than overtly rejecting students based on race, which the voucher program prohibits, schools might say something like, “Come visit the school and see if you’re the ‘right fit,’” said Heather Koons, the nonprofit’s communications and research director. Northeast Academy, Lawrence Academy and Pungo Christian all include nondiscrimination statements on their websites. Back when segregation academies opened, some white leaders proudly declared their goal of preserving segregation. Others shrouded their racist motivations. Some white parents complained about federal government overreach and what they deemed social agendas and indoctrination in public schools. Even as violent backlash against integration erupted across the region, many white parents framed their decisions as quests for quality education, morality and Christian education, newspaper coverage and school advertisements from the time show. Early on, Southern lawmakers found a way to use taxpayer money to give these academies a boost: They created school voucher programs that went chiefly to white students. Courts ruled against or restricted the practice in the 1960s. But it didn’t really end. “If you look at the history of the segregation movement, they wanted vouchers to prop up segregation academies,” said Bryan Mann, a University of Kansas professor who studies school segregation. “And now they’re getting vouchers in some of these areas to prop up these schools.” More recently, Lawrence and Northeast academies both grew their enrollments while receiving voucher money even as the rural counties where they operate have lost population. Over three decades of responding to the federal private schools survey, both academies have reported enrolling almost no nonwhite children. And Pungo Christian has raised its average tuition by almost 50% over the past three school years. During that time, the small school has received almost $500,000 in vouchers. None of the three academies’ headmasters responded to ProPublica’s request to discuss its findings or to lists of questions. And none have ever reported more than 3% Black enrollment despite operating in counties with substantial — even majority — Black populations. Cotton farming and other agriculture remains an important part of the economy in Northampton County, a rural expanse in northeastern North Carolina that has lost population in recent years. Despite that decline, Northeast Academy has seen its enrollment grow and has received more voucher funding each year. (Greg Kahn, special to ProPublica) One of the Democrats who helped Republicans expand North Carolina’s voucher program was Shelly Willingham, a Black representative whose district includes Bertie County, home of Lawrence Academy. He said he doesn’t love vouchers, but the bills have included funding for issues he does support. He also said he encourages his constituents to take advantage of the vouchers. If there were any effort to make it more difficult for Black students to attend those schools, “then I would have a big problem,” Willingham said. “I don’t see that.” Another Democrat who voted with Republicans was state Rep. Michael Wray, a white businessman and former House minority whip — who graduated from Northeast Academy. Wray, whose voting record on vouchers over the years has been mixed, did not respond to multiple ProPublica requests to discuss his views. In 2013, he voted against the budget bill that established the Opportunity Scholarships. And in a recent Q&A with the local Daily Herald newspaper, when asked if he supports taxpayer money funding private schools, he responded: “I believe that when you siphon funds away from our public school budgets, it undermines the success of our schools overall.” Democrat Rodney Pierce, a public middle school teacher, recently won a seat in the North Carolina House of Representatives. (Greg Kahn, special to ProPublica) Rodney Pierce, a Black 46-year-old father and public school teacher, saw the voucher expansion in the state budget bill Wray voted for and felt history haunt him. Pierce had only one white student in his classes last year at Gaston STEM Leadership Academy. But about 30 miles across the rural county, white children filled Northeast Academy. Pierce taught history, with a deep interest in civil rights. He’d studied the voucher programs that white supremacists crafted to help white families flee to segregation academies. “This stuff was in the works back in the 1960s,” Pierce said. He was so outraged that he challenged Wray, a 10-term incumbent, for his state House seat. Pierce won the Democratic primary earlier this year by just 34 votes. He faced no opponent in November, so come next year he will cut the House’s support of vouchers by one vote. “Particularly in the Black community, we care about our public schools,” he said. Many Black families also have little to no relationship with their local private schools, especially those that opened specifically for white children and are still filled with them. The only times Pierce had set foot on Northeast Academy’s campus was when he covered a few sporting events there for the local newspaper. People there were nice to him, he said, but he felt anxious: “You’re in an academy you know was started by people who didn’t want their children to go to school with Black children.” His own three kids attend public schools. Even with vouchers, he said, he wouldn’t send them to a school founded as a segregation academy, much less one that still fosters segregation. He finds it insulting to force taxpayers, including the Black residents he will soon represent — about half of the people in his district — to pay to send other people’s children to these schools. How We Analyzed Whether Segregation Academies Were Getting Public Money We set out to determine whether states adopting voucher-like programs have provided funds to private schools founded to avoid integration. ProPublica previously developed a list of about 300 schools in the South that likely opened as segregation academies between 1954 and 1976 and that continue to operate. This original list was developed with data from the National Center for Education Statistics’ Private School Universe Survey, which includes schools’ student racial demographics. This survey is voluntary, and some known segregation academies — like an estimated quarter of all private schools — did not complete the survey or have reported different opening years over time. We did not include those institutions in our data. We examined only schools that responded to the most recent published survey in 2021-2022, as it included their racial demographics. This means our findings likely represent an undercount of schools. Over time, many schools that opened as segregation academies have come to look more like their communities. Among the likely segregation academies we identified, we wanted to specifically examine those that remain vastly white and unrepresentative of their communities. To find these, we narrowed our list to those that were at least 85% white as of the most recent private school survey and were whiter than the county where they are located, based on census data. We compared both the total population and the population under 18 to make this determination. We included three schools with a total enrollment of 843 students that were 85% white when rounded to the nearest percentage point. To assess which of those remaining schools may have benefitted from taxpayer money, ProPublica requested and gathered (where publicly available) per-school funding amounts from 10 southern states’ programs that support private schools. These included vouchers, individual education savings accounts and tax credits for scholarships or donations. The programs have existed for different numbers of years, and in some cases have expanded in eligibility and financial impact over time. In eight states, we received at least one year of per-school funding or recipient information. In two of these, we also got school-level demographics, with some limits to protect student privacy. We then compared the names of schools from those eight states to the original list of likely segregation academies that remain vastly white and identified 64 schools that have benefitted from some form of taxpayer dollars, ranging from a total of $2,700 to over $4 million for a single school across multiple years. An additional 26 schools in Georgia and Florida have opted to accept state vouchers or scholarship participants, but we do not know whether they have actually enrolled student recipients. Among the 64 schools that had benefited from a documented amount of state money, only a handful were in Virginia, Tennessee, Louisiana and Arkansas. In South Carolina, we identified 12 segregation academies getting vouchers, but only from a program focused on special needs students, and we were only able to get data up to the 2022-2023 school year. We focused our reporting on North Carolina, Mississippi and Alabama because each of these states had at least five years of available data and had sent millions of dollars to segregation academies through their state programs. Help ProPublica Report on Education

— Microsoft's "Free" Plan to Upgrade Government Cybersecurity Was Designed to Box Out Competitors and Drive Profits, Insiders Say

 

at 11/15/24 4:00am

by Renee Dudley, with research by Doris Burke ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published. In the summer of 2021, President Joe Biden summoned the CEOs of the nation’s biggest tech companies to the White House. A series of cyberattacks linked to Russia, China and Iran had left the government reeling, and the administration had asked the heads of Microsoft, Amazon, Apple, Google and others to offer concrete commitments to help the U.S. bolster its defenses. “You have the power, the capacity and the responsibility, I believe, to raise the bar on cybersecurity,” Biden told the executives gathered in the East Room. Microsoft had more to prove than most. Its own security lapses had contributed to some of the incursions that had prompted the summit in the first place, such as the so-called SolarWinds attack, in which Russian state-sponsored hackers stole sensitive data from federal agencies, including the National Nuclear Security Administration. Following the discovery of that breach, some members of Congress said the company should provide better cybersecurity for its customers. Others went further. Sen. Ron Wyden, a Democrat who chairs the Senate’s finance committee, called on the government to “reevaluate its dependence on Microsoft” before awarding it any more contracts. In response to the president’s call for help, Microsoft CEO Satya Nadella pledged to give the government $150 million in technical services to help upgrade its digital security. On the surface, it seemed a political win for the Biden administration and an instance of routine damage control from the world’s largest software company. But Microsoft’s seemingly straightforward commitment belied a more complex, profit-driven agenda, a ProPublica investigation has found. The proposal was, in fact, a calculated business maneuver designed to bring in billions of dollars in new revenue, box competitors out of lucrative government contracts and tighten the company’s grip on federal business. The White House Offer, as it was known inside Microsoft, would dispatch Microsoft consultants across the federal government to install the company’s cybersecurity products — which, as a part of the offer, were provided free of charge for a limited time. But once the consultants installed the upgrades, federal customers would be effectively locked in, because shifting to a competitor after the free trial would be cumbersome and costly, according to former Microsoft employees involved in the effort, most of whom spoke on the condition of anonymity because they feared professional repercussions. At that point, the customer would have little choice but to pay for the higher subscription fees. Two former sales leaders involved in the effort likened it to a drug dealer hooking a user with free samples. “If we give you the crack, and you take the crack, you’ll enjoy the crack,” one said. “And then when it comes time for us to take the crack away, your end users will say, ‘Don’t take it away from me.’ And you’ll be forced to pay me.” If we give you the crack, and you take the crack, you’ll enjoy the crack. And then when it comes time for us to take the crack away, your end users will say, ‘Don’t take it away from me.’ —former Microsoft sales leader The company, however, wanted more than those subscription fees, former salespeople said. The White House Offer would lead customers to buy other Microsoft products that ran on Azure, the company’s cloud platform, which carried additional charges based on how much storage space and computing power the customer used. The expectation was that the upgrades would ultimately “spin the meter” for Azure, helping Microsoft take market share from its main cloud rival, Amazon Web Services, the salespeople said. In the years after Nadella made his commitment to Biden, Microsoft’s goals became reality. The Department of Defense, which had resisted the upgrades for years due to the steep cost, began paying for them once the free trial ended, laying the groundwork for future Azure consumption. So did many civilian agencies. The White House Offer got the government “hooked on Azure,” said Karan Sondhi, a former Microsoft salesperson with knowledge of the deals. “And it was successful beyond what any of us could have imagined.” But while Microsoft’s gambit paid off handsomely for the company, legal experts told ProPublica the White House Offer deals never should have come to pass, as they sidestep or even possibly violate federal laws that regulate government procurement. Such laws generally bar gifts from contractors and require open competition for federal business. Accepting free product upgrades and consulting services collectively worth hundreds of millions of dollars is “not like a free sample at Costco, where I can take a sample, say, ‘Thanks for the snack,’ and go on my merry way,” said Eve Lyon, an attorney who worked for four decades as a procurement specialist in the federal government. “Here, you have changed the IT culture, and it would cost a lot of money to go to another system.” Microsoft defended its conduct. The company’s “sole goal during this period was to support an urgent request by the Administration to enhance the security posture of federal agencies who were continuously being targeted by sophisticated nation-state threat actors,” Steve Faehl, the security leader for Microsoft’s federal business, said in a statement. “There was no guarantee that agencies would purchase these licenses,” and they “were free to engage with other vendors to support their security needs,” Faehl said. Pricing for Microsoft’s security suite was transparent, he said, and the company worked “closely with the Administration to ensure any service and support agreements were pursued ethically and in full compliance with federal laws and regulations.” Faehl said in the statement that Microsoft asked the White House to “review the deal for antitrust concerns and ensure everything was proper and they did so.” The White House disputed that characterization, as did Tim Wu, a former presidential adviser who told ProPublica he discussed the offer with the company in a short, informal chat prior to the summit but provided no signoff. “If that’s what they’re saying, they’re misrepresenting what happened on that phone call,” he said. A current White House official, in a statement to ProPublica, sought to distance the administration from Microsoft’s offer, which it had previously heralded as an “ambitious” cybersecurity initiative. “This was a voluntary commitment made by Microsoft … and Microsoft alone was responsible for it,” the White House official said in the statement. Furthermore, they said the decisions to accept it were “handled solely by the respective agencies.” “The White House is not involved in Agency decisions regarding cybersecurity and procurement,” the official said. The official declined to comment on the legal and contracting concerns raised by experts but noted in the statement that the White House “is broadly concerned” about the risks of relying too much on any single technology vendor and “has been exploring potential policy steps to encourage Departments and Agencies to diversify where there is concentration.” Cybersecurity experts say that such concentration can leave users vulnerable to attack, outages or other disruption. Yet the White House summit ushered in that very type of concentrated reliance, as well as the kind of anticompetitive behavior that the Biden administration has pledged to stamp out. Former Microsoft salespeople told ProPublica that during their White House Offer push, they advised federal departments to save money by dropping cybersecurity products they had purchased from competitors. Those products, they told them, were now “redundant.” Salespeople also fended off new competitors by explaining to federal customers that most of the cybersecurity tools they needed were included in the upgraded bundle. Today, as a result of the deals, vast swaths of the federal government, including all of the military services in the Defense Department, are more reliant than ever on a single company to meet their IT needs. ProPublica’s investigation, supported by interviews with eight former Microsoft employees who were involved in the White House Offer, reveals for the first time how this sweeping transformation came to be — a change that critics say leaves Washington vulnerable, the very opposite of what Biden had set out to achieve with his summit. “How did Microsoft become so pervasive of a player in the government?” said a former company sales leader. “Well, the government let themselves get coerced into Microsoft when Microsoft rolled the stuff out for free.” President Joe Biden and Microsoft CEO Satya Nadella at a June 2023 event (Chris Kleponis/CNP/Bloomberg via Getty Images) “Everything That We Do Is Designed to Generate a Return” The federal government is one of Microsoft’s largest customers and “the one that we’re most devoted to,” the company’s president, Brad Smith, has said. Each day, millions of federal employees use the Windows operating system and products like Word, Outlook, Excel and others to write reports, send emails, analyze data and log on to their devices. But in the months before Biden’s summit, the SolarWinds hack put that relationship to the test. Discovered in late 2020, SolarWinds was one of the most damaging breaches in U.S. history and underscored the federal government’s vulnerability to a state-sponsored cyberattack. Authorities established that Russian hackers exploited a flaw in a Microsoft product to steal sensitive government documents from the National Nuclear Security Administration and the National Institutes of Health, among other agencies. What they didn’t know, as ProPublica reported in June, was that one of the company’s own engineers had warned about the weakness for years, only to be dismissed by product leaders who were fearful that acknowledging it would undermine the company’s chances of winning a massive federal cloud computing contract. But Microsoft’s known involvement was enough for Congress to summon Smith to testify in February 2021. Lawmakers focused on how Microsoft packaged its products into tiers of service — with advanced security tools attached to only the most expensive license, known to government customers as the G5. At the time, many federal employees used a less expensive license known as the G3. As a result, they didn’t have access to the security features that might have alerted them to an intrusion and aided subsequent investigations. Some lawmakers, like then-Rep. Jim Langevin of Rhode Island, accused the company of unfairly up-charging customers for what they considered to be basic security. “Is this a profit center for Microsoft?” he asked Smith during the hearing. Smith replied: “We are a for-profit company. Everything that we do is designed to generate a return, other than our philanthropic work.” Amid the criticism, Microsoft soon announced that it would provide federal customers with a “one-year free trial of Advanced Audit,” a tool that could help the government detect and investigate future attacks. Over the months that followed, Microsoft was “surprised there was not as aggressive of an uptake of Advanced Audit” as the company had wanted, Faehl, Microsoft’s federal security leader, told ProPublica. It would be a “lesson learned” going forward, he said. That May, Biden signed an executive order requiring federal agencies to bolster their cyber defenses, declaring that “protecting our Nation from malicious cyber actors requires the Federal Government to partner with the private sector.” He added, “In the end, the trust we place in our digital infrastructure should be proportional to how trustworthy and transparent that infrastructure is, and to the consequences we will incur if that trust is misplaced.” “Parting of the Red Sea” Around that time, Anne Neuberger, a White House deputy national security adviser, called Smith and requested that Microsoft develop an initiative to announce at Biden’s White House cybersecurity summit that August. Like Langevin, the administration believed that the company’s advanced suite of cybersecurity tools, including ones intended to counter threats on user devices, should be included in the government’s existing licenses and that products should be delivered to customers with the most secure settings enabled by default. (Neither Neuberger nor Smith granted interview requests.) Giving away a bundle of advanced security features permanently was a nonstarter inside Microsoft, an executive told ProPublica. But Smith spearheaded a team to develop an offer that appeared to be a compromise. Federal customers could have free, limited-time access to the upgraded G5 security capabilities and to consultants who would install them. “It was at the behest of the Administration that Microsoft provided enhanced security tools, at no cost, to agencies as soon as possible to level up their security baseline,” Faehl told ProPublica. While the deal achieved the administration’s goal of better protection for the federal government, it also served Microsoft’s interests. Microsoft salespeople had been trying, unsuccessfully, for years to convince federal customers to upgrade to the G5. Department and agency officials balked at the higher price tag when they already had other vendors providing some of the same security capabilities. The G5’s retail price is nearly 60% more than the G3’s. “We knew that this was a golden window that nobody could have foreseen opening up because we had been pushing” for the G5 upgrade “for years, and things were going very slow,” said a former Microsoft sales leader involved in the strategy. With the White House Offer, it was “like Moses leading us through the parting of the Red Sea, and we just rushed through it.” We knew that this was a golden window that nobody could have foreseen opening up. —former Microsoft sales leader Faehl told ProPublica that sales of the G5 had been slow prior to SolarWinds because federal customers wrongly believed “that they had sufficient security capabilities already in place.” He said the attack was “a wakeup call showing the status quo perspective to be insufficient.” Microsoft was well aware of the possible legal implications of its offer. More than two decades ago, the U.S. Department of Justice sued the company in a landmark antitrust case that nearly resulted in its breakup. Federal prosecutors alleged that Microsoft maintained an illegal monopoly in the operating system market through anticompetitive behaviors that prevented rivals from getting a foothold. Ultimately, the Justice Department settled with Microsoft, and a federal judge approved a consent decree that imposed restrictions on how the company could develop and license software. Although the decree had long since expired, it nonetheless continued to loom large in the corporate culture. When it came to the White House Offer, company insiders were “mindful of the concerns about Microsoft making products free that smaller companies sell,” an executive told ProPublica. A spokesperson explained, “That was the impetus for asking the administration to review it.” The “review” consisted of a phone call between Microsoft’s Smith and Wu, who was Biden’s special assistant for technology and competition policy. “Brad was like, ‘We think security is important, and we want to give the federal government better security,’” Wu recalled. But, according to Wu, Smith said Microsoft’s lawyers were “overly paranoid” about antitrust concerns, and he was looking to “calm his own lawyers down.” “I made it clear there was no ability in the White House to sign off on antitrust,” which is in the purview of the Justice Department or the Federal Trade Commission, Wu said. “I’m smart enough not to say, ‘Oh yeah, that’s fine with me.’ I’m not crazy.” I made it clear there was no ability in the White House to sign off on antitrust. I’m smart enough not to say, ‘Oh yeah, that’s fine with me.’ I’m not crazy. —Tim Wu, former presidential adviser After the news organization asked Microsoft about Wu’s account, a spokesperson walked back the company’s original written statement, saying that Faehl was misinformed. “The White House arranged a call and we described details of our security offer and how it was structured to avoid antitrust concerns,” the spokesperson said. “It was an informal conversation and at no time did we ask for formal antitrust approval.” Wu also told ProPublica that he felt pressure from the National Security Council’s Neuberger, who “wanted to get this deal done” in the wake of SolarWinds and other cyberattacks. “She pushed me to get on the phone with Brad,” he said. “I feel in some ways in retrospect I should not have even spoken with him. But I felt that I should help the NSC for what they presented as a formalistic exercise to help the national security.” “The End Game” After the White House summit, Microsoft’s sales teams quickly mobilized to sell the “WHO,” as it became known to insiders. The free consulting services were a crucial part of the strategy, former salespeople said. As Sondhi put it, “Just because you give the product away for free doesn’t mean they’re going to use it because it’s a pain in the ass to install new software and retrain staff.” The company wanted to avoid a repeat of the disappointing participation in the earlier Advanced Audit offer. The consultants would work inside the agencies, where they would have government-provided desks, phones and internet, as well as access to federal computer networks, according to one proposal reviewed by ProPublica. From their perches in the bureaucracy, they would get the products up and running and train federal employees on how to use them. This would make the upgrades “sticky,” as they became ingrained in employees’ daily lives, former salespeople said. Microsoft covered the free product upgrades for up to a year, the company told ProPublica. Faehl called the free upgrades “a short term option for protection while agencies put long term procurement plans in motion.” Or, as sales teams told customers, they “should not have to wait to be secure until they can procure.” The company also noted the offer came at a significant cost to Microsoft, “with no guarantee of renewal once the deal expired.” But sales teams said they knew customers who accepted the White House Offer were unlikely to undo the intensive work of installing the upgrades when renewal time rolled around, locking them into the G5 for the long haul. Wes Anderson, a Microsoft vice president who oversaw teams working with the Defense Department, asked his staff to prepare forecasts showing which customers were expected to become paying G5 users at the end of the White House Offer, three people who worked in sales told ProPublica. “It was explicit that this was the end game,” one former Microsoft sales leader who worked inside the Defense Department told ProPublica. “You will do whatever you need to do to get that software installed, operational and connected so the customer has their runway to renew.” It was explicit that this was the end game. You will do whatever you need to do to get that software installed, operational and connected. —former Microsoft sales leader (On Oct. 30, two weeks after the news organization sent Microsoft questions for this story, the company announced in an email to employees that Anderson would be leaving Microsoft. Neither Anderson nor Microsoft commented on the departure. On the topic of Anderson’s request of his staff, the company said, “Forecasting is part of the rhythm of business for organizations in nearly every industry.”) Salespeople pitched the White House Offer as “the easy button,” people familiar with the strategy told ProPublica. “Our argument was, ‘We have this whole suite of goodness,’” said a former Microsoft employee who worked with the Department of Defense. “‘You should upgrade because it will take care of everything rather than having a bunch of vendors that each do one of the 20 things that the G5 can do.’” Faehl told ProPublica the license bundles help federal customers “avoid the hassles of managing multiple contracts and licenses” and close security gaps by replacing a “patchwork of solutions” with “simplified, comprehensive protection.” For the most part, as they predicted, the Microsoft sales teams found receptive audiences across the government. To help ingratiate themselves, they invoked their association with the White House in their pitches. In one example, from June 2022, a Microsoft representative wrote to Veterans Affairs officials to explain that, “working in conjunction with the White House,” it would provide “a no cost offer of professional services to provide hands-on assistance” to deploy the upgrades. Money for Nothing? As consultants fanned out across the federal government to turn on the new features, there was a sense of unease among some employees about the nature of the deals. Typically, the government obtains products and services through a competitive bidding process, selecting from a variety of proposals from different vendors. The White House Offer was different. “No matter how you wanted to polish the turd, there was the appearance of no-bid contracts,” said a former Microsoft consultant involved in the WHO. The federal government may receive so-called gratuitous — or free — services from donors as long as both parties have a written agreement stating that the donor will not be paid for the goods or services provided. Such agreements were in place for the consulting services in the White House Offer, the company said. No matter how you wanted to polish the turd, there was the appearance of no-bid contracts. —former Microsoft consultant Those agreements may have helped Microsoft pass the “laugh test,” said Lyon, the former federal procurement attorney. “But just because something is technically legal does not make it right,” she said. Other contracting experts said federal departments and agencies should have been more skeptical about accepting free products and consulting services from Microsoft, given the implications for competition and national security. The cost and difficulty of switching from the Microsoft products presents a classic example of “vendor lock-in,” said Jessica Tillipman, associate dean for government procurement law studies at George Washington University Law School. “The free services are allowing the government to bypass a competitive procurement process and locking them in for future procurements,” she said. Tillipman said that, in the future, the government should consider restrictions on gratuitous services in IT in order “to ensure you’re not locked in with a vendor who gets their foot in the door with a frighteningly expensive” giveaway. “This is all designed to undermine future competitions,” she said. This is all designed to undermine future competitions. —Jessica Tillipman, associate dean, George Washington University Law School James Nagle, a former Army contracting official and practicing attorney who specializes in the federal contracting process, went even further, saying that the White House Offer potentially violated existing law. The Federal Acquisition Regulation, which governs government procurement, says that employees may not accept “gratuities,” or anything of value “from anyone who has or is seeking to obtain Government business.” And, as employees involved with the White House Offer told ProPublica, Microsoft was seeking future contract upgrades and new Azure revenue. While “gratuities” are typically considered to be perks such as free meals, sports tickets or other gifts for personal use, Nagle argued that the rule could apply to the White House Offer, though he said he was not aware of any prior case using his interpretation. He compared it to a car manufacturer providing a government agency with a fleet of cars for a year for free because it wants the agency to procure that fleet for its staff. “Any contracting officer would say, ‘No, you can’t do that,’” Nagle said. Once employees get used to the cars, they’re reluctant to switch, he said, and the “impermissible gift” would create a built-in bias toward that manufacturer. “That’s the problem here,” Nagle said. “This is not truly gratuitous. There’s another agenda in the works.” Microsoft did not use the so-called gratuitous services agreements to give away the G5 upgrades, as it did for the consulting services. Instead, Faehl told ProPublica, the company considered them “a 100% discount” added to existing customer contracts. He said making this type of “strategic investment is … common practice among companies” and that contract teams on both sides reviewed the deals. Nagle viewed it differently, characterizing the free products as a “loss leader designed to lead to future sweetheart deals.” Federal vendors may be banned from government contracting for violating the Federal Acquisition Regulation, though such an outcome would be highly unlikely for a vendor as large as Microsoft, Nagle said. Nonetheless, individual employees on both sides of improper deals in the past have been held accountable, he said. Skirting fiscal law, however, may have set the stage for an even more serious legal concern, said Christopher Sagers, a professor of antitrust law at Cleveland State University in Ohio. Microsoft’s actions, Sagers said, might constitute what is known in antitrust law as “exclusionary conduct,” opening the door for illegal monopoly. “Microsoft, rather than competing on the merits, took steps to exclude competitors by making its product sticky in advance of opportunities for competition,” he said. The company used “an already dominant position to further cement their position.” Microsoft disputed that point. “We don’t believe our offer raised antitrust concerns, and we constructed it specifically to avoid any such issues,” a company spokesperson said. “We talked informally with a White House staffer about this.” Wu, however, said the company did not make clear to him the financial and competitive implications of the offer. “There is no way that was discussed,” Wu told ProPublica. “The only thing that Brad mentioned was upgrading federal agencies, offering them better stuff.” Upon hearing the news organization’s findings, he said: “That is a lot darker than it sounded. Once you’re in somewhere, it’s very hard to leave. “Now I’m starting to feel guilty in some weird way about playing a role in a big deal that cost taxpayers money,” Wu said. Taking Out the Competition Former Microsoft salespeople said that all of the customers within the Defense Department who signed on to the White House Offer — including all the military branches — ultimately upgraded to the G5 and began paying for it when the time came to renew their agreements in 2022 and 2023. A Defense Department spokesperson said in a written statement that the department followed federal acquisition law and “conducted internal tests and evaluations of multiple vendor capabilities.” The upgrade, the spokesperson said, was “crucial” to meeting the department’s cybersecurity objectives. The department declined to answer follow-up questions, including to specify which vendors it evaluated before deciding on the G5. John Sherman, the department’s chief information officer at the time of the White House Offer dealmaking, defended both the government’s decision and Microsoft’s strategy. “I am sure Microsoft, like any company, would be trying to increase their business with any customer,” he told ProPublica. He added, “We didn’t have any particular preference for Microsoft in terms of favoritism or anything like that, but we knew it worked, which is why we wanted to proceed with that.” Many civilian agencies also upgraded to the G5 during this timeframe, said Sondhi, who now works at Microsoft competitor Trellix as chief technology officer for the company’s public-sector business. For Microsoft, winning more government business was only half the picture. It also saw the White House Offer as an opportunity to knock out its competitors. During and after their sales push, Microsoft salespeople advised government departments and agencies to remove competing products from their IT lineups to cut costs, saying the Microsoft bundle would render those other products redundant. Internally, employees called it the “take-out” strategy. “The play is: ‘You’re paying for it in the G5. It’s a waste of government money to have both,’” a former sales leader who worked with the Defense Department told ProPublica. Sondhi said that in a typical scenario, an upgrade to the 5-level can displace the existing work of a half dozen vendors or more. Executives from cybersecurity companies Trellix and Proofpoint, for example, told ProPublica they lost federal business in the wake of the White House Offer deals. The White House Offer also enhanced Microsoft’s competitive position by reducing the likelihood that the government would open bidding for cybersecurity products in the future, given the cornucopia of offerings in the G5. Within the company, this was known as “taking opportunities off the street,” former sales leaders said. The fallout impacted companies that were in the midst of completing the authorization process the government requires of vendors providing cloud-based services. Several told ProPublica that cybersecurity contract opportunities are now scarce. “We are chipping away, but it’s largely, by far, a Microsoft-owned landscape,” an executive at one competing vendor told ProPublica. Faehl dismissed those complaints, saying that customers kept the upgrades because they performed well and that competitors “should look inward to see why their products do not meet or exceed Microsoft results.” Reckoning With the “Monoculture” Microsoft has something few other companies possess: a panoply of products that span the IT ecosystem. Rivals say the company leveraged its existing dominance in certain products — like the Windows operating system and classic workplace applications — to gain dominance in others, namely cybersecurity and cloud computing. “No one has the kind of capital that Microsoft does,” Sondhi said. “They can just absorb the cost of the giveaway until the customer’s first bill.” A coalition backed by some of Microsoft’s major competitors, including Google and Amazon, has raised similar issues with the Federal Trade Commission, which in 2023 gathered public comments on the business practices of cloud computing providers. Among the FTC’s areas of ongoing interest: “Are there signs that cloud markets are functioning less than fully competitively, and that certain business practices are inhibiting competition?” Competition is not the only issue at stake. As Washington has deepened its relationship with Microsoft, congressional leaders have raised concerns about what they call a cybersecurity “monoculture” in the federal government. Some, like Wyden and Sen. Eric Schmitt, a Republican from Missouri, have blasted the Defense Department in particular for “doubling down on a failed strategy of increasing its dependence on Microsoft.” “Although we welcome the Department’s decision to invest in greater cybersecurity, we are deeply concerned that DoD is choosing not to pursue a multi-vendor approach that would result in greater competition, lower long-term costs, and better outcomes related to cybersecurity,” the two lawmakers wrote in a letter to Sherman, then the department’s chief information officer, in May. Microsoft’s Faehl pushed back. “The suggestion that our customers are any more at risk because they use Windows, or Azure, or Office is wrong,” he said. “We partner closely with our security competitors because we see them as partners against threat actors we face in common.” Still, just last year, Chinese hackers exploited Microsoft security lapses to breach the email accounts of senior U.S. officials. Investigating the attack, the federal Cyber Safety Review Board faulted the company for a “cascade of … avoidable errors” and pressed it to overhaul its security culture. Microsoft has since pledged to place security “above all else.” In June, Smith told Congress that Microsoft would strive to establish a “culture that encourages every employee to look for problems, find problems, report problems, help fix problems and then learn from the problems.” It’s learning from the successes, too. The same week that Smith testified before Congress, and nearly three years after Nadella made his commitment at Biden’s summit, Microsoft made a new offer, this time to “support hospitals serving more than 60 million people living in rural America.” The playbook was familiar. In its announcement, the company said that eligible hospitals could have the private-sector equivalent of the G5 “at no cost for one year.” As before, Faehl said Microsoft made the commitment “at the behest of the White House.”

— Biden Asked Microsoft to “Raise the Bar on Cybersecurity.” He May Have Helped Create an Illegal Monopoly.

 

at 11/15/24 4:00am

by Renee Dudley, with research by Doris Burke ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published. In the summer of 2021, President Joe Biden summoned the CEOs of the nation’s biggest tech companies to the White House. A series of cyberattacks linked to Russia, China and Iran had left the government reeling, and the administration had asked the heads of Microsoft, Amazon, Apple, Google and others to offer concrete commitments to help the U.S. bolster its defenses. “You have the power, the capacity and the responsibility, I believe, to raise the bar on cybersecurity,” Biden told the executives gathered in the East Room. Microsoft had more to prove than most. Its own security lapses had contributed to some of the incursions that had prompted the summit in the first place, such as the so-called SolarWinds attack, in which Russian state-sponsored hackers stole sensitive data from federal agencies, including the National Nuclear Security Administration. Following the discovery of that breach, some members of Congress said the company should provide better cybersecurity for its customers. Others went further. Sen. Ron Wyden, a Democrat who chairs the Senate’s finance committee, called on the government to “reevaluate its dependence on Microsoft” before awarding it any more contracts. In response to the president’s call for help, Microsoft CEO Satya Nadella pledged to give the government $150 million in technical services to help upgrade its digital security. On the surface, it seemed a political win for the Biden administration and an instance of routine damage control from the world’s largest software company. But Microsoft’s seemingly straightforward commitment belied a more complex, profit-driven agenda, a ProPublica investigation has found. The proposal was, in fact, a calculated business maneuver designed to bring in billions of dollars in new revenue, box competitors out of lucrative government contracts and tighten the company’s grip on federal business. The White House Offer, as it was known inside Microsoft, would dispatch Microsoft consultants across the federal government to install the company’s cybersecurity products — which, as a part of the offer, were provided free of charge for a limited time. But once the consultants installed the upgrades, federal customers would be effectively locked in, because shifting to a competitor after the free trial would be cumbersome and costly, according to former Microsoft employees involved in the effort, most of whom spoke on the condition of anonymity because they feared professional repercussions. At that point, the customer would have little choice but to pay for the higher subscription fees. Two former sales leaders involved in the effort likened it to a drug dealer hooking a user with free samples. “If we give you the crack, and you take the crack, you’ll enjoy the crack,” one said. “And then when it comes time for us to take the crack away, your end users will say, ‘Don’t take it away from me.’ And you’ll be forced to pay me.” If we give you the crack, and you take the crack, you’ll enjoy the crack. And then when it comes time for us to take the crack away, your end users will say, ‘Don’t take it away from me.’ —former Microsoft sales leader The company, however, wanted more than those subscription fees, former salespeople said. The White House Offer would lead customers to buy other Microsoft products that ran on Azure, the company’s cloud platform, which carried additional charges based on how much storage space and computing power the customer used. The expectation was that the upgrades would ultimately “spin the meter” for Azure, helping Microsoft take market share from its main cloud rival, Amazon Web Services, the salespeople said. In the years after Nadella made his commitment to Biden, Microsoft’s goals became reality. The Department of Defense, which had resisted the upgrades for years due to the steep cost, began paying for them once the free trial ended, laying the groundwork for future Azure consumption. So did many civilian agencies. The White House Offer got the government “hooked on Azure,” said Karan Sondhi, a former Microsoft salesperson with knowledge of the deals. “And it was successful beyond what any of us could have imagined.” But while Microsoft’s gambit paid off handsomely for the company, legal experts told ProPublica the White House Offer deals never should have come to pass, as they sidestep or even possibly violate federal laws that regulate government procurement. Such laws generally bar gifts from contractors and require open competition for federal business. Accepting free product upgrades and consulting services collectively worth hundreds of millions of dollars is “not like a free sample at Costco, where I can take a sample, say, ‘Thanks for the snack,’ and go on my merry way,” said Eve Lyon, an attorney who worked for four decades as a procurement specialist in the federal government. “Here, you have changed the IT culture, and it would cost a lot of money to go to another system.” Microsoft defended its conduct. The company’s “sole goal during this period was to support an urgent request by the Administration to enhance the security posture of federal agencies who were continuously being targeted by sophisticated nation-state threat actors,” Steve Faehl, the security leader for Microsoft’s federal business, said in a statement. “There was no guarantee that agencies would purchase these licenses,” and they “were free to engage with other vendors to support their security needs,” Faehl said. Pricing for Microsoft’s security suite was transparent, he said, and the company worked “closely with the Administration to ensure any service and support agreements were pursued ethically and in full compliance with federal laws and regulations.” Faehl said in the statement that Microsoft asked the White House to “review the deal for antitrust concerns and ensure everything was proper and they did so.” The White House disputed that characterization, as did Tim Wu, a former presidential adviser who told ProPublica he discussed the offer with the company in a short, informal chat prior to the summit but provided no signoff. “If that’s what they’re saying, they’re misrepresenting what happened on that phone call,” he said. A current White House official, in a statement to ProPublica, sought to distance the administration from Microsoft’s offer, which it had previously heralded as an “ambitious” cybersecurity initiative. “This was a voluntary commitment made by Microsoft … and Microsoft alone was responsible for it,” the White House official said in the statement. Furthermore, they said the decisions to accept it were “handled solely by the respective agencies.” “The White House is not involved in Agency decisions regarding cybersecurity and procurement,” the official said. The official declined to comment on the legal and contracting concerns raised by experts but noted in the statement that the White House “is broadly concerned” about the risks of relying too much on any single technology vendor and “has been exploring potential policy steps to encourage Departments and Agencies to diversify where there is concentration.” Cybersecurity experts say that such concentration can leave users vulnerable to attack, outages or other disruption. Yet the White House summit ushered in that very type of concentrated reliance, as well as the kind of anticompetitive behavior that the Biden administration has pledged to stamp out. Former Microsoft salespeople told ProPublica that during their White House Offer push, they advised federal departments to save money by dropping cybersecurity products they had purchased from competitors. Those products, they told them, were now “redundant.” Salespeople also fended off new competitors by explaining to federal customers that most of the cybersecurity tools they needed were included in the upgraded bundle. Today, as a result of the deals, vast swaths of the federal government, including all of the military services in the Defense Department, are more reliant than ever on a single company to meet their IT needs. ProPublica’s investigation, supported by interviews with eight former Microsoft employees who were involved in the White House Offer, reveals for the first time how this sweeping transformation came to be — a change that critics say leaves Washington vulnerable, the very opposite of what Biden had set out to achieve with his summit. “How did Microsoft become so pervasive of a player in the government?” said a former company sales leader. “Well, the government let themselves get coerced into Microsoft when Microsoft rolled the stuff out for free.” President Joe Biden and Microsoft CEO Satya Nadella at a June 2023 event (Chris Kleponis/CNP/Bloomberg via Getty Images) “Everything That We Do Is Designed to Generate a Return” The federal government is one of Microsoft’s largest customers and “the one that we’re most devoted to,” the company’s president, Brad Smith, has said. Each day, millions of federal employees use the Windows operating system and products like Word, Outlook, Excel and others to write reports, send emails, analyze data and log on to their devices. But in the months before Biden’s summit, the SolarWinds hack put that relationship to the test. Discovered in late 2020, SolarWinds was one of the most damaging breaches in U.S. history and underscored the federal government’s vulnerability to a state-sponsored cyberattack. Authorities established that Russian hackers exploited a flaw in a Microsoft product to steal sensitive government documents from the National Nuclear Security Administration and the National Institutes of Health, among other agencies. What they didn’t know, as ProPublica reported in June, was that one of the company’s own engineers had warned about the weakness for years, only to be dismissed by product leaders who were fearful that acknowledging it would undermine the company’s chances of winning a massive federal cloud computing contract. But Microsoft’s known involvement was enough for Congress to summon Smith to testify in February 2021. Lawmakers focused on how Microsoft packaged its products into tiers of service — with advanced security tools attached to only the most expensive license, known to government customers as the G5. At the time, many federal employees used a less expensive license known as the G3. As a result, they didn’t have access to the security features that might have alerted them to an intrusion and aided subsequent investigations. Some lawmakers, like then-Rep. Jim Langevin of Rhode Island, accused the company of unfairly up-charging customers for what they considered to be basic security. “Is this a profit center for Microsoft?” he asked Smith during the hearing. Smith replied: “We are a for-profit company. Everything that we do is designed to generate a return, other than our philanthropic work.” Amid the criticism, Microsoft soon announced that it would provide federal customers with a “one-year free trial of Advanced Audit,” a tool that could help the government detect and investigate future attacks. Over the months that followed, Microsoft was “surprised there was not as aggressive of an uptake of Advanced Audit” as the company had wanted, Faehl, Microsoft’s federal security leader, told ProPublica. It would be a “lesson learned” going forward, he said. That May, Biden signed an executive order requiring federal agencies to bolster their cyber defenses, declaring that “protecting our Nation from malicious cyber actors requires the Federal Government to partner with the private sector.” He added, “In the end, the trust we place in our digital infrastructure should be proportional to how trustworthy and transparent that infrastructure is, and to the consequences we will incur if that trust is misplaced.” “Parting of the Red Sea” Around that time, Anne Neuberger, a White House deputy national security adviser, called Smith and requested that Microsoft develop an initiative to announce at Biden’s White House cybersecurity summit that August. Like Langevin, the administration believed that the company’s advanced suite of cybersecurity tools, including ones intended to counter threats on user devices, should be included in the government’s existing licenses and that products should be delivered to customers with the most secure settings enabled by default. (Neither Neuberger nor Smith granted interview requests.) Giving away a bundle of advanced security features permanently was a nonstarter inside Microsoft, an executive told ProPublica. But Smith spearheaded a team to develop an offer that appeared to be a compromise. Federal customers could have free, limited-time access to the upgraded G5 security capabilities and to consultants who would install them. “It was at the behest of the Administration that Microsoft provided enhanced security tools, at no cost, to agencies as soon as possible to level up their security baseline,” Faehl told ProPublica. While the deal achieved the administration’s goal of better protection for the federal government, it also served Microsoft’s interests. Microsoft salespeople had been trying, unsuccessfully, for years to convince federal customers to upgrade to the G5. Department and agency officials balked at the higher price tag when they already had other vendors providing some of the same security capabilities. The G5’s retail price is nearly 60% more than the G3’s. “We knew that this was a golden window that nobody could have foreseen opening up because we had been pushing” for the G5 upgrade “for years, and things were going very slow,” said a former Microsoft sales leader involved in the strategy. With the White House Offer, it was “like Moses leading us through the parting of the Red Sea, and we just rushed through it.” We knew that this was a golden window that nobody could have foreseen opening up. —former Microsoft sales leader Faehl told ProPublica that sales of the G5 had been slow prior to SolarWinds because federal customers wrongly believed “that they had sufficient security capabilities already in place.” He said the attack was “a wakeup call showing the status quo perspective to be insufficient.” Microsoft was well aware of the possible legal implications of its offer. More than two decades ago, the U.S. Department of Justice sued the company in a landmark antitrust case that nearly resulted in its breakup. Federal prosecutors alleged that Microsoft maintained an illegal monopoly in the operating system market through anticompetitive behaviors that prevented rivals from getting a foothold. Ultimately, the Justice Department settled with Microsoft, and a federal judge approved a consent decree that imposed restrictions on how the company could develop and license software. Although the decree had long since expired, it nonetheless continued to loom large in the corporate culture. When it came to the White House Offer, company insiders were “mindful of the concerns about Microsoft making products free that smaller companies sell,” an executive told ProPublica. A spokesperson explained, “That was the impetus for asking the administration to review it.” The “review” consisted of a phone call between Microsoft’s Smith and Wu, who was Biden’s special assistant for technology and competition policy. “Brad was like, ‘We think security is important, and we want to give the federal government better security,’” Wu recalled. But, according to Wu, Smith said Microsoft’s lawyers were “overly paranoid” about antitrust concerns, and he was looking to “calm his own lawyers down.” “I made it clear there was no ability in the White House to sign off on antitrust,” which is in the purview of the Justice Department or the Federal Trade Commission, Wu said. “I’m smart enough not to say, ‘Oh yeah, that’s fine with me.’ I’m not crazy.” I made it clear there was no ability in the White House to sign off on antitrust. I’m smart enough not to say, ‘Oh yeah, that’s fine with me.’ I’m not crazy. —Tim Wu, former presidential adviser After the news organization asked Microsoft about Wu’s account, a spokesperson walked back the company’s original written statement, saying that Faehl was misinformed. “The White House arranged a call and we described details of our security offer and how it was structured to avoid antitrust concerns,” the spokesperson said. “It was an informal conversation and at no time did we ask for formal antitrust approval.” Wu also told ProPublica that he felt pressure from the National Security Council’s Neuberger, who “wanted to get this deal done” in the wake of SolarWinds and other cyberattacks. “She pushed me to get on the phone with Brad,” he said. “I feel in some ways in retrospect I should not have even spoken with him. But I felt that I should help the NSC for what they presented as a formalistic exercise to help the national security.” “The End Game” After the White House summit, Microsoft’s sales teams quickly mobilized to sell the “WHO,” as it became known to insiders. The free consulting services were a crucial part of the strategy, former salespeople said. As Sondhi put it, “Just because you give the product away for free doesn’t mean they’re going to use it because it’s a pain in the ass to install new software and retrain staff.” The company wanted to avoid a repeat of the disappointing participation in the earlier Advanced Audit offer. The consultants would work inside the agencies, where they would have government-provided desks, phones and internet, as well as access to federal computer networks, according to one proposal reviewed by ProPublica. From their perches in the bureaucracy, they would get the products up and running and train federal employees on how to use them. This would make the upgrades “sticky,” as they became ingrained in employees’ daily lives, former salespeople said. Microsoft covered the free product upgrades for up to a year, the company told ProPublica. Faehl called the free upgrades “a short term option for protection while agencies put long term procurement plans in motion.” Or, as sales teams told customers, they “should not have to wait to be secure until they can procure.” The company also noted the offer came at a significant cost to Microsoft, “with no guarantee of renewal once the deal expired.” But sales teams said they knew customers who accepted the White House Offer were unlikely to undo the intensive work of installing the upgrades when renewal time rolled around, locking them into the G5 for the long haul. Wes Anderson, a Microsoft vice president who oversaw teams working with the Defense Department, asked his staff to prepare forecasts showing which customers were expected to become paying G5 users at the end of the White House Offer, three people who worked in sales told ProPublica. “It was explicit that this was the end game,” one former Microsoft sales leader who worked inside the Defense Department told ProPublica. “You will do whatever you need to do to get that software installed, operational and connected so the customer has their runway to renew.” It was explicit that this was the end game. You will do whatever you need to do to get that software installed, operational and connected. —former Microsoft sales leader (On Oct. 30, two weeks after the news organization sent Microsoft questions for this story, the company announced in an email to employees that Anderson would be leaving Microsoft. Neither Anderson nor Microsoft commented on the departure. On the topic of Anderson’s request of his staff, the company said, “Forecasting is part of the rhythm of business for organizations in nearly every industry.”) Salespeople pitched the White House Offer as “the easy button,” people familiar with the strategy told ProPublica. “Our argument was, ‘We have this whole suite of goodness,’” said a former Microsoft employee who worked with the Department of Defense. “‘You should upgrade because it will take care of everything rather than having a bunch of vendors that each do one of the 20 things that the G5 can do.’” Faehl told ProPublica the license bundles help federal customers “avoid the hassles of managing multiple contracts and licenses” and close security gaps by replacing a “patchwork of solutions” with “simplified, comprehensive protection.” For the most part, as they predicted, the Microsoft sales teams found receptive audiences across the government. To help ingratiate themselves, they invoked their association with the White House in their pitches. In one example, from June 2022, a Microsoft representative wrote to Veterans Affairs officials to explain that, “working in conjunction with the White House,” it would provide “a no cost offer of professional services to provide hands-on assistance” to deploy the upgrades. Money for Nothing? As consultants fanned out across the federal government to turn on the new features, there was a sense of unease among some employees about the nature of the deals. Typically, the government obtains products and services through a competitive bidding process, selecting from a variety of proposals from different vendors. The White House Offer was different. “No matter how you wanted to polish the turd, there was the appearance of no-bid contracts,” said a former Microsoft consultant involved in the WHO. The federal government may receive so-called gratuitous — or free — services from donors as long as both parties have a written agreement stating that the donor will not be paid for the goods or services provided. Such agreements were in place for the consulting services in the White House Offer, the company said. No matter how you wanted to polish the turd, there was the appearance of no-bid contracts. —former Microsoft consultant Those agreements may have helped Microsoft pass the “laugh test,” said Lyon, the former federal procurement attorney. “But just because something is technically legal does not make it right,” she said. Other contracting experts said federal departments and agencies should have been more skeptical about accepting free products and consulting services from Microsoft, given the implications for competition and national security. The cost and difficulty of switching from the Microsoft products presents a classic example of “vendor lock-in,” said Jessica Tillipman, associate dean for government procurement law studies at George Washington University Law School. “The free services are allowing the government to bypass a competitive procurement process and locking them in for future procurements,” she said. Tillipman said that, in the future, the government should consider restrictions on gratuitous services in IT in order “to ensure you’re not locked in with a vendor who gets their foot in the door with a frighteningly expensive” giveaway. “This is all designed to undermine future competitions,” she said. This is all designed to undermine future competitions. —Jessica Tillipman, associate dean, George Washington University Law School James Nagle, a former Army contracting official and practicing attorney who specializes in the federal contracting process, went even further, saying that the White House Offer potentially violated existing law. The Federal Acquisition Regulation, which governs government procurement, says that employees may not accept “gratuities,” or anything of value “from anyone who has or is seeking to obtain Government business.” And, as employees involved with the White House Offer told ProPublica, Microsoft was seeking future contract upgrades and new Azure revenue. While “gratuities” are typically considered to be perks such as free meals, sports tickets or other gifts for personal use, Nagle argued that the rule could apply to the White House Offer, though he said he was not aware of any prior case using his interpretation. He compared it to a car manufacturer providing a government agency with a fleet of cars for a year for free because it wants the agency to procure that fleet for its staff. “Any contracting officer would say, ‘No, you can’t do that,’” Nagle said. Once employees get used to the cars, they’re reluctant to switch, he said, and the “impermissible gift” would create a built-in bias toward that manufacturer. “That’s the problem here,” Nagle said. “This is not truly gratuitous. There’s another agenda in the works.” Microsoft did not use the so-called gratuitous services agreements to give away the G5 upgrades, as it did for the consulting services. Instead, Faehl told ProPublica, the company considered them “a 100% discount” added to existing customer contracts. He said making this type of “strategic investment is … common practice among companies” and that contract teams on both sides reviewed the deals. Nagle viewed it differently, characterizing the free products as a “loss leader designed to lead to future sweetheart deals.” Federal vendors may be banned from government contracting for violating the Federal Acquisition Regulation, though such an outcome would be highly unlikely for a vendor as large as Microsoft, Nagle said. Nonetheless, individual employees on both sides of improper deals in the past have been held accountable, he said. Skirting fiscal law, however, may have set the stage for an even more serious legal concern, said Christopher Sagers, a professor of antitrust law at Cleveland State University in Ohio. Microsoft’s actions, Sagers said, might constitute what is known in antitrust law as “exclusionary conduct,” opening the door for illegal monopoly. “Microsoft, rather than competing on the merits, took steps to exclude competitors by making its product sticky in advance of opportunities for competition,” he said. The company used “an already dominant position to further cement their position.” Microsoft disputed that point. “We don’t believe our offer raised antitrust concerns, and we constructed it specifically to avoid any such issues,” a company spokesperson said. “We talked informally with a White House staffer about this.” Wu, however, said the company did not make clear to him the financial and competitive implications of the offer. “There is no way that was discussed,” Wu told ProPublica. “The only thing that Brad mentioned was upgrading federal agencies, offering them better stuff.” Upon hearing the news organization’s findings, he said: “That is a lot darker than it sounded. Once you’re in somewhere, it’s very hard to leave. “Now I’m starting to feel guilty in some weird way about playing a role in a big deal that cost taxpayers money,” Wu said. Taking Out the Competition Former Microsoft salespeople said that all of the customers within the Defense Department who signed on to the White House Offer — including all the military branches — ultimately upgraded to the G5 and began paying for it when the time came to renew their agreements in 2022 and 2023. A Defense Department spokesperson said in a written statement that the department followed federal acquisition law and “conducted internal tests and evaluations of multiple vendor capabilities.” The upgrade, the spokesperson said, was “crucial” to meeting the department’s cybersecurity objectives. The department declined to answer follow-up questions, including to specify which vendors it evaluated before deciding on the G5. John Sherman, the department’s chief information officer at the time of the White House Offer dealmaking, defended both the government’s decision and Microsoft’s strategy. “I am sure Microsoft, like any company, would be trying to increase their business with any customer,” he told ProPublica. He added, “We didn’t have any particular preference for Microsoft in terms of favoritism or anything like that, but we knew it worked, which is why we wanted to proceed with that.” Many civilian agencies also upgraded to the G5 during this timeframe, said Sondhi, who now works at Microsoft competitor Trellix as chief technology officer for the company’s public-sector business. For Microsoft, winning more government business was only half the picture. It also saw the White House Offer as an opportunity to knock out its competitors. During and after their sales push, Microsoft salespeople advised government departments and agencies to remove competing products from their IT lineups to cut costs, saying the Microsoft bundle would render those other products redundant. Internally, employees called it the “take-out” strategy. “The play is: ‘You’re paying for it in the G5. It’s a waste of government money to have both,’” a former sales leader who worked with the Defense Department told ProPublica. Sondhi said that in a typical scenario, an upgrade to the 5-level can displace the existing work of a half dozen vendors or more. Executives from cybersecurity companies Trellix and Proofpoint, for example, told ProPublica they lost federal business in the wake of the White House Offer deals. The White House Offer also enhanced Microsoft’s competitive position by reducing the likelihood that the government would open bidding for cybersecurity products in the future, given the cornucopia of offerings in the G5. Within the company, this was known as “taking opportunities off the street,” former sales leaders said. The fallout impacted companies that were in the midst of completing the authorization process the government requires of vendors providing cloud-based services. Several told ProPublica that cybersecurity contract opportunities are now scarce. “We are chipping away, but it’s largely, by far, a Microsoft-owned landscape,” an executive at one competing vendor told ProPublica. Faehl dismissed those complaints, saying that customers kept the upgrades because they performed well and that competitors “should look inward to see why their products do not meet or exceed Microsoft results.” Reckoning With the “Monoculture” Microsoft has something few other companies possess: a panoply of products that span the IT ecosystem. Rivals say the company leveraged its existing dominance in certain products — like the Windows operating system and classic workplace applications — to gain dominance in others, namely cybersecurity and cloud computing. “No one has the kind of capital that Microsoft does,” Sondhi said. “They can just absorb the cost of the giveaway until the customer’s first bill.” A coalition backed by some of Microsoft’s major competitors, including Google and Amazon, has raised similar issues with the Federal Trade Commission, which in 2023 gathered public comments on the business practices of cloud computing providers. Among the FTC’s areas of ongoing interest: “Are there signs that cloud markets are functioning less than fully competitively, and that certain business practices are inhibiting competition?” Competition is not the only issue at stake. As Washington has deepened its relationship with Microsoft, congressional leaders have raised concerns about what they call a cybersecurity “monoculture” in the federal government. Some, like Wyden and Sen. Eric Schmitt, a Republican from Missouri, have blasted the Defense Department in particular for “doubling down on a failed strategy of increasing its dependence on Microsoft.” “Although we welcome the Department’s decision to invest in greater cybersecurity, we are deeply concerned that DoD is choosing not to pursue a multi-vendor approach that would result in greater competition, lower long-term costs, and better outcomes related to cybersecurity,” the two lawmakers wrote in a letter to Sherman, then the department’s chief information officer, in May. Microsoft’s Faehl pushed back. “The suggestion that our customers are any more at risk because they use Windows, or Azure, or Office is wrong,” he said. “We partner closely with our security competitors because we see them as partners against threat actors we face in common.” Still, just last year, Chinese hackers exploited Microsoft security lapses to breach the email accounts of senior U.S. officials. Investigating the attack, the federal Cyber Safety Review Board faulted the company for a “cascade of … avoidable errors” and pressed it to overhaul its security culture. Microsoft has since pledged to place security “above all else.” In June, Smith told Congress that Microsoft would strive to establish a “culture that encourages every employee to look for problems, find problems, report problems, help fix problems and then learn from the problems.” It’s learning from the successes, too. The same week that Smith testified before Congress, and nearly three years after Nadella made his commitment at Biden’s summit, Microsoft made a new offer, this time to “support hospitals serving more than 60 million people living in rural America.” The playbook was familiar. In its announcement, the company said that eligible hospitals could have the private-sector equivalent of the G5 “at no cost for one year.” As before, Faehl said Microsoft made the commitment “at the behest of the White House.”

— Senator Slams Gun Industry’s “Invasive and Dangerous” Sharing of Customer Data With Political Operatives

 

at 11/15/24 3:00am

by Corey G. Johnson ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published. A U.S. senator this week criticized the gun industry for secretly harvesting personal information from firearm owners for political purposes, calling it an “invasive and dangerous intrusion” of privacy and safety. In a letter sent to the National Shooting Sports Foundation on Tuesday, Sen. Richard Blumenthal, D-Conn., questioned the legality of the “covert program” in which firearms manufacturers for years shared sensitive customer information with political operatives. Blumenthal cited a ProPublica investigation that found some of America’s most iconic gunmakers secretly participated, even while the gun industry presented itself as a privacy protector and fought against government and corporate efforts to track firearms ownership. At least 10 gun industry businesses, including Glock, Smith & Wesson and Remington, handed over hundreds of thousands of names, addresses and other private data — without customer knowledge or consent — to the NSSF, which then entered the details into what would become a massive database. The database was used to rally gun owners’ electoral support for the industry’s candidates running for the White House and Congress. Blumenthal, who chairs a Senate subcommittees on privacy, gave the NSSF a Nov. 21 deadline to answer several questions. He wanted to know more about which companies contributed information to the database, the type of customer details shared and whether the data is still being used by the organization or by others. The senator, who served as Connecticut’s attorney general for two decades and has consistently supported legislation to reduce gun violence, said he was also “disturbed” by “glaring discrepancies” between what ProPublica uncovered and the NSSF’s previous responses to his office. In 2022, Blumenthal sent the NSSF a list of questions after reading leaked documents that made a passing reference to the database. In its response, the NSSF would not acknowledge the database’s existence. “The secretive compilation and sharing of private information by NSSF and its partners seems to have violated federal consumer protection laws and created substantial data privacy and safety risks for lawful gun owners,” Blumenthal wrote. The customer information initially came from decades of warranty cards filled out and returned to gun manufacturers for rebates and repair or replacement programs. A ProPublica review of dozens of warranty cards from the 1970s through today found that some promised customers their information would be kept strictly confidential. Others said some information could be shared with third parties for marketing and sales. None of the cards informed buyers their details would be used by lobbyists and consultants to win elections. Violating a promise of strict confidentiality on warranty cards or failing to mention that consumer information could be given to the NSSF may qualify as a deceptive practice under the Federal Trade Commission Act, privacy and legal experts said. Under the law, companies must follow their privacy policies and be clear with consumers about how they will use their information. The NSSF did not respond to messages seeking comment. Previously, the group defended the data collection, saying in a statement to ProPublica that any suggestion of “unethical or illegal behavior is entirely unfounded.” The statement said “these activities are, and always have been, entirely legal and within the terms and conditions of any individual manufacturer, company, data broker, or other entity.” Glock and Smith & Wesson did not previously respond to ProPublica’s requests for comment. In the years since the data sharing program was launched, Remington has been split into two companies and sold. Remarms, which owns the old firearms division, said it was unaware of the company’s workings at the time. The other portion of the company is now owned by Remington Ammunition, which said it had “not provided personal information to the NSSF or any of its vendors.” Founded in 1961 and currently based in Shelton, Connecticut, the NSSF represents thousands of firearms and ammunition manufacturers, distributors, retailers, publishers and shooting ranges. While not as well known as the chief lobbyist for gun owners, the National Rifle Association, the NSSF is respected and influential in business, political and gun-rights communities. For two decades, the organization has raged against government and corporate attempts to amass information on gun buyers. As recently as this year, the NSSF pushed for laws that would prohibit credit card companies from creating special codes for firearms dealers, claiming the codes could be used to create a registry of gun purchasers. As a group, gun owners are fiercely protective about their personal information. Many have good reasons. Their ranks include police officers, judges, domestic violence victims and others who have faced serious threats of harm. The gun industry launched the data harvesting approximately 17 months before the 2000 election as it grappled with a cascade of financial, legal and political threats. Within three years, the NSSF’s database — filled with warranty card information and supplemented with names from voter rolls and hunting licenses — contained at least 5.5 million people. The information was central to what NSSF called its voter education program, which involved sending letters, postcards and later emails to persuade gun buyers to vote for the firearms industry’s preferred political candidates. Because privacy laws shield the names of firearm purchasers from public view, the data NSSF obtained gave it a unique ability to identify and contact large numbers of gun owners or shooting sports enthusiasts. The NSSF has credited its program for helping elect both George W. Bush and Donald Trump to the White House. In April 2016, a contractor on NSSF’s voter education project delivered a large cache of data to Cambridge Analytica, a political consulting firm credited with playing a key role in Trump’s narrow victory that year, according to internal Cambridge emails and documents. The company later went out of business amid a global scandal over its handling of confidential consumer data. The data given to Cambridge included 20 years of gun owners’ warranty card information as well as a separate database of customers from Cabela’s, a sporting goods retailer with approximately 70 stores in the U.S. and Canada. Cambridge combined the NSSF data with a wide array of sensitive particulars obtained from commercial data brokers. It included people’s income, their debts, their religion, where they filled prescriptions, their children’s ages and purchases they made for their kids. For women, it revealed intimate elements such as whether the underwear and other clothes they purchased were plus size or petite. The information was used to create psychological profiles of gun owners and assign scores to behavioral traits, such as neuroticism and agreeableness. With the NSSF supporting Trump and pro-gun congressional candidates, the profiles helped Cambridge tailor the NSSF’s political messages to voters based on their personalities.

— State Regulators Know Health Insurance Directories Are Full of Wrong Information. They’re Doing Little to Fix It.

 

at 11/14/24 10:01am

by Max Blau ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published. To uncover the truth about a pernicious insurance industry practice, staffers with the New York’s state attorney general’s office decided to tell a series of lies. So, over the course of 2022 and 2023, they dialed hundreds of mental health providers in the directories of more than a dozen insurance plans. Some staffers pretended to call on behalf of a depressed relative. Others posed as parents asking about their struggling teenager. They wanted to know two key things about the supposedly in-network providers: Do you accept insurance? And are you accepting new patients? The more the staffers called, the more they realized that the providers listed either no longer accepted insurance or had stopped seeing new patients. That is, if they heard back from the providers at all. In a report published last December, the office described rampant evidence of these “ghost networks,” where health plans list providers who supposedly accept that insurance but who are not actually available to patients. The report found that 86% of the listed mental health providers who staffers had called were “unreachable, not in-network, or not accepting new patients.” Even though insurers are required to publish accurate directories, New York Attorney General Letitia James’ office didn’t find evidence that the state’s own insurance regulators had fined any insurers for their errors. Shortly after taking office in 2021, Gov. Kathy Hochul vowed to combat provider directory misinformation, so there seemed to be a clear path to confronting ghost networks. Yet nearly a year after the publication of James’ report, nothing has changed. Regulators can’t point to a single penalty levied for ghost networks. And while a spokesperson for New York state’s Department of Financial Services has said that “nation-leading consumer protections” are in the works, provider directories in the state are still rife with errors. A similar pattern of errors and lax enforcement is happening in other states as well. In Arizona, regulators called hundreds of mental health providers listed in the networks of the state’s most popular individual health plans. They couldn’t schedule visits with nearly 2 out of every 5 providers they called. None of those companies have been fined for their errors. In Massachusetts, the state attorney general investigated alleged efforts by insurers to restrict their customers’ mental health benefits. The insurers agreed to audit their mental health provider listings but were largely allowed to police themselves. Insurance regulators have not fined the companies for their errors. In California, regulators received hundreds of complaints about provider listings after one of the nation’s first ghost network regulations took effect in 2016. But under the new law, they have actually scaled back on fining insurers. Since 2016, just one plan was fined — a $7,500 penalty — for posting inaccurate listings for mental health providers. ProPublica reached out to every state insurance commission to see what they have done to curb rampant directory errors. As part of the country’s complex patchwork of regulations, these agencies oversee plans that employers purchase from an insurer and that individuals buy on exchanges. (Federal agencies typically oversee plans that employers self-fund or that are funded by Medicare.) Spokespeople for the state agencies told ProPublica that their “many actions” resulted in “significant accountability.” But ProPublica found that the actual actions taken so far do not match the regulators’ rhetoric. “One of the primary reasons insurance commissions exist is to hold companies accountable for what they are advertising in their contracts,” said Dr. Robert Trestman, a leading American Psychiatric Association expert who has testified about ghost networks to the U.S. Senate Committee on Finance. “They’re not doing their job. If they were, we would not have an ongoing problem.” Most states haven’t fined a single company for publishing directory errors since 2019. When they do, the penalties have been small and sporadic. In an average year, fewer than a dozen fines are issued by insurance regulators for directory errors, according to information obtained by ProPublica from almost every one of those agencies. All those fines together represent a fraction of 1% of the billions of dollars in profits made by the industry’s largest companies. Health insurance experts told ProPublica that the companies treat the fines as a “cost of doing business.” They’re not doing their job. If they were, we would not have an ongoing problem. —Dr. Robert Trestman, an American Psychiatric Association expert, speaking about insurance regulators Insurers acknowledge that errors happen. Providers move. They retire. Their open appointments get booked by other patients. The industry’s top trade group, AHIP, has told lawmakers that companies contact providers to verify that their listings are accurate. The trade group also has stated that errors could be corrected faster if the providers did a better job updating their listings. But providers have told us that’s bogus. Even when they formally drop out of a network, they’re not always removed from the insurer’s lists. The harms from ghost networks are real. ProPublica reported on how Ravi Coutinho, a 36-year-old entrepreneur from Arizona, had struggled for months to access the mental health and addiction treatment that was covered by his health plan. After nearly two dozen calls to the insurer and multiple hospitalizations, he couldn’t find a therapist. Last spring, he died, likely due to complications from excessive drinking. Health insurance experts said that, unless agencies can crack down and issue bigger fines, insurers will keep selling error-ridden plans. “You can have all the strong laws on the books,” said David Lloyd, chief policy officer with the mental health advocacy group Inseparable. “But if they’re not being enforced, then it’s kind of all for nothing.” The problem with ghost networks isn’t one of awareness. States, federal agencies, researchers and advocates have documented them time and again for years. But regulators have resisted penalizing insurers for not fixing them. Two years ago, the Arizona Department of Insurance and Financial Institutions began to probe the directories used by five large insurers for plans that they sold on the individual market. Regulators wanted to find out if they could schedule an appointment with mental health providers listed as accepting new patients, so their staff called 580 providers in those companies’ directories. Thirty-seven percent of the calls did not lead to an appointment getting scheduled. Even though this secret-shopper survey found errors at a lower rate than what had been found in New York, health insurance experts who reviewed Arizona’s published findings said that the results were still concerning. Ghost network regulations are intended to keep provider listings as close to error-free as possible. While the experts don’t expect any insurer to have a perfect directory, they said that double-digit error rates can be harmful to customers. Arizona’s regulators seemed to agree. In a January 2023 report, they wrote that a patient could be clinging to the “last few threads of hope, which could erode if they receive no response from a provider (or cannot easily make an appointment).” Secret-shopper surveys are considered one of the best ways to unmask errors. But states have limited funding, which restricts how often they can conduct that sort of investigation. Michigan, for its part, mostly searches for inaccuracies as part of an annual review of a health plan. Nevada investigates errors primarily if someone files a complaint. Christine Khaikin, a senior health policy attorney for the nonprofit advocacy group Legal Action Center, said fewer surveys means higher odds that errors go undetected. Some regulators, upon learning that insurers may not be following the law, still take a hands-off approach with their enforcement. Oregon’s Department of Consumer and Business Services, for instance, conducts spot checks of provider networks to see if those listings are accurate. If they find errors, insurers are asked to fix the problem. The department hasn’t issued a fine for directory errors since 2019. A spokesperson said the agency doesn’t keep track of how frequently it finds network directory errors. Dave Jones, a former insurance commissioner in California, said some commissioners fear that stricter enforcement could drive companies out of their states, leaving their constituents with fewer plans to choose from. Even so, staffers at the Arizona Department of Insurance and Financial Institutions wrote in the report that there “needs to be accountability from insurers” for the errors in their directories. That never happened, and the agency concealed the identities of the companies in the report. A department spokesperson declined to provide the insurers’ names to ProPublica and did not answer questions about the report. Since January 2023, Arizonans have submitted dozens of complaints to the department that were related to provider networks. The spokesperson would not say how many were found to be substantiated, but the department was able to get insurers to address some of the problems, documents obtained through an open records request show. According to the department’s online database of enforcement actions, not a single one of those companies has been fined. (Anson Chan, special to ProPublica) Sometimes, when state insurance regulators fail to act, attorneys general or federal regulators intervene in their stead. But even then, the extra enforcers haven’t addressed the underlying problem. For years, the Massachusetts Division of Insurance didn’t fine any company for ghost networks, so the state attorney general’s office began to investigate whether insurers had deceived consumers by publishing inaccurate directories. Among the errors identified: One plan had providers listed as accepting new patients but no actual appointments were available for months; another listed a single provider more than 10 times at different offices. In February 2020, Maura Healey, who was then the Massachusetts attorney general, announced settlements with some of the state’s largest health plans. No insurer admitted wrongdoing. The companies, which together collect billions in premiums each year, paid a total of $910,000. They promised to remove providers who left their networks within 30 days of learning about that decision. Healey declared that the settlements would lead to “unprecedented changes to help ensure patients don’t have to struggle to find behavioral health services.” But experts who reviewed the settlements for ProPublica identified a critical shortcoming. While the insurers had promised to audit directories multiple times a year, the companies did not have to report those findings to the attorney general’s office. Spokespeople for Healey and the attorney general’s office declined to answer questions about the experts’ assessments of the settlements. After the settlements were finalized, Healey became the governor of Massachusetts and has been responsible for overseeing the state’s insurance division since she took office in January 2023. Her administration’s regulators haven’t brought any fines over ghost networks. The industry doesn’t take the regulatory penalties seriously because they’re so low. —Mara Elliott, San Diego’s city attorney Healey’s spokesperson declined to answer questions and referred ProPublica to responses from the state’s insurance division. A division spokesperson said the state has taken steps to strengthen its provider directory regulations and streamline how information about in-network providers gets collected. Starting next year, the spokesperson said that the division “will consider penalties” against any insurer whose “provider directory is found to be materially noncompliant.” States that don’t have ghost network laws have seen federal regulators step in to monitor directory errors. In late 2020, Congress passed the No Surprises Act, which aimed to cut down on the prevalence of surprise medical bills from providers outside of a patient’s insurance network. Since then, the Centers for Medicare and Medicaid Services, which oversees the two large public health insurance programs, has reached out to every state to see which ones could handle enforcement of the federal ghost network regulations. At least 15 states responded that they lacked the ability to enforce the new regulation. So CMS is now tasked with watching out for errors in directories used by millions of insurance customers in those states. Julie Brookhart, a spokesperson for CMS, told ProPublica that the agency takes enforcement of the directory error regulations “very seriously.” She said CMS has received a “small number” of provider directory complaints, which the agency is in the process of investigating. If it finds a violation, Brookhart said regulators “will take appropriate enforcement action.” But since the requirement went into effect in January 2022, CMS hasn’t fined any insurer for errors. Brookhart said that CMS intends to develop further guidelines with other federal agencies. Until that happens, Brookhart said that insurers are expected to make “good-faith” attempts to follow the federal provider directory rules. Last year, five California lawmakers proposed a bill that sought to get rid of ghost networks around the state. If it passed, AB 236 would limit the number of errors allowed in a directory — creating a cap of 5% of all providers listed — and raise penalties for violations. California would become home to one of the nation’s toughest ghost network regulations. The state had already passed one of America’s first such regulations in 2015, requiring insurers to post directories online and correct inaccuracies on a weekly basis. Since the law went into effect in 2016, insurance customers have filed hundreds of complaints with the California Department of Managed Health Care, which oversees health plans for nearly 30 million enrollees statewide. Lawyers also have uncovered extensive evidence of directory errors. When San Diego’s city attorney, Mara Elliott, sued several insurers over publishing inaccurate directories in 2021, she based the claims on directory error data collected by the companies themselves. Citing that data, the lawsuits noted that error rates for the insurers’ psychiatrist listings were between 26% and 83% in 2018 and 2019. The insurers denied the accusations and convinced a judge to dismiss the suits on technical grounds. A panel of California appeals court judges recently reversed those decisions; the cases are pending. The companies have continued to send that data to the DMHC each year — but the state has not used it to examine ghost networks. California is among the states that typically waits for a complaint to be filed before it investigates errors. “The industry doesn’t take the regulatory penalties seriously because they’re so low,” Elliott told ProPublica. “It’s probably worth it to take the risk and see if they get caught.” California’s limited enforcement has resulted in limited fines. Over the past eight years, the DMHC has issued just $82,500 in fines for directory errors involving providers of any kind. That’s less than one-fifth of the fines issued in the two years before the regulation went into effect. A spokesperson for the DMHC said its regulators continue “to hold health plans accountable” for violating ghost network regulations. Since 2018, the DMHC has discovered scores of problems with provider directories and pushed health plans to correct the errors. The spokesperson said that the department’s oversight has also helped some customers get reimbursed for out-of-network costs incurred due to directory errors. “A lower fine total does not equate to a scaling back on enforcement,” the spokesperson said. Dr. Joaquin Arambula, one of the state Assembly members who co-sponsored AB 236, disagreed. He told ProPublica that California’s current ghost network regulation is “not effectively being enforced.” After clearing the state Assembly this past winter, his bill, along with several others that address mental health issues, was suddenly tabled this summer. The roadblock came from a surprising source: the administration of the state’s Democratic governor. Officials with the DMHC, whose director was appointed by Gov. Gavin Newsom, estimated that more than $15 million in extra funding would be needed to carry out the bill’s requirements over the next five years. State lawmakers accused officials of inflating the costs. The DMHC’s spokesperson said that the estimate was accurate and based on the department’s “real experience” overseeing health plans. Arambula and his co-sponsors hope that their colleagues will reconsider the measure during next year’s session. Sitting before state lawmakers in Sacramento this year, a therapist named Sarah Soroken told the story of a patient who had called 50 mental health providers in her insurer’s directory. None of them could see her. Only after the patient attempted suicide did she get the care she’d sought. “We would be negligent,” Soroken told the lawmakers, “if we didn’t do everything in our power to ensure patients get the health care they need.” Paige Pfleger of WPLN/Nashville Public Radio contributed reporting.

— Meet ProPublica’s 2024 Class of Emerging Reporters

 

at 11/14/24 9:20am

by Talia Buford ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published. ProPublica’s Emerging Reporters Program provides support and mentorships to college students who are pursuing careers in investigative journalism and need additional training and financial support to help advance their goals. Participants receive a $9,000 stipend, a trip to the annual NICAR investigative journalism conference, occasional training and presentations by speakers. They’ll also be paired one-on-one with ProPublica journalists who can help counsel them on stories, build their connections in the industry and expose them to the varied paths for careers in investigative journalism. Past Emerging Reporters have gone on to work at The New York Times, The Associated Press, Fresnoland, Capital B and other outlets. Our goal is to encourage the next generation of journalists who seek to shine a light on abuses of power and produce stories of moral force that provoke change. In choosing the class, we look for students who demonstrate an early dedication to journalism as a career, through internships, work at local news outlets or work at campus publications. And where those opportunities — which are often unpaid — aren’t accessible, we look for other ways the student has shown an eagerness and a drive to learn the craft. The 2024-25 academic year’s class of exceptional student journalists are from New York, Connecticut, Georgia, North Carolina and Washington, D.C. Throughout the application process, we were impressed by their experience and their desire to pursue ambitious, important stories so early in their careers. Through their work, the students have shown not only a commitment to careers in investigative journalism, but a desire to build trust and have impact in the communities they cover. As they look forward to a post-undergrad future, like any good investigative journalist, they’re thinking about how they can do more in-depth, exciting work. Through narrative, this year’s Emerging Reporters have set their sights on covering issues around public transit, affordable housing, the environment and climate change. They want to use audio to make their investigations accessible and digestible to the average listener. Some already work part time for local outlets on pressing community issues, while others are working for print and broadcast student media organizations. Meet our 2024 class: Aisha Baiocchi Aisha Baiocchi is a senior studying journalism and international comparative studies through her dual enrollment at the University of North Carolina at Chapel Hill and Duke University. She is passionate about community journalism and bilingual reporting in Spanish. She is the special projects editor for her university’s independent student paper, The Daily Tar Heel. She was previously a metro intern at the Tampa Bay Times and participated in the National Association of Hispanic Journalists’ student project. Amira McKee Amira McKee is a senior at Columbia University studying sociology. She is head of investigations at the Columbia Daily Spectator, the campus newspaper, and also is an intern at NBC’s Investigative Unit. Over the summer, she interned with The Current, a Georgia-based nonprofit investigative newsroom, investigating traumatic injuries at Hyundai’s first U.S. electric vehicle plant. McKee has had internships at ABC New York and the Bronx Times. She also participated in the 2024 Politico Journalism Institute and the Dow Jones News Fund business reporting program. Her reporting interests include labor, policing and economic inequality. Chaya Tong Chaya Tong is a senior at Emory University studying biology and English. She is a part-time investigative reporter at The Atlanta Journal-Constitution. As an intern, Tong has covered Georgia state politics and policy for the Georgia Recorder, covered breaking news for The Daily Beast, and worked on investigative teams with The Chronicle of Higher Education and The Washington Post. She recently reported in Jackson, Mississippi, covering race and inequity for The Clarion-Ledger. Tong hopes to continue covering issues of race and politics as a journalist after graduation. Trinity Webster-Bass Trinity Webster-Bass is a senior broadcast journalism major and Afro-American studies minor at Howard University. She is president of the Howard chapter of the Ida B. Wells Society for Investigative Reporting and contributes to The Hilltop as an audio producer for “The HillTalks” podcast. Her media experience includes internships at WJCT-FM, an NPR affiliate in Jacksonville, Florida, and WHUR-FM’s music department at Howard University. She was also the producer of “Queer Seminar,” the third episode of the “1619: The College Edition” podcast in collaboration with Spotify. Webster-Bass is interested in using investigative storytelling through audio reporting to amplify the voices of individuals from diverse backgrounds. Terell Wright Terell Wright is a senior at Connecticut College studying political economy and minoring in history. He is a contributor to Connecticut Public Radio and The Day. His reporting on Gen Z's struggle to find affordable housing in the region won a 2023 Publick Occurrences award from the New England Newspaper & Press Association for The Day. Wright interned at The Wall Street Journal covering the economy during the 2024 presidential election. Wright is a National Association of Black Journalists scholarship recipient and a Dow Jones News Fund alum. He is interested in humanizing national trends impacting underreported communities. Cedeem Gumbs contributed research.

— How Lincare Became a Multibillion-Dollar Medicare Scofflaw

 

at 11/13/24 4:00am

by Peter Elkind ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published. For Lincare, paying multimillion-dollar legal settlements is an integral part of doing business. The company, the largest distributor of home oxygen equipment in the United States, admitted billing Medicare for ventilators it knew customers weren’t using (2024) and overcharging Medicare and thousands of elderly patients (2023). It settled allegations of violating a law against kickbacks (2018) and charging Medicare for patients who had died (2017). The company resolved lawsuits alleging a “nationwide scheme to pay physicians kickbacks to refer their patients to Lincare” (2006) and that it falsified claims that its customers needed oxygen (2001). (Lincare admitted wrongdoing in only the two most recent settlements.) Such a litany of Medicare-related misconduct might be expected to provoke drastic action from the Department of Health and Human Services, which oversees the federal health insurance program that covers 1 in 6 Americans. Given that most of Lincare’s estimated $2.4 billion in annual revenues are paid by Medicare, HHS wields tremendous power over the company. Sure enough, as part of the 2023 settlement, HHS placed Lincare on the agency’s equivalent of probation, a so-called corporate integrity agreement. The foreboding-sounding document includes a “death penalty” provision: Any “material breach” of the probation agreement, which runs for five years, “constitutes an independent basis for Lincare’s exclusion from participation in the Federal health care programs.” Such a ban could effectively kill Lincare’s business. That sounds dire. Except that before that corporate integrity agreement was signed in 2023, Lincare was under the same form of probation, with the same death penalty provision, from 2018 to 2023, and violated its terms. From 2006 to 2011, Lincare was similarly on probation and also violated the terms, according to the government. And before that — well, you get the picture. Lincare has been on probation four times since 2001. And despite a pattern not only of fraud, but of breaking its probation agreements, Lincare has never been required to do more than pay settlements that amount to pennies relative to its profits. This is not an aberration. While HHS routinely imposes the death penalty on small operations, it has never barred a national Medicare supplier like Lincare from continuing to do business with the government. Some companies, it seems, are too big to ban. Lincare’s lengthy record of misbehavior isn’t a surprise to people in the medical equipment business. What is surprising is the federal government’s willingness to pull its punches with a company that has fleeced taxpayers and elderly customers again and again. Federal officials have never pursued the company executives who oversee this behavior even though two of them, Chief Operating Officer Greg McCarthy and Chief Compliance Officer Jenna Pedersen, have worked at Lincare through all four of the company’s probationary periods. No one has faced criminal charges for activity the government’s own investigators deemed fraud. Medicare has continued to pay Lincare billions even as many of the company’s customers revile it. Evaluations on customer-review websites are lacerating, and complaints to state attorneys general abound. On the Better Business Bureau’s website, 888 reviewers gave Lincare an average score of 1.3 out of 5. They cite dirty and broken equipment, charges that continue even after equipment has been returned, harassing sales and collection calls, and nightmarish customer service. As one person wrote in April, Lincare is “running a scam where they have guaranteed income” and “the customer can’t do a thing.” Bauer’s oxygen concentrator and Lincare’s Libby, Montana, storefront. The company has 1.8 million customers in 48 states. (Rebecca Stumpf, special to ProPublica) HHS has always been reluctant to cut off big suppliers. Medicare’s first objective is to make sure nothing interrupts the flow of medications, devices and services to beneficiaries. And were HHS to seek to ban Lincare, the company would surely launch a long, costly legal war. But even if the cost of such combat reached many millions of dollars, it would still be a tiny fraction of the amount lost to fraud, which is yet another contributor to the soaring medical costs that bedevil the country. “This is taxpayer money,” said Jerry Martin, a former U.S. attorney who represented an ex-Lincare executive in a whistleblower suit against the company. “We need to pay people that don’t have four corporate-integrity agreements.” Weak enforcement is not the only problem. Lincare is paid to rent oxygen equipment to patients, with HHS covering most of the monthly bills. But those rental fees often add up to many times what it would cost simply to buy the equipment. “If this were a rational country,” Bruce Vladeck, who ran Medicare from 1993 to 1997, told ProPublica, “the government would buy a million [oxygen] concentrators and pay Amazon or somebody to deliver them.” In a seven-month investigation, ProPublica examined how Medicare’s largest provider of home medical equipment has managed to take advantage of its customers for a quarter of a century while fending off meaningful enforcement. ProPublica interviewed more than 60 current and former employees and executives, Medicare and Justice Department officials, patient advocates, and health care experts. ProPublica also reviewed dozens of court cases involving Lincare and thousands of pages of internal company documents, sales presentations and emails. The investigation reveals a dismal picture of a company with a sales culture that depends on squeezing infirm and elderly patients and the government for every penny. Lincare employees are pressured to sell — whether a customer needs a product or not — on pain of losing their jobs. And the company’s record of misbehavior and conflict extends far beyond its sales and billing practices. Lincare has paid $9.5 million in settlements for data breaches and mishandling patient and employee records. It has faced claims of violating wage rules, harassing customers with sales and collection calls, and tolerating racist comments to an African American employee. (Lincare lost the latter suit at trial and is appealing.) The company has repeatedly sparred in court with former executives, including a 2017 suit in which longtime executive Sharon Ford claimed that the company had cheated her out of a $1 million bonus. (A judge ruled in favor of Ford at trial before the case was overturned on appeal.) Ford testified that Lincare had earned an industry reputation as “The Evil Empire.” And when Lincare’s CEO, Crispin Teufel, resigned last year to become CEO of a rival company, Lincare sued him for breach of contract and misappropriating trade secrets. Teufel ultimately admitted to downloading confidential company records and was blocked from taking the new job. (Teufel did not respond to requests for comment. His replacement, Jeff Barnhard, took over as Lincare’s CEO in July 2023.) Lincare declined multiple requests to make executives available for interviews. After ProPublica provided a lengthy document listing every assertion in this article, along with separate such letters to executives McCarthy and Pedersen, the company responded with a three-paragraph statement. It asserted that Lincare is “committed to delivering high-quality and clinically appropriate equipment, supplies, and services” but acknowledged “missteps in the past.” The company said its “new leadership” had “commenced a comprehensive review of our policies and procedures to help ensure we are complying fully with all state and federal regulations” and that “investments and enhancements we have made over the last several months will help prevent these issues from repeating in the future.” Lincare did not respond to follow-up questions requesting examples of the steps the company says it’s taking, including whether it has terminated any executives as part of this push. When ProPublica asked a top Medicare enforcer why Lincare had eluded banishment, her answer suggested she views probation as a continuing ed class rather than a harsh punishment. “It’s like taking a college course,” said Tamara Forys, who is in charge of administrative and civil remedies for HHS’ Office of Inspector General. “At the end of the day, it’s really up to you to change your corporate culture and to study, to learn to pass the class … to embrace that and take those lessons learned and move them forward.” A spokesperson for the Centers for Medicare and Medicaid Services, which runs Medicare, declined to comment on Lincare but said the agency “is committed to preventing fraud and protecting people with Medicare from falling victim to fraud.” There’s little incentive to refrain from misbehaving in an environment that tolerates bad behavior, said Lewis Morris, who was chief counsel to HHS’ Office of Inspector General from 2002 to 2012. “As long as that [settlement] check is less than the amount you stole, it’s a good business proposition." Indeed, Lincare has counted on the government’s tepid response, two former company executives told ProPublica. Top management, they said, responds to fraud warnings by conducting a cost-benefit analysis. “I’ve sat in meetings where they said, ‘We might have $5 to $10 million risk — if caught,’” said Owen Kirk Staggs, who ran one of Lincare’s businesses in 2017 and fell out with the company. “‘But we’ve made $50 million. So let’s go for it. The risk is worth the reward.’” Longtime friends Ben Montgomery and Brandon Haugen worked together in Lincare’s operation in Libby and noticed billing irregularities. (Rebecca Stumpf, special to ProPublica) Libby, Montana, provides a glimpse of the way Lincare operates. Oxygen is an urgent need in this mountain town of 2,857. Libby suffers from the lingering effects of “the worst case of industrial poisoning of a whole community in American history,” in the words of the Environmental Protection Agency. An open-pit vermiculite mine, which operated from 1963 to 1990, coated the area — and residents’ lungs — with needle-like asbestos fibers. More than 2,000 Libby citizens have been diagnosed with respiratory diseases since then; some 700 have died. Hundreds of ailing residents relied on Lincare for home concentrators, which provide nearly pure oxygen extracted from room air. Medicare and Medicare Advantage plans (which the government also funds) covered 80% of the monthly rental of about $135; patients paid the remaining 20%. In 2020, Brandon Haugen noticed something suspicious in Lincare’s bills. Haugen was a customer service representative at the company’s local distribution site, one of 700 such locations around the country. (Lincare serves 1.8 million respiratory patients in 48 states.) Lincare was allowed to charge patients and their insurers for a maximum of 36 months under federal rules. After that point, patients could use the equipment without further charge. Lincare, however, kept billing local patients and their Medicare Advantage plans far beyond 36 months — in some cases, for years. To Haugen, this looked like fraud. Haugen conferred with center manager Ben Montgomery. The two, who had grown up in the area, had been buddies since seventh grade, after getting to know each other at summer Bible camp. Then 38, earnest and just beginning to gray out of their boyishness, the two men were concerned. The patients the men dealt with were their neighbors. A regional Lincare manager assured them that charging beyond 36 months for Medicare Advantage patients “is the correct way to bill.” Skeptical, Montgomery raised the issue with Lincare’s headquarters in Clearwater, Florida. Lincare’s compliance director told him, according to Montgomery, that “it’s the patients’ problem to fix it if they want it to stop”; that was “just how it worked.” Further questions, sent to Lincare’s chief compliance officer, Pedersen, went nowhere. “It seemed pretty obvious they were well aware of this,” Montgomery told ProPublica. “For me, these were my customers that you were screwing over.” Among them was Neil Bauer, now 80, who lives in a ramshackle house “out in the boondocks,” as he put it, 38 miles southeast of Libby. Bauer spent his career as a barber, head of investigations for the county sheriff’s department and a member of the local school board. He’s been on oxygen for more than a decade and quickly gets short of breath. “I can’t do stuff so much now,” he said. His wife is on oxygen, too. “We just have a sick family,” Bauer said. How Lincare Billed Over $16,000 for a Breathing Device that Costs $799 Neil Bauer needed an oxygen concentrator to cope with asbestosis. Rather than buying one — which costs about $799 today — Medicare Advantage rented one from Lincare and paid 80% of the monthly charges. Bauer covered the remaining 20%. Companies can bill for a maximum of 36 months, after which patients are entitled to use the equipment without further charge. *This calculation undercounts the amounts Lincare billed; $27.35 for Bauer (and $109.40 for Medicare) represent the amounts Lincare was charging at the end of the time Bauer was billed. The monthly charges were higher earlier in the period, but ProPublica could not gain access to all of Bauer’s account statements, so we used the lower, more conservative figures. Lincare had kept billing Bauer for his concentrator for seven years after it was supposed to stop. The monthly copays weren’t huge, but they added up to $2,325 that he shouldn’t have been charged over that period, a daunting sum for Bauer, who lives on a fixed income — and a hefty mark-up over the cost of the equipment, which can be purchased online for $799. For its part, Medicare Advantage paid Lincare $9,299 for Bauer’s concentrator during this period, along with another $5,760 for the months Lincare was legally permitted to bill. All told, the rental payments to Lincare, during authorized and unauthorized periods, were $16,547 for that one $799 piece of equipment. “We paid forever,” said Bauer. “Never was I told that we could have one without having to pay anything.” Haugen and Montgomery studied billing records. Among the customers in their tiny office, Lincare was improperly charging at least 33 people and their Medicare plans. The two began to wonder how far this problem extended. An employee in Idaho confirmed the same practice was occurring there. “In my mind,” Montgomery said, “I went, ‘This is Libby, Montana. Multiply that by every center in the country. This is obviously a lot bigger deal.’” Montgomery and Haugen had seen enough. On Jan. 18, 2021, they emailed a joint resignation letter to Lincare’s top management, recounting their concerns about billing that “likely affects thousands of patients company wide.” Citing the lack of response from corporate officials, they wrote, “we can only conclude that this is a known issue that is being covered up by Lincare.” Haugen had 10 children. Montgomery had four. Neither man had another job lined up. “Had this not happened,” said Montgomery, who had been at the company for 13 years, “I would have seen myself retiring from Lincare.” Instead, they became whistleblowers. They retained a law firm and sued Lincare in Spokane, Washington, the site of Lincare’s regional headquarters. After federal prosecutors decided to back the case, Lincare settled in August 2023. The company admitted to overbilling Medicare plans and patients across the country for years and paid $29 million to settle the matter, with $5.7 million of that going to Montgomery, Haugen and their lawyers. Dan Fruchter, the assistant U.S. attorney leading the government’s case, told ProPublica that the overbillings likely involved “tens of thousands” of patients. Lincare agreed to its fourth stint of probation with HHS; the new corporate-integrity agreement took effect on the day after the previous one expired. The conduct Montgomery and Haugen flagged had gone on for years while the company was already on probation. But Lincare got the government lawyers to agree that nobody would try to impose the Medicare death penalty. Lincare asserted in the settlement that it had installed software (which it did only after learning of the government investigation) that will prevent billing beyond 36 months. Lincare promised to ensure “full and timely” compliance with the agreement and prevent future wrongdoing. “We paid forever,” said Bauer, seen at his house outside Libby. He didn’t realize at the time that Lincare had been wrongly billing him for years. (Rebecca Stumpf, special to ProPublica) Medicare fraud, including in the “durable medical equipment” category that Lincare operates in, has long been an intractable problem. It cost the U.S. Treasury an estimated $60 billion in 2023 alone. The government deploys large sums to try to stop it. HHS’ inspector general’s office has a $432 million budget and a staff of 1,600. Those resources are effectively extended by whistleblowers — most of the cases against Lincare have been such suits — who can receive a percentage of a civil settlement if they reveal wrongdoing, and by federal prosecutors, who can also bring cases or join those filed by whistleblowers. Last year HHS recovered $3.2 billion from fraudulent schemes. But the agency’s enforcers have wielded their biggest deterrent almost entirely against small perpetrators. In 2023, they banned 2,112 small firms and individuals from Medicare reimbursement. HHS hasn’t done the same with companies that operate on a national scale. Forys, the agency enforcer, said she worries that expelling a big provider from Medicare could leave customers in the lurch. In April, Inspector General Christi Grimm defended her office’s work in congressional testimony but also asserted that its resources are inadequate. A lack of staff keeps it from even investigating “between 300 and 400 viable criminal and civil health care cases” annually, she testified, as well as more than half the fraud referrals from Medicare’s outside audit contractors. A different reason for going easy on big companies was suggested by Vladeck, the former Medicare chief. Seeking to bar a large supplier for repeatedly violating probation would require exhaustive documentation and years of litigation against squadrons of well-paid corporate lawyers. As a result, Vladeck said, “there’s a real incentive, from a bureaucratic point of view, to just slap their wrist, give them a kick and make them apologize. … It’s a cost of doing business.” There are steps enforcers could take, but almost never do, that would make companies take notice, according to Jacob Elberg, a former federal prosecutor who is now a professor at Seton Hall Law School. (Among his publications is a 2021 law review article titled “Health Care Fraud Means Never Having to Say You’re Sorry.”) Elberg’s research shows that HHS and prosecutors tend to negotiate far smaller civil settlements than the law allows, and they rarely prosecute company executives. They also almost never take cases to trial. In short, enforcers have long signaled to companies that they’re looking for a smooth path to a cash payment rather than a stern punishment for a company and its leaders. “It is generally a safe assumption,” Elberg said, “that the result will be a civil settlement at an amount that is tolerable.” For its part, Congress may soon be weighing a new law that would reshape how the oxygen industry is paid by Medicare. But rather than clamp down on corporations, the legislation seems poised to do the opposite. A new bill called the SOAR (Supplemental Oxygen Access Reform) Act would hand companies like Lincare hundreds of millions more, by raising reimbursement rates and eliminating competitive bidding among equipment providers. Advocates say the legislation will help patients by making some forms of oxygen more available and improving service. But along the way it will reward Lincare and its rivals. Congress has a history of treating oxygen companies generously. For years, lawmakers set Medicare reimbursements for oxygen equipment at levels that even HHS, in 1997, characterized as “grossly excessive.” Over the succeeding decade and a half, Lincare took advantage, snatching up hundreds of small suppliers and becoming the industry’s largest player. In 2006, under pressure to reduce costs, Congress approved steps to curb oxygen payments, including the introduction of competitive bidding and the 36-month cap on payments for equipment rentals. But even those strictures were watered down after the industry poured money into political contributions and lobbyists, who warned that cuts would harm elderly patients. Lincare compensated by amping up strategies that generated profits, with little apparent regard for Medicare’s rules, which say it will reimburse costs for equipment only when there is evidence of “medical necessity.” The company aggressively courted doctors and incentivized sales, through bonuses the company paid for each new device “setup.” According to a 2016 commission schedule, reps could earn $40 for winning an order for a new sleep apnea machine, $100 for a new oxygen patient and $200 for a noninvasive ventilator. The entire staff of each Lincare center could receive a small bonus for signing up a high percentage of new patients for automatic monthly billing. Patients who refused auto-billing, a company document advised, should be warned they might face “collection activity” and service cutoffs. “Sales is our top priority!” declared a 2020 PowerPoint to train new hires. Once it had a customer, Lincare would pitch them more costly products and services. One way Lincare did this was through a program called CareChecks. Promoted as a “patient monitoring” benefit, CareChecks were aimed, according to a company presentation, at generating “internal growth.” If a patient exhibited a persistent phlegmy cough, Lincare could persuade their doctor to prescribe a special vibrating vest to loosen chest mucus. Nebulizer patients might be candidates for home oxygen. Patients using apnea devices were potential candidates for ventilators. “We’d make patients think we were coming in clinically to assess them,” a former Lincare manager said, “when really it was to make money off of them.” Selling replacement parts could also be lucrative. At Lincare call centers that sold items like hoses, masks and filters for CPAP machines (used to treat apnea), hundreds of commissioned agents in Nashville, Tennessee, and Tampa, Florida, were equipped with programs displaying what items each patient was eligible for under Medicare. By law, patients had to request replacement parts. But frequently, that wasn’t what happened, according to Staggs, who oversaw the CPAP business in 2017. He discovered that top salespeople, whose bonuses could total $8,000 a month, averaged just a few minutes on the phone per order. That wasn’t nearly enough time to identify what items, if any, customers actually needed. Staggs listened to recorded calls and found that, after reaching customers, agents often placed them on hold until they hung up, then ordered them every product that Medicare would cover. At Lincare, results were closely tracked and widely shared in weekly emails displaying the best and worst performers in each region. Notes taken by one manager show supervisors’ performance demands during weekly conference calls: “Unacceptable to miss goal … stop the excuses … If this is not being done, wrong [center manager] in place … If you’re not getting O2 and not getting Care Checks — you shit the bed. Stop accepting mediocre, lazy responses ….” “If we didn’t meet our quota, they were going to chop our heads,” said former Illinois sales rep Sandra Gauch, who worked for Lincare for 17 years before joining a whistleblower suit and quitting in 2022. One salesperson was so fearful of missing her quota, according to Gauch, that she signed her mother up for a ventilator that she didn’t need. A company audit in 2018 found that only 10 of 56 ventilator patients at one center were using them consistently. Some patients hadn’t used their devices for years. Yet Lincare kept billing Medicare. Lincare has 700 locations around the country, including this one in Libby, where widespread asbestos contamination left thousands with serious breathing problems. (Rebecca Stumpf, special to ProPublica) Only one thing mattered as much as maximizing new equipment rentals, according to former employees and company documents: minimizing customers’ attempts to end rentals. A call to retrieve breathing equipment meant that it was no longer wanted or being used, and Lincare was supposed to retrieve it and promptly stop billing Medicare and the patient. The person’s health might have improved. They might have gone into the hospital — or died. The reason didn’t matter; at Lincare, “pickups” were a black mark, deducted from employees’ performance scores, jeopardizing their bonuses and jobs. As a result, employees said, such requests were dreaded, delayed and deterred. Clinical staff were sent to “reeducate” customers to keep using their devices. Patients were told they’d need to sign a form stating they were acting “against medical advice.” Lincare managers made it clear that pickups should be discouraged. In a 2010 email, an Ohio center manager instructed subordinates: “As we have already discussed, absolutely no pick-ups/inactivation’s are to be do[ne] until I give you the green light. Even if they are deceased.” In 2018, an Illinois supervisor emailed her deputies that pickups were barred without her explicit approval: “Not even Death that I don’t approve first.” In February 2022, Justin Linafelter, an area manager in Denver, responded to the latest corporate email celebrating monthly “Achievement Rankings” for oxygen sales by pointing out that almost all of the centers atop the rankings had at least 150 “pending pickups,” customers who weren’t using their equipment but whom the company appeared to still be billing. “Some of these centers are just ignoring pickups to make this list.” That was only one of Linafelter’s concerns. In July of that year, he emailed headquarters, saying he no longer had “the resources to be successful at my job.” The customer service staff in Denver had been cut in half, Linafelter explained, and he’d been barred from hiring replacements. Denver’s remaining staff was “at a point of exhaustion,” threatening patient care. The morning after Linafelter expressed concerns to Lincare in 2022, he was summoned to a conference call with the head of HR and fired, for what he was told was a “corporate restructuring.” Linafelter, who had worked at Lincare for nine years, said, “I got thrown away like a piece of trash.” Other former employees offer similar accounts. In 2020, Jillian Watkins, a center manager in Huntington, West Virginia, repeatedly alerted supervisors that Lincare was improperly billing for equipment that patients weren’t using. Lincare blocked her from firing a subordinate who’d falsified documents supporting the charges, then fired Watkins, citing “inadequate direction and leadership.” Then came a series of turns. Pedersen, the chief compliance officer, effectively confirmed Watkins’ assertions, belatedly alerting the government about $486,000 in improper billings by Lincare. But Pedersen blamed the billings on Watkins, writing to Medicare that the company had “terminated” her to “prevent [the problem] from recurring.” After Watkins sued, Pedersen admitted in a deposition that Watkins’ firing “had nothing to do with the overpayment.” In April 2024, a federal judge ruled that Watkins had presented “a prima facie case of retaliation.” The suit was privately settled in mediation. Staggs, too, was ousted, he said, after he warned top Lincare executives about improper practices at the CPAP call centers. Staggs emailed a Lincare HR officer: “Patients are being shipped supplies that they never have ordered. … This is fraud and I have gotten zero support or attention to this matter when I raise the issue to my leadership.” Only months after starting, he was fired in November 2017. He later filed a whistleblower suit; Lincare denied wrongdoing. After the U.S. attorney’s office in Nashville declined to join the case in 2022, Staggs withdrew the action. Staggs’ account of improper billings matches an industry pattern that appears to continue to this day. In a 2018 report, HHS’ inspector general estimated that Medicare had paid more than $631 million in improper claims for CPAP and other supplies over a two-year period. Another HHS analysis identified an additional $566 million in potential overpayments for apnea devices. The agency’s oversight “was not sufficient to ensure that suppliers complied with Medicare requirements,” the 2018 report concluded. Six years later, HHS has not taken public action against Lincare relating to CPAPs. Today, fraudulent billing among Medicare equipment providers remains a “major concern,” according to the inspector general. The agency says it continues to review the issue. Doris Burke contributed research.

— A 13-Year-Old With Autism Got Arrested After His Backpack Sparked Fear. Only His Stuffed Bunny Was Inside.

 

at 11/13/24 3:00am

by Aliyya Swaby, ProPublica, and Paige Pfleger, WPLN/Nashville Public Radio ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up for Dispatches, a newsletter that spotlights wrongdoing around the country, to receive our stories in your inbox every week. On the second day of school this year in Hamilton County, Tennessee, Ty picked out a purple bunny from hundreds of other plushies in his room. While his mom wasn’t looking, the 13-year-old snuck it into his backpack to show to his friends. It was the 10th anniversary of his favorite video game franchise, Five Nights at Freddy’s, and Bonnie the bunny is one of the stars. Ty has autism and Bonnie is his biggest comfort when he gets agitated or discouraged. No one other than Ty, not even his mom, is allowed to touch Bonnie. Ty was new to Ooltewah Middle School, located just east of Chattanooga. In class that morning, he told his teacher he didn’t want anyone to look in his backpack, worried they would confiscate his toy, according to Ty and his mom. When the teacher asked why, Ty responded, “Because the whole school will blow up,” he and his mom recalled. School officials acted quickly, Ty’s mom said: The teacher, who had only known Ty for one day, called a school administrator, who got the police involved. They brought Ty to the counselor’s office and found Bonnie in the backpack. As Ty stood there, he said, confused about what he had done wrong, the police handcuffed him and patted him down before placing him in the back of a police car. “I think they thought an actual bomb was in my backpack,” Ty told ProPublica and WPLN. But he didn’t have a bomb. “It was just this, right here,” he said, holding Bonnie. “And they still took me to jail.” The sheriff’s department issued a press release about the incident stating that police checked the backpack and it was “found to not contain any explosive device.” ProPublica and WPLN are using a nickname for Ty at his mother’s request, to protect his identity because he’s a minor. The sheriff’s department didn’t respond to questions about Ty’s case. The Hamilton County School district, which includes Ty’s school, declined to respond, even though his mother signed a form giving officials permission to do so. Ty’s arrest was the result of a new state law requiring that anyone who makes a threat of mass violence at school be charged with a felony. The law does not require that the threat be credible. ProPublica and WPLN previously reported on an 11-year-old with autism who denied making a threat in class and was later arrested at a birthday party by a Hamilton County sheriff’s deputy. Advocates had warned Tennessee lawmakers during this year’s legislative session that the law would be particularly harmful for students prone to frequent outbursts or disruptive behavior as a result of a disability. Lawmakers did include an exception for people with intellectual disabilities. And according to Ty’s mom and a school district psychological report, Ty has an intellectual disability as defined by Tennessee statute, in addition to autism. But the family’s lawyer said there is no evidence that law enforcement took that into consideration — or even checked to see if Ty had a disability — before handcuffing and arresting him. The law doesn’t state how police should determine whether kids have intellectual disabilities before charging them. Rep. Cameron Sexton, the Tennessee House speaker and Republican co-sponsor of the law, said Ty’s case shows that “there may need to be more training and resources” for school officials and law enforcement. Rep. Bo Mitchell, a Nashville Democrat who co-sponsored the law, said he hoped the exception for kids with intellectual disabilities would be enough to keep students like Ty from being arrested. “No one passed that law in order for a child with any type of disability to be charged,” he said. But he said the law was still necessary to help prevent hoax threats that disrupt learning and terrify students. “I don’t know whose level of trauma is going to be the greatest: the kids in the classroom wondering if there’s an active shooter roaming their halls or a kid that didn’t know better and says something like that and gets arrested,” Mitchell said. “It’s a no-win situation.” The state does not collect information about how the felony law, which went into effect in July, has applied to kids with disabilities like Ty. Data from Hamilton County provides a limited glimpse. In the first six weeks of the school year, 18 kids were arrested for making threats of mass violence. A third of them have disabilities, more than double the proportion of students with disabilities across the district. Before the academic year began, Ty’s mom sent an email to school officials asking for their help to make her son’s transition to eighth grade as smooth as possible. Ty’s specialized education plan states that he is social and friendly with other students but regularly has outbursts and meltdowns in class due to his disability. He struggles to regulate his feelings when asked to follow classroom guidelines and to understand social situations and boundaries. Federal law prohibits his school from punishing him harshly for those behaviors, since they are caused by or related to his disability. But Ty’s principal later told his mom in an email that Tennessee’s threats of mass violence law requires school officials to report the incident to police. When Ty’s mom got the phone call that her son was going to be arrested, she said it was her worst fear come true: Her son’s autism was mistaken for a threat. “Once you looked at his backpack, if there was nothing in there to hurt anyone, then why did you handcuff my 13-year-old autistic son who didn’t understand what was going on and take him down to juvenile?” she said. Disability rights advocates said kids like Ty should not be getting arrested under the current law. And they tried to push for a broader exception for kids with other kinds of disabilities. In a meeting with Mitchell before the law passed, Zoe Jamail, the policy coordinator for Disability Rights Tennessee, explained that the legislation could harm kids with disabilities who struggle with communication and behavior — such as those with some developmental disabilities — but aren’t diagnosed with an intellectual disability. She proposed language that Mitchell and other sponsors could include in the law, to ensure children with disabilities were not improperly arrested. “No student who makes a threat that is determined to be a manifestation of the student’s disability shall be charged under this section,” one version of the amendment read. The amendment was never taken up for a vote in the state legislature. Lawmakers passed the narrower version instead. “I think it demonstrates a lack of understanding of disability,” Jamail said. Sexton, the Republican House speaker, said kids with disabilities were capable of carrying out acts of mass violence and should be punished under the law. “I think you can make a lot of excuses for a lot of people,” he said. Ty still doesn’t fully grasp what happened to him, and why. On a recent morning in October, Ty turned the stuffed bunny toward his mom and asked, “Is he the reason why I can’t bring plushies anymore?” Ty’s mom told him the reason is because he didn’t ask first. “You can’t just sneak stuff out of the house,” she said. “Will I get in trouble for that?” he asked her. “Yeah, absolutely,” she said. “You want them to possibly think it’s another bomb and take you back down to kiddie jail?” “No,” he said, emphatically. After the incident, Ty’s middle school suspended him for a few days. His case was dismissed in juvenile court soon after. The principal told Ty’s mom in an email that if Ty said something similar again, the school would follow the same protocol. She decided to transfer him out of Ooltewah Middle School as soon as she could. “Whenever we go past that school, Ty’s like: ‘Am I going back to jail, mom? Are you taking me back over there?’ He’s for real traumatized,” she said. “I felt like nobody at that school was really fighting for him. They were too busy trying to justify what they did.” Mitchell, the Democratic representative, said he was “heartbroken” to hear that Ty was handcuffed and traumatized. But, he added, “we’re trying to stop the people who should know better from doing this, and if they do it, they should have more than a slap on the wrist.” He said he would be open to considering a carve-out in the law in the upcoming legislative session for kids with a broader range of disabilities. But, he said, he believes that the law as it stands is making all children in Tennessee, with or without disabilities, safer. Help ProPublica Report on Education

— Despite Biden’s Promise to Protect Old Forests, His Administration Keeps Approving Plans to Cut Them Down

 

at 11/12/24 4:00am

by April Ehrlich, Oregon Public Broadcasting, McKenzie Funk, ProPublica, and Tony Schick, Oregon Public Broadcasting This article was produced by ProPublica in partnership with Oregon Public Broadcasting. Sign up for Dispatches to get stories like this one as soon as they are published. On Earth Day in 2022, President Joe Biden stood among cherry blossoms and towering Douglas firs in a Seattle park to declare the importance of big, old trees. “There used to be a hell of a lot more forests like this,” he said, calling them “our planet’s lungs” and extolling their power to fight climate change. The amount of carbon trees suck out of the air increases dramatically with age, making older trees especially important. These trees are also rare: Less than 10% of forests in the lower 48 states remain unlogged or undisturbed by development. The president uncapped his pen, preparing to sign an executive order to protect mature and old-growth forests on federal lands. “I just think this is the beginning of a new day,” Biden said. But two years later, at a timber auction in a federal office in Roseburg, Oregon, this new day was nowhere to be seen. As journalists and protestors waited outside, logging company representatives filed through a secure glass door to a room where only “qualified bidders” were allowed. Up for sale this September morning were the first trees from an area of forest the Bureau of Land Management calls Blue and Gold. It holds hundreds of thousands of trees on 3,225 acres in southern Oregon’s Coast Range. Forests here can absorb more carbon per acre than almost any other on the planet. A week after Biden’s executive order, the Blue and Gold logging project had been shelved. Now it was back on. The BLM is moving forward with timber sales in dozens of forests like this across the West, auctioning off their trees to companies that will turn them into plywood, two-by-fours and paper products. Under Biden, the agency is on track to log some 47,000 acres of public lands, nearly the same amount as during President Donald Trump’s first term in office. This includes even some mature and old-growth forests that Biden’s executive order was supposed to protect. An Oregon Public Broadcasting and ProPublica analysis found the bureau has allowed timber companies to cut such forests at a faster pace since the executive order than in the decade that preceded it. Environmental activists protest outside the Bureau of Land Management office in Roseburg, Oregon, during a timber sale. The auction itself took place behind closed doors and only “qualified bidders” were allowed in. (Leah Nash, special to ProPublica) The BLM still reports to Biden until Trump takes office again in January, and it’s unclear what changes, if any, the new administration will make. Outgoing presidents often use this lame-duck period to take additional action on the environment and to protect public lands. In a statement, White House spokesperson Angelo Fernández Hernández wrote that the “Biden-Harris Administration has made unprecedented progress toward the climate-smart management and conservation of our nation’s forests.” He did not specifically answer questions about why Biden’s actions didn’t slow the BLM’s cutting of old forests — or about any further protections the administration is planning now. At the timber auction that September morning, the bidders emerged 80 minutes after they started. For $4.2 million, the administration had just sold off the first 561 acres of Blue and Gold, an estimated 83,259 trees. One of the most accessible patches of forest in the Blue and Gold project is 30 minutes up the highway from Roseburg. On a recent fall afternoon, Erich Reeder, a BLM wildlife surveyor who had just retired from the agency after 23 years, led the way there. The sun was out as he drove into the Coast Range, but soon after he turned off the highway and followed a single-lane road along the banks of Yellow Creek, trees shaded the way. Ribbons marked the edge of the area that will be logged. Reeder walked past them and into the forest, stepping lightly through sword ferns and over moss-covered logs, pausing to look down at a paper map or straight up at the varied canopy above. Erich Reeder, a retired BLM wildlife surveyor, in the forest above Oregon’s Yellow Creek, an area slated for future logging. (Leah Nash, special to ProPublica) In planning documents for Blue and Gold, the BLM describes this part of the forest as being composed of young, tightly packed trees with no remnants of older forest. But the trees here did not match that description. They were widely spaced. There were no stumps, no signs of previous logging. The forest was tall and wild, with large branches and multiple layers of canopy and understory. Native tree species including chinkapin oaks, western hemlock, western red cedar and grand fir intermixed with the dominant Douglas fir. Many of the biggest trees had thick, wrinkled bark, indicating old age. “You’re familiar with tree farms?” Reeder asked, describing the monoculture rows timber companies often plant after clear-cutting. This was the opposite. For some endangered species, old-growth forest matters immensely. Marbled murrelets, rotund coastal birds sometimes described as “flying potatoes,” nest only in the large, mossy branches of old trees. Spotted owls, which were at the center of the 1990s timber wars in this part of Oregon, require similar habitat to survive. Old trees also matter for climate change, as Biden noted in his Seattle speech. The larger a tree is, the more carbon it absorbs. Data from the U.S. Forest Service shows that in forests older than 200 years in Oregon, on average, the trees hold more than three times as much carbon per acre as young industrial timber plantations. Ultimately, leaving forests intact keeps more carbon out of the atmosphere than logging them and planting new ones. Down the hill toward Yellow Creek, Reeder pulled out a measuring tape at the base of one particularly large Douglas fir. Its diameter: 86 inches. If it was chopped down, Reeder could lie across the stump with more than a foot to spare. In the planning documents, the BLM estimated the trees in this area were around 90 years old. “Yeah, this is a little bit older than 90,” Reeder said dryly. He put its age at 400 to 600 years. Reeder, left, and Madeline Cowen, an organizer with the environmental group Cascadia Wildlands, measure an old-growth tree in the Yellow Creek area. (Leah Nash, special to ProPublica) BLM officials believe federal law forces them to keep chopping trees. It’s part of a balancing act between resource extraction and other priorities, like recreation and conservation. “We are a multi-use agency,” spokesperson Brian Hires wrote in response to questions from OPB and ProPublica. “We are committed to forest health and providing the timber Americans need.” Across the country, the agency manages 245 million acres, including vast territories of desert and juniper trees, along with rangeland it leases out to ranchers. Among its holdings in Oregon are 2.4 million acres of green forests. A big portion of these are known as O&C lands because they once belonged to the Oregon and California Railroad until a deal with Congress went wrong. The federal government took them back, resulting in a giant checkerboard of alternating public and private squares. The O&C Act of 1937 says the federal government must manage these lands for “permanent forest production” under the principle of “sustained yield,” helping local economies while also protecting watersheds and providing recreation opportunities. The timber industry interprets the 1937 act as primarily a logging mandate, and it has sued the BLM for setting aside too many O&C acres for conservation. This view is shared by local counties that historically received part of the BLM’s sales revenues to pay for schools and roads and that still rely on the industry for jobs. Trees cut on federal lands can’t be shipped overseas and typically go to local mills. And “it’s not just the mills,” says Doug Robertson, executive director of the Association of O&C Counties. “It’s everything that supports the mills: all of the manufacturing, the trucking, and on and on.” But how much logging the O&C Act mandates is subject to debate. The act directs the BLM to set its own quotas for timber sales, and it does so. In 2016, the agency drew up a regional logging plan with annual targets for each district in Oregon’s Coast Range, taking care, in theory, to avoid sensitive habitat for species like the spotted owl. It protected three-quarters of the O&C lands from regular logging, and even in those areas where logging would be allowed, there were new prohibitions against cutting the biggest, oldest trees. There were problems with the bureau’s approach, however. It created its logging maps based on a database of tree ages that local staff in Oregon warned didn’t accurately capture the old-growth forest that serves as owl habitat. A leaked 2014 memo by a BLM wildlife biologist suggested that the bureau “field verify all stands” before deciding which areas could be cut, meaning it should visually inspect them instead of relying on data alone. There’s no evidence agency officials followed this recommendation. They used the database in developing the 2016 plan and again in recent years in deciding which Blue and Gold areas would be up for sale. The BLM also has tried to avoid detailed environmental reviews as it moves to log in new areas, saying it sufficiently considered impacts in 2016. Over and over, conservation groups have sued to demand full reviews, which can be required by federal law. Over and over, courts have decided against the bureau, in most cases directing it to redo its analysis before logging can continue. The BLM lost at least three such lawsuits between 2019 and 2022, with judges ruling that it failed to take a “hard look” at impacts or calling its decisions “arbitrary and capricious.” This approach could have ended with Biden’s Earth Day executive order. It called for a national inventory of mature and old-growth forests, an analysis of the threats to them, and future regulations to protect them. But all of these prescriptions ultimately have proved too vague to bring about change. Unlike the BLM, the U.S. Forest Service, the biggest federal forestland manager in Oregon and the country, responded to Biden’s order by proposing to update management plans for all national forests with new regulations for protecting old growth. These plans outline how a forest will be managed — like logging parameters, species protections, restoration projects and road maintenance. The updates will include a prohibition on cutting old growth solely for commercial reasons. The BLM, on the other hand, said nothing about changing its current forest plans. Hires, the agency spokesperson, wrote that Biden’s executive order builds on the bureau’s “existing efforts” to protect mature and old-growth forests, offering “further clarity” but not a new direction. The BLM did issue a new rule stating it is “working to ensure” that these forests are managed to “promote their continued health and resilience.” But the rule does not include hard stipulations protecting them from logging — so the logging continues. OPB and ProPublica compared the agency’s forest database for Oregon to its timber records and found that in the past two years, the BLM oversaw logging in more than 10,000 acres of forest it labeled as at least 80 years old — the age at which the BLM and Forest Service consider western Oregon’s conifers to be “mature”. The average number of acres of older forest logged annually since the president’s executive order is already higher than in any two-year span since at least 2013. On Dead Horse Ridge, in a part of Oregon’s Coast Range known as Blue and Gold, clear-cut private lands meet forested public lands. Soon, much of this whole area could be logged. (Leah Nash, special to ProPublica) Last year, a pair of appellate court rulings called into question the idea that the O&C Act is little more than a logging mandate. Judges affirmed the BLM and its parent agency, the Department of Interior, have “significant discretion” in determining how much to cut and where. “The Department’s duty to oversee the lands is obligatory,” reads a 2023 opinion from the 9th U.S. Circuit Court of Appeals, “but treating every parcel as timberland is not.” For now, tree sales set in motion in 2016 are still in motion. The bureau does not expect to revisit its logging plan for Oregon’s Coast Range until 2028 at the earliest. The list of areas to be cut, including Blue and Gold, remains unchanged. And it is likely the incoming administration will look to expand logging on public lands. Project 2025, a transition plan prepared by Trump allies at The Heritage Foundation, mentions the O&C Act by name and recommends that “the new Administration must immediately fulfill its responsibilities and manage the O&C lands for ‘permanent forest production’ to ensure that the timber is ‘sold, cut, and removed.’” Since Biden’s executive order, environmental groups have sued the BLM at least four more times for avoiding full environmental reviews of logging projects. In two of these cases, the bureau again lost in court. A third case ended in a settlement, with the bureau agreeing to pause operations and redo its environmental analysis. The newest case, filed three days before the timber auction in Roseburg, is over Blue and Gold. To give access to loggers within the Blue and Gold project area, the BLM plans to improve “existing roads” like the one pictured here, which would include clearing underbrush and potentially cutting trees. (Leah Nash, special to ProPublica) Environmental groups in Oregon can’t challenge every BLM logging project. “We just don’t have the capacity,” said attorney Nick Cady of Cascadia Wildlands, one of three groups that filed a joint lawsuit to stop the plan for Blue and Gold. This one stands out, he said, because of the apparent age of the forest. Blue and Gold is also the only logging project known to have been paused in response to Biden’s executive order, then reinstated. Heather Whitman, the BLM district manager in Roseburg, says the bureau remade the logging plan for Blue and Gold after she decided to pause it. The project now relies more on forest thinning and less on methods that, to a layperson, can look much like clear-cuts. “Quite a bit changed,” she says. But Blue and Gold still depends on the same database of forest ages as before, and, as the new lawsuit points out, questions about the data’s accuracy remain. In 2022, the bureau declared the forest above Yellow Creek to be 60 years old. In 2024, after restarting the project, the bureau inexplicably revised the forest’s age to 90 years. A dozen other areas had their ages jump around, too. A handful are said to be younger now than they were two years ago. After all that, nearly as many acres of Blue and Gold will be logged as would have been before. Roseburg officials wrote that the project must proceed because of their district’s ongoing “need to produce timber volume.” Trees greater than 40 inches in diameter or older than about 175 years are, in most cases, protected under the BLM’s 2016 management plan for Oregon’s Coast Range. But if logging does go forward here, the intact forests these trees now anchor will be transformed, says Reeder, the retired BLM surveyor. The older trees themselves, more exposed in the landscape, could be more vulnerable to windstorms. The soil around them could dry out. The BLM estimates that after logging, the risk of wildfires — a focus of Biden’s Earth Day speech — will go down in Blue and Gold in the long term, but that for decades some areas of forest will have a higher fire risk. If burned, the trees’ stored carbon will be released back into the atmosphere. Because the BLM skipped a comprehensive environmental review of Blue and Gold, it did not look in detail at how the project will affect carbon storage and climate change. The new lawsuit claims that the bureau also skipped detailed analyses of other potential impacts, including heightened landslide risk and invasions of nonnative plants. The BLM did carry out a quicker initial review of likely impacts to the ecosystem, including hiring a contractor to search the forest for endangered spotted owls. But “it was rushed at the beginning,” recalled Tom Baxter, one of the owl surveyors hired to do the job. First image: Tom Baxter, who has been a spotted owl surveyor for 14 years, at his home in Dexter, Oregon. Baxter, who surveyed the Blue and Gold project area for the Bureau of Land Management, said the project was rushed and short-staffed, and that the equipment he was given was not high quality. Second image: Spotted owl survey markers in the Yellow Creek area. (Leah Nash, special to ProPublica) Baxter said the contractor he worked for was called in just weeks ahead of the survey. As a result, his team was shorthanded. Then the BLM had the surveyors fan out across the entire project area, instead of focusing on the parts of the forest most likely to have owls — a “peanut butter” approach that he says spread the team too thin. “We were wasting our time in places where I knew there weren’t going to be spotted owls,” Baxter recalled. What the bureau’s initial review does show is that the Blue and Gold project will destroy 119 acres of prime spotted owl habitat and “downgrade” another 1,539 acres. The logging will periodically cloud the waters of Yellow Creek, where threatened Oregon Coast coho salmon go to spawn. And it could kill or harm up to 13 endangered murrelet chicks. But the BLM, summing up its findings in a notice published two weeks before the first trees went on sale, concluded that there would be “no significant impact” on the environment. Cady, the Cascadia Wildlands attorney, disagrees. For conservation groups, Blue and Gold is just the latest logging project that Biden’s executive order failed to stop. “There is a massive disconnect between the administration and what’s happening on the ground,” Cady said. Do You Have a Tip for ProPublica? Help Us Do Journalism. Agnel Philip of ProPublica contributed data analysis. Correction Nov. 13, 2024: This story originally misstated a logging project’s impact on endangered marbled murrelet chicks. It could kill or harm an estimated 13 of them; it isn’t definitively known that it will kill them.

— An Idaho Baby’s Unexplained Death Got No Autopsy and a Scant Coroner’s Investigation. State Law Says That’s Fine.

 

at 11/11/24 4:00am

by Audrey Dutton, photography by Natalie Behring for ProPublica ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up for Dispatches, a newsletter that spotlights wrongdoing around the country, to receive our stories in your inbox every week. A police officer heard wailing as he approached the house in a farming community near Idaho Falls, Idaho. It was freezing cold in the predawn darkness of 6:10 a.m. on Feb. 1, and Alexis Cooley was “hysterical,” the officer wrote later. He followed her into the house. To Alexis, nothing felt real in that moment. It was like her eyes were a video screen playing a movie. More officers and sheriff’s deputies arrived. An ambulance pulled up. When Alexis called 911 minutes before, she’d said between sobs and frantic pleas for help that the baby wasn’t breathing and his body was cold. Medics performed CPR on her newborn son’s 12-pound body, though it was futile. Still, the medics asked: Would you like us to take him to the hospital? Yes, save my baby, Alexis remembers saying, and soon she was in her husband Diamond’s pickup truck, following the ambulance to the hospital. The doctor pronounced Onyxx Cooley dead two minutes after arrival. In the hours that followed, as Alexis and Diamond Cooley sat with their baby’s body, the search for answers about what took his life was supposed to begin. The person whose job is to find those answers, the elected coroner of Bonneville County, failed to do so. He never asked Alexis and Diamond about the days preceding Onyxx’s death, never visited the scene, never performed a reenactment of the infant’s sleeping position, never ordered an autopsy. Some or all of these steps are prescribed by the Centers for Disease Control and Prevention, the U.S. Department of Justice, the National Association of Medical Examiners and the American Academy of Pediatrics when an otherwise healthy infant dies. The guidelines exist to help coroners identify accidental suffocation, abuse or medical disorders that went undetected. The guidelines also make it possible to flag risks that, if discovered, may help keep other children alive. “If you don’t look, you’re not going to find,” said Lauri McGivern, medicolegal death investigator coordinator in Vermont’s Office of the Chief Medical Examiner, chair of the National Association of Medical Examiners’ medicolegal death investigation committee and past president of the American Board of Medicolegal Death Investigators. “We need to know why infants are dying.” But nothing in Idaho law says an elected county coroner must follow any national standards for death investigations. So, many of them don’t. A child who dies unexpectedly or outside of a doctor’s care in Idaho is less likely to be autopsied than anywhere else in the United States. In the case of baby Onyxx, without a word to Alexis or Diamond, Bonneville County coroner Rick Taylor simply decided the death was an unsolvable mystery. A Frantic Moment Alexis Johnson and Diamond Cooley met on Tinder shortly after high school and became parents to Jasper in 2019, Stohne in 2021 and Onyxx in 2023. The Cooleys got married after Jasper was born. They separated a few years later, while Alexis was pregnant with Onyxx. The breakup wasn’t painless, but they worked through it. These days, they still speak in the shorthand of old friends and try to comfort each other; when Alexis starts to cry while talking about Onyxx, Diamond cracks a joke at his own expense, and she laughs. They agreed to share custody of the boys. Diamond moved in with his mother in Idaho Falls, while Alexis stayed at her parents’ house in Shelley, about 20 minutes away. Alexis and Diamond separated before Onyxx was born, but they agreed to co-parent and remained friendly, including after the loss of Onyxx. “I think that the most support that we have gotten for Onyxx has been between us,” Alexis said. “I knew that I wasn’t going through this alone, and I hope that he felt the same way.” Based on prenatal ultrasounds, they weren’t surprised when Onyxx was born with a cleft palate and lip. It required road trips to see specialists in Salt Lake City and made feeding a little more complicated. Onyxx couldn’t breastfeed. He needed a special bottle. After a couple of scares — Onyxx choked on spit-up when she put him on his back — Alexis talked with his doctors and learned she should keep his upper body elevated for 30 minutes after he ate, to leave time for him to digest the formula. But otherwise, Alexis couldn’t believe what an easy baby he was. He almost never cried — just smiled, cooed and kept his eyes on his big brothers. Alexis loved to watch Jasper or Stohne get up close to Onyxx, hold his hands and play with him; he would burst into kicks and smiles. Diamond remembers that as soon as Onyxx figured out how to smile, he never seemed to stop. Onyxx Cooley (First image: Courtesy of Alexis Cooley. Second image: Courtesy of Diamond Cooley.) What happened during the baby’s final hours is captured in police reports, 911 dispatch logs, a 911 call recording, Onyxx’s hospital records and Alexis’ recollections. The night of Jan. 31, after putting their two older sons to bed, Alexis sat in the living room feeding Onyxx until he dozed off around 11 p.m. She carried him downstairs to their basement bedroom, where he lay propped on her legs facing her, while she sat playing Fortnite in bed. As she lay down to sleep, Alexis propped a swaddled Onyxx in the crook of her outstretched arm. She woke expecting to feed him again around 3 a.m., but for the first time in his 10 weeks of life, Onyxx wasn’t ready for another meal. He was sound asleep, so she moved him off her arm and onto his back. She scooted over to the other side of the king-size bed, checked her phone, took a puff from an e-cigarette on her nightstand, then went back to sleep. When she woke again around 6 a.m., Alexis rolled over to find Onyxx in the same position, swaddled. He was cold. A half-inch of yellowish-white foam came from his mouth. It looked like saliva with a little bit of blood in it. Alexis tried to clear his airway — first with her finger, then by turning him over and doing the Heimlich maneuver she learned in a health care course. She ran upstairs with Onyxx, screaming for help. She called 911 and got some words out before handing the phone to her mother. Then Alexis called Diamond, who jumped in his truck and got to the house as the ambulance doors closed. With Alexis and Diamond following behind in the pickup, the ambulance carrying Onyxx arrived at the emergency room of Eastern Idaho Regional Medical Center at 6:43 a.m. An ER doctor looked at the baby’s heart through an ultrasound. There was no life. Onyxx’s parents walked through the ER doors and, minutes later, the doctor delivered the news. In an hour, at most, the doctor gave Onyxx a best-guess diagnosis of sudden infant death syndrome, or SIDS, according to the medical chart. This was not supposed to be the final word, however. Idaho law says when a child dies “without a known medical disease” like Onyxx did, a coroner must investigate. As the ER doctor was finishing with Onyxx, a nurse made a phone call to the coroner for Bonneville County, where the hospital was located, to let him know a baby had died in his jurisdiction. The Part-Timer Rick Taylor, Bonneville County coroner, in the morgue in Idaho Falls Rick Taylor considers himself a part-time coroner, even if his annual pay is $95,928 and the county payroll lists the position as full-time. He said he spends at least five hours a day in the office and is on call the remainder of the day. If the county told him to work full time right now, “I’d send in my resignation,” he said. His hands are full attending to the health needs of his family, he said. He also travels often. At age 68, his voice is reedy and soft. He has a full head of gray hair and wears a trim mustache to match. In a recent interview at work, he wore knee-length jean shorts and a short-sleeve plaid shirt. In contrast to the casual look, he rarely smiled and came off as reserved, even a bit stern at times. Taylor works out of a squat, grayish building on a residential street near the railroad tracks. It doubles as the county morgue, with a walk-in cooler to store bodies. Taylor says visitors expect it to smell like death; it smelled like mint when a reporter stopped by in July. During this visit, Taylor logged on to the state’s online portal for managing death certificates and worked through his list for the day, clicking electronic approvals for cremation and other paperwork. He took a phone query about a missing parolee who might have died. On his desk sat a file on the death of a man, reported missing in 1986, whose DNA was recently matched to a tibia bone found in 2009. Taylor grew up in East Idaho, joined a local fire department in the early 1980s, got married and raised six children. Coroner seemed like a logical career progression; most Idaho coroners are first responders or morticians, jobs that already require them to evaluate people’s injuries and talk with grief-stricken families. A Republican, Taylor was appointed to the office in 2012 after about 11 years as the coroner’s chief deputy. The job back then was part time and paid $18,000 a year. He said that when he recently persuaded commissioners to make it a full-time job at higher pay, he was merely setting up the office for future coroners to make a living wage. Although some states hire licensed forensic pathologists as medical examiners, many others, like Idaho, have elected coroners who often have no medical degree. But even states that elect coroners have some oversight. Some have professional boards that write regulations. Some require autopsies for all unexpected or unexplained child deaths. Some offer funding to ensure a baseline level of service. Some offer state money to transport bodies, a big expense in the vast expanses of the West. Not Idaho. One of its few requirements is to attend “coroner’s school” within a year of taking office and 24 hours of training every two years after that. There’s no penalty for failure, unlike in neighboring states, where consequences can be severe: suspended pay, forfeiture of the office or a misdemeanor charge. One in 4 Idaho coroners have repeatedly fallen short, according to records provided by the state coroners association. Those same records indicate Taylor hasn’t come close to hitting 24 hours since 2017-18; he didn’t respond to emails asking about the apparent shortfalls. Taylor’s office doubles as the county morgue. The property is flanked by rental houses. Next to the building is a trailer-sized garage where Taylor parks the Chevrolet Suburban that he and his employees use to transport bodies. The lack of regulation may help explain why the state has the nation’s lowest autopsy rate in child deaths attributed to unnatural or unknown causes — a category that includes suicides, homicides, crashes, drownings, overdoses and sudden infant deaths. A review by the state’s Office of Performance Evaluations this year found 49% of those deaths were autopsied in Idaho from 2018 through 2022, far below the national average of 79%. A logbook that Taylor provided to ProPublica in response to a records request shows an even lower rate in Bonneville County during those years. He ordered autopsies in 33% of the 39 child deaths whose causes were, based on his notes, unnatural or unknown. The unautopsied deaths included a 17-year-old girl found hanged at a juvenile detention center, which Taylor ruled a suicide. Taylor said he needed to look at his case file to comment on why he didn’t order an autopsy, when national guidelines say all deaths in detention should prompt one. He didn’t respond to subsequent requests to discuss it. Taylor said he always orders autopsies in a sudden infant death without an obvious explanation, even when a parent is suspected of rolling over on the baby. But he makes exceptions, like if police don’t suspect a crime and the parents object to having an autopsy. Or if a doctor has already offered up a cause of death. “Then we go with that,” he said. “There’s no reason to second-guess the doctors. I’m not a doctor.” Guidelines from the National Association of Medical Examiners say an autopsy from a forensic pathologist is needed. The guidelines say nothing about an ER doctor’s examination sufficing. Barrett Hillier, a former police detective who ran for coroner against Taylor in 2022, said police and coroners have different jobs to do when a baby dies — and one of those jobs isn’t getting done in Bonneville County. “There’s nobody really out there investigating these deaths,” said Hillier, noting that police investigate “the criminal side” but that not all deaths are crimes, and the police aren’t always right. “There should be checks and balances.” Taylor addressed such criticism in a 2022 campaign Facebook post praising the presence of law enforcement at death scenes, “doing what they do best.” “The Coroner on scene is doing what is required and what we do best!” Taylor’s post said. “There is no need for duplication!” Tensions With the Coroner In the weeks leading up to baby Onyxx’s death, Bonneville County had come very close to losing its access to autopsies altogether. Ada County, home to the state’s largest urban center, does autopsies under contract with Taylor and more than 30 other coroners around the state. With Taylor, this relationship was badly fraying. Rich Riffle, the elected Ada County coroner and a fellow Republican, wrote a letter in January to the Bonneville County board of commissioners saying there were “multiple issues” with Taylor’s death investigations. Taylor’s office “consistently furnishes inadequate information” ahead of autopsies, he wrote. Riffle said Taylor’s office sent over “mere summaries of the case, sometimes just a few sentences on homicide cases.” For example, the only photographs Ada County was getting from death scenes were those taken by law enforcement officers. Their job is to document a possible crime scene, not to capture the details that a trained coroner would, like how a person’s skin color changes after they die. Riffle’s pathologists needed more than Bonneville County was giving them to decipher deaths at an autopsy table 300 miles from the death scene. Riffle said his staff made numerous attempts to tell Taylor what they needed and why, but Taylor’s response was “backlash and, at best, temporary cooperation.” All of Riffle’s senior staff agreed “that this relationship, under the current circumstances, must end,” he wrote. Taylor, in an interview, said his reports were brief because he didn’t see the point of duplicating the work of police. Riffle has been “real hard to work with since he got elected,” Taylor said. In the end, Riffle relented — at the behest of police. Local law enforcement officers, worried about the fate of their criminal cases if they had to go without autopsies, reached out to Riffle’s office: Would Ada County keep serving Bonneville County if officers volunteered to get coroner-style training? Ada County contacted Taylor to see if he was interested, and he told them he was. Ada County sent three people to eastern Idaho to teach some basics. The police were enthusiastic about the training. Taylor attended. Riffle was satisfied and sent another letter to Bonneville’s commissioners, this time saying his office would continue to do their county’s autopsies. “However,” Riffle wrote, “I must make this clear, we will not tolerate any reports that fall short of the basic level industry standards.” Sending the pathologists complete reports in preparation for autopsies was Taylor’s job, Riffle wrote, not law enforcement’s. Riffle’s letter to Bonneville County happened to be dated Feb. 1, the same day Onyxx died. Taylor took the nurse’s call about Onyxx early that morning. Taylor told the nurse he “would probably rule the cause of death as SIDS and would not be responding to the hospital,” according to a detective’s report. Nor did Taylor plan to order an autopsy. But detectives from neighboring Bingham County, who’d just arrived at the hospital to question Alexis and Diamond, were not ready to let Taylor’s decision go unchallenged. They decided to look for a second opinion. A Matter of Public Health Jimmy Roberts, Bingham County coroner, in his office in Blackfoot, Idaho An hour after Onyxx was pronounced dead, a detective from Bingham County called Jimmy Roberts, according to Roberts’ phone records. Roberts remembers the detective telling him what Taylor planned to do — or not do — including the decision to forgo an autopsy. Could Roberts try to change Taylor’s mind? Roberts is the elected coroner of Bingham County, where Alexis lived and where medics, police and detectives had responded to her call about Onyxx’s lifeless body. But the baby was pronounced dead in a hospital 10 miles away, in Taylor’s county. Had Alexis opted not to send Onyxx to the hospital in a desperate grasp at the impossible, had he been pronounced dead at the scene, it would have been Roberts’ case without question. Roberts, 57, has a different way of approaching his work than Taylor. Death investigations in Roberts’ office are consistent with national guidelines, a review of his reports shows. He sends most child and infant deaths to Ada County for autopsy. Personal tragedy planted the seed in Roberts’ mind to become a coroner. He spent most of his adult life as a military corpsman, civilian emergency medic and firefighter. But in 2004, his father died of a gunshot wound to the chest in Boise County. Authorities at the time said they found the death suspicious but hadn’t ruled out the possibility of suicide. The coroner’s written report, obtained by ProPublica through a records request, noted clues from the scene that contradicted statements of the man later convicted of voluntary manslaughter in the death. But Roberts didn’t like what he saw of the process. He was frustrated that Idaho entrusted death investigations to laypeople, elected coroners who can take office without any medical or legal training. Roberts eventually took a job as a deputy coroner and later ran successfully for coroner of Bingham County in 2022, vowing to give every death its due. He worked 50 hours a week, using retirement pay from his past careers to supplement the coroner’s part-time salary, which was about $22,000 when he took office. He reopened old cases when families asked him to review a prior coroner’s work and he found it lacking. Roberts has asked county commissioners for more money so that, when faced with two suspicious deaths, he wouldn’t have to decide which was more worthy of a full investigation. Roberts asks Bingham County commissioners for a budget increase during a July meeting in Blackfoot, Idaho. After questioning his office’s expenses and criticizing the need for more investment, the board ultimately granted Roberts a portion of the new funding he sought. His tenure has not been without controversy or criticism. Roberts was charged in 2022 with sexual battery, accused of grabbing a woman’s breasts. The allegation prompted county officials to call for his resignation and his deputy coroners to quit. A jury found him not guilty in 2023. Roberts argues that getting sound answers in unexplained deaths is a matter of public health and safety. It’s a case he makes to anyone who will listen, and it’s why he joined the state’s child fatality review team, a volunteer group that meets year-round, under a governor’s executive order, to spot patterns that could save lives. Taylor, in Bonneville County, has failed to provide any records to that committee for at least eight years. He’s been too busy, he told ProPublica. “It’s time, just, you know, to sit down and do it,” he said. (It took three months, and intervention from the county’s attorney, for Taylor to fulfill ProPublica’s request for his records of child death investigations.) Roberts said the coroner’s job is to piece together a person’s final days to make sense of what happened. It honors a person’s life and ensures their death isn’t a black box from which no knowledge can ever be gained. If the death of an infant or anyone else is written off as a senseless tragedy, Roberts said, “who the hell are you helping?” The moment that Roberts understood what the Bingham County detective was telling him about Taylor and the death of Onyxx Cooley, he felt helpless. “Somebody rolls into the emergency room with an infant, and they say, ‘Well, everything looked fine.’ The ER doc looks at him and says, ‘Oh, yeah, I can’t determine why they died.’ And the coroner decides not to send them to autopsy but sign it out as SIDS?” Roberts said in an interview. “That’s 100% bullshit.” He knew that no one can call something SIDS without a full autopsy, toxicology testing, scene investigation, interviews with caregivers and reenactments with the people who saw the infant right before and after the death. “You cannot make that diagnosis without all of that information,” Roberts said. Roberts wanted to help in the Onyxx Cooley case. He simply didn’t have the authority to override Taylor. “Paperwork Autopsy” Alexis with her and Diamond’s two other children, 5-year-old Jasper, left, and 3-year-old Stohne At the hospital, Alexis and Diamond Cooley were talking with police. Family members had started to arrive, and everyone sat in a hospital room as the young parents reckoned with reality. Diamond remembers police asking a series of questions about their marriage and separation, which sounded to him like a suggestion that Alexis harmed Onyxx. Alexis couldn’t shake the feeling that everyone was watching her, looking at her, eyeing her as the only person in the room when Onyxx died of some unknown cause. The Cooleys remember nurses trying to help them cope with the grief, letting them sit with Onyxx until about 6 p.m., when it was time to take his body away. The hospital gave the family Onyxx’s handprints and footprints and plaster casts of his hands and feet. By the time they walked out of the hospital, it was nightfall. An officer that day had told Alexis that the coroner might want to do a reenactment of Onyxx’s sleeping environment, using a doll. She said she’d do it. But the Cooleys learned from a funeral-home employee later that week that Taylor decided he didn’t need to do that part of the investigation. He had closed the case. He’d never contacted them. The question of why Onyxx died lingered. “It didn’t make any sense to me, right?” Diamond says. “He was a super healthy baby. And I was like, I don’t understand how it could be SIDS. Like, what else could it have been?” The reenactment of the baby’s sleeping position that Taylor opted to skip might have offered clues. It is considered so crucial that Idaho’s coroners were offered specialized training in it in 2019. The class came with a doll for coroners to use in their counties. Taylor did not attend. Here is what we know. Safe sleep guidelines say babies should be placed on their backs in a crib or bassinet, with a firm mattress and no blankets, loose sheets, pillows or stuffed animals. Onyxx was in an adult bed when he was found unresponsive. But Alexis said he was several feet away from her with no suffocation hazards nearby. Onyxx had suffered from dangerous reflux when sleeping on his back, but typically it happened immediately after a feeding; four hours had passed between when he last ate and when he was laid on his back. The opportunity to understand what went wrong vanished when Onyxx was cremated. In a one-page form labeled “Death Investigation,” provided in response to a record request, Taylor noted Onyxx’s cleft palate, recorded that Onyxx was last seen alive at 3 a.m. in bed with his mom and estimated the time of death as 4 to 4:30 a.m. Taylor’s handwritten narrative consisted of this: “found in bed w/mom — ‘foam’ in airway — unresponsive. Fed @ 23:30 — arrived ER in assystole — no response — EMS or ER.” “We did basically what I call a ‘paperwork autopsy,’” Taylor said in a recent interview. Asked about the fact that national guidelines require true, physical autopsies and other investigative steps when an infant dies suddenly, Taylor said Idaho law doesn’t require those guidelines to be followed. He didn’t see a need to go out to the hospital, visit the house where Onyxx died or speak with Onyxx’s parents. He’d talked with the doctor and with law enforcement officers who were at the scene. “I don’t try to not figure things out. I don’t try to do the easy thing,” he said. “I haven’t been in this damn work for 23 years by just doing what is the easiest and the fastest way out.” Less than a month after Onyxx died, 275 miles away at the state Capitol in Boise, a legislative committee heard about the structural problems plaguing Idaho’s coroner system. An evaluator from the Office of Performance Evaluations, a nonpartisan watchdog agency, told the panel Idaho’s coroner system has fallen behind the U.S. for years and that the gap is widening as the state grows and forensic science matures. The evaluator’s report suggested legislators consider policies used in other states, like requirements and state funding for autopsies in child deaths. Two efforts to require autopsies for SIDS deaths in Idaho failed 20 years ago, according to legislative records. Alexis keeps Onyxx’s ashes in a butterfly-shaped necklace and has a tattoo of his handprint. After Onyxx died in February, Alexis didn’t hear from the county coroner responsible for investigating the baby’s cause of death. The coroner reached out to her for the first time in October, prompted by a reporter’s inquiry into his handling of the case. “It’s hard to just feel like my son wasn’t given the proper attention that he should have gotten,” she told ProPublica. Alexis no longer blames herself for her baby’s death. Her therapist encourages her to avoid the “what if” questions because “it will just eat at me,” and no answer is capable of bringing Onyxx back. Still, she said, had the facts of Onyxx’s death been properly examined, it might have helped spare another set of parents from what she and Diamond are going through. It also might have answered one of the primary questions that drive the need for an autopsy: Are the other children at risk of dying from whatever killed the baby? These days, after she puts the boys to bed, an alarm will go off six or seven times a night in Alexis’ traumatized brain: time to confirm her surviving children are still alive. Diamond Cooley does it, too, on nights the boys are with him. He stands there and watches 5-year-old Jasper and 3-year-old Stohne until their chests rise and fall. Stohne is a light breather, which means Diamond has a moment of panic until he can get a hand on the toddler’s chest. While he’s there, sometimes Diamond adds another blanket. He can’t stand the feeling of cold skin anymore. Diamond checks in on Jasper and Stohne after putting them to bed.

— Despite Trump’s Win, School Vouchers Were Again Rejected by Majorities of Voters

 

at 11/9/24 3:00am

by Eli Hager and Jeremy Schwartz ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up for Dispatches, a newsletter that spotlights wrongdoing around the country, to receive our stories in your inbox every week. In 2018, Arizona voters overwhelmingly rejected school vouchers. On the ballot that year was a measure that would have allowed all parents — even the wealthiest ones — to receive taxpayer money to send their kids to private, typically religious schools. Arizonans voted no, and it wasn’t close. Even in a right-leaning state, with powerful Republican leaders supporting the initiative, the vote against it was 65% to 35%. Coming into this week’s election, Donald Trump and Republicans had hoped to reverse that sort of popular opposition to “school choice” with new voucher ballot measures in several states. But despite Trump’s big win in the presidential race, vouchers were again soundly rejected by significant majorities of Americans. In Kentucky, a ballot initiative that would have allowed public money to go toward private schooling was defeated roughly 65% to 35% — the same margin as in Arizona in 2018 and the inverse of the margin by which Trump won Kentucky. In Nebraska, nearly all 93 counties voted to repeal an existing voucher program; even its reddest county, where 95% of voters supported Trump, said no to vouchers. And in Colorado, voters defeated an effort to add a “right to school choice” to the state constitution, language that might have allowed parents to send their kids to private schools on the public dime. Expansions of school vouchers, despite backing from wealthy conservatives, have never won when put to voters. Instead, they lose by margins not often seen in such a polarized country. Candidates of both parties would be wise “to make strong public education a big part of their political platforms, because vouchers just aren’t popular,” said Tim Royers, president of the Nebraska State Education Association, a teachers union. Royers pointed to an emerging coalition in his state and others, including both progressive Democrats and rural Republicans, that opposes these sweeping “school choice” efforts. (Small-town Trump voters oppose such measures because their local public school is often an important community institution, and also because there aren’t that many or any private schools around.) Yet voucher efforts have been more successful when they aren’t put to a public vote. In recent years, nearly a dozen states have enacted or expanded major voucher or “education savings account” programs, which provide taxpayer money even to affluent families who were already able to afford private school. That includes Arizona, where in 2022 the conservative Goldwater Institute teamed up with Republican Gov. Doug Ducey and the GOP majority in the Legislature to enact the very same “universal” education savings account initiative that had been so soundly repudiated by voters just a few years before. Another way that Republican governors and interest groups have circumvented the popular will on this issue is by identifying anti-voucher members of their own party and supporting pro-voucher candidates who challenge those members in primary elections. This way, they can build legislative majorities to enact voucher laws no matter what conservative voters want. In Iowa, several Republicans were standing in the way of a major new voucher program as of 2022. Gov. Kim Reynolds helped push them out of office — despite their being incumbents in her own party — for the purposes of securing a majority to pass the measure. A similar dynamic has developed in Tennessee and in a dramatic way in Texas, the ultimate prize for voucher advocates. There, pro-voucher candidates for the state Legislature won enough seats this Tuesday to pass a voucher program during the legislative session that starts in January, Republican Gov. Greg Abbott has said. The day after the election, Abbott, who has made vouchers his top legislative priority, framed the result as a resounding signal that Texans have now shown a “tidal wave of support” for pro-voucher lawmakers. But in reality, the issue was conspicuously missing from the campaigns of many of the new Republicans whom he helped win, amid polling numbers that showed Texans hold complicated views on school choice. (A University of Houston poll taken this summer found that two-thirds of Texans supported voucher legislation, but that an equal number also believe that vouchers funnel money away from “already struggling public schools.”) In the half dozen competitive Texas legislative races targeted in this election by Abbott and the pro-voucher American Federation for Children, backed by former Education Secretary Betsy DeVos, Republican candidates did not make vouchers a central plank of their platforms. Most left the issue off of their campaign websites, instead listing stances like “Standing with Public Schools” and “Increased Funding for Local Schools.” Corpus Christi-area Republican Denise Villalobos pledged on her website that if elected she would “​​fight for increased funding for our teachers and local schools”; she did not emphasize her pro-voucher views. At least one ad paid for by the American Federation for Children’s affiliated PAC attacked her opponent, Democrat Solomon Ortiz Jr., not for his opposition to vouchers but for what it claimed were his “progressive open-border policies that flood our communities with violent crime and fentanyl.” (Villalobos defeated Ortiz by 10 points.) Matthew Wilson, a professor of political science at Southern Methodist University, said that this strategy reflects a belief among voucher advocates that compared to the border and culture wars, vouchers are not in fact a “slam-dunk winning issue.” In the wake of Tuesday’s results in the presidential election, NBC News chief political analyst Chuck Todd said that Democrats had overlooked school choice as a policy that might be popular among working-class people, including Latinos, in places like Texas. But the concrete results of ballot initiatives around the nation show that it is in fact Trump, DeVos and other voucher proponents who are out of step with the American people on this particular issue. They continue to advocate for vouchers, though, for multiple reasons: a sense that public schools are places where children develop liberal values, an ideological belief that the free market and private institutions can do things better and more efficiently than public ones, and a long-term goal of more religious education in this country. And they know that popular sentiment can be and has been overridden by the efforts of powerful governors and moneyed interest groups, said Josh Cowen, a senior fellow at the Education Law Center who recently published a history of billionaire-led voucher efforts nationwide. The Supreme Court could also aid the voucher movement in coming years, he said. “They’re not going to stop,” Cowen said, “just because voters have rejected this.” Help ProPublica Report on Education

— Courts Appoint Special Counsel to Oversee Reform of New York’s Troubled Guardianship System

 

at 11/8/24 3:00am

by Jake Pearson ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published. New York’s top judicial leaders are moving to reform the state’s troubled guardianship system after a ProPublica investigation found lax monitoring allowed court appointees to abuse and neglect the elderly and infirm New Yorkers they were supposed to protect. The renewed attention will come from two newly created positions in the state court system: a special counsel for guardianship matters and elder justice, who, according to a spokesperson, will focus on “reform efforts of the statewide adult guardianship system”; and a so-called statewide coordinating judge. More than 28,000 New Yorkers are under the care of court-appointed guardians, charged with managing the affairs of people deemed incapable of caring for themselves. Under state law, guardians can control their wards’ finances and health care and are paid for their services from their charges’ funds. But as ProPublica reported this year, court oversight of these officials is threadbare. In New York City, for example, there are just over a dozen judges and 157 court examiners responsible for overseeing the guardians and ensuring the welfare of 17,411 people. Advocates say those most vulnerable to abuse and neglect are the so-called unbefriended — the New Yorkers who have no friends or family able to look after them. An internal court assessment obtained by ProPublica estimated that they account for 20% of all wards statewide. No single government agency provides for their care. The courts have long relied on a small network of nonprofits and professional guardians for these low- and no-fee cases. The shallow pool of providers, coupled with too few court examiners to oversee guardians’ work, has led to neglect, exploitation and abuse. A woman featured in ProPublica’s reporting lived for years in a home that had no heat and was infested with bedbugs and rats — conditions her legally appointed guardian did not rectify and her examiner did not question. Another guardian spent more than half of her ward’s life savings for care provided by her own private business — a flagrant conflict of interest that a judge permitted for years. After ProPublica sent questions about that guardian’s conduct to the court system, a court spokesperson said an inspector general had opened an investigation into the allegations. The spokesperson didn’t provide any further details. The court system’s actions come as advocates press local and state officials to buoy the guardianship system that they say cannot keep pace with the demand for services, especially among the elderly, which is the fastest-growing age group in the state. Advocates told lawmakers at a New York City Council hearing on elder fraud last week that the current arrangement is unsustainable. “The chronic lack of available guardians has created an untenable situation,” testified Jean Callahan, who chairs a group of judges, lawyers and others involved in the guardianship system called the Working Interdisciplinary Networks of Guardianship Stakeholders, or WINGS. “We’ve created an unfunded mandate in New York.” Callahan was among a half dozen professionals who urged the City Council to pass a resolution calling on state leaders to create a publicly funded system. The bill’s author, City Councilmember Crystal Hudson, drafted the measure in response to ProPublica’s reporting. “Now is the time for Gov. [Kathy] Hochul to take action, to strengthen our guardianship system by instituting a public fund to compensate guardians in order to safeguard vulnerable New Yorkers in need of protective arrangements,” Hudson said during the hearing. Her bill endorses a $15 million annual appropriation that would support a network of nonprofits that cater to the poorest of the unbefriended. Guardianship Access New York, a coalition of nonprofits that drafted the proposal, sent a letter last week to Hochul and other top state officials urging them to fund the initiative, which is supported by roughly two dozen community groups, including AARP New York. Another plan, suggested by an advisory committee to the state court system, goes much further. It proposes creating an independent statewide agency to serve as a guardian for those who have nobody else, an endeavor that the group estimates would cost $72 million annually to staff. State Sen. Cordell Cleare, who chairs her chamber’s Committee on Aging, said in an interview that she supports overhauling the guardianship system, and she has endorsed the more modest proposal to help nonprofits care for the unbefriended statewide. “From everything I’ve looked at and weighed, I think it’s the right thing to do,” she said. But it’s not clear whether Hochul and the state’s legislatives leaders agree. While they’ve acknowledged the need to care for the state’s growing aging population, none have specifically commented on the problems in guardianship highlighted by ProPublica or advocates’ proposed fixes. Any reform efforts would go through the Senate and Assembly judiciary committees, but neither chair responded to requests for comment for this story. In a statement, a spokesperson for the governor said Hochul will review budget proposals “in January, as required by law.” Do You Have a Tip for ProPublica? Help Us Do Journalism.

— Some Issues and Topics Our Reporters Will Be Following in a Second Trump Presidency — and How to Get in Touch

 

at 11/7/24 1:00pm

by ProPublica Sixteen years ago, we started ProPublica to do hard-hitting, rigorous journalism that exposes wrongdoing and injustice. In that time, our investigative reporters have covered three presidential administrations, from the Obama administration’s failed housing policies to the Trump administration’s immigration strategies that separated parents from their children at the border to the Biden administration’s failure to uphold U.S. law when it came to arming the Israelis. Now that Donald Trump is the president-elect for the second time, we will once again turn our focus to the areas most in need of scrutiny at this moment in history. As our editor-in-chief wrote yesterday, that’s what our more than 150 working journalists do. We will watch closely as the Trump/Vance administration takes shape and makes plans. To find stories, we will, as always, rely on insights from people closest to the issues. Concerned public servants are some of our most important sources. This has never been more true. If you are a federal employee, is there unfinished business — a sensitive project, a little-known but key policy, an important lawsuit — you worry will be quashed or left to molder? Are there records, research or databases you feel strongly should be preserved? We appreciate the difficult situations people weigh as they decide whether to reach out to us, and we take source privacy very seriously. Read more about ProPublica’s approach to investigative journalism in our ethics code. If you have tips, documents, data or stories the public should know about, you can contact all of our journalists at propublica.org/tips. Here’s information on how to do so securely. And if you don’t have a specific tip or story in mind, we could still use your help. Sign up to be a member of our federal worker source network to stay in touch. We will tell you more about our whole team and about our coverage plans in the months to come. We work across a number of beats and disciplines, from tax policy to education to health care. We have data reporters who can handle complicated datasets and public records specialists eager to strategize. Here are just a few examples of the topics we’re thinking about, plus contact information for some reporters on the beat: Rule of Law Andy Kroll I cover justice and the rule of law, with a focus on the Justice Department, the U.S. Attorney’s Office for the District of Columbia and the federal courts. Since joining ProPublica in 2022, I have reported on dark money, Christian nationalism, conservative plans to dismantle the civil service and other stories about American democracy. Send me tips on the transition, pardons, appointments, political interference, conflicts of interest and abuses of power inside the DOJ or other law enforcement agencies. Email: andy.kroll@propublica.org Phone/Signal: 202-215-6203 Trump’s Business Interests Robert Faturechi I have been reporting on Trump Media, the parent company of Truth Social. Our stories have focused on the conflicts of interest Trump’s stake in the company present and allegations of mismanagement and cronyism within the company. (The company has denied the allegations.) If you know anything about Trump Media or Trump’s other businesses, please get in touch. I’m also reporting on the Trump administration’s trade policies, including tariffs. Contact me if you work for Trump Media, the Commerce Department or the Office of the U.S. Trade Representative, or know anything about lobbying efforts to win tariff exemptions. Email: robert.faturechi@propublica.org Signal/WhatsApp: 213-271-7217 Mailing address: Robert Faturechi c/o ProPublica 155 Avenue of the Americas 13th Floor New York, NY 10013 Immigration Melissa Sanchez I report on immigration and labor in the Midwest. Trump ran on a campaign that promised the largest deportation operations in our nation’s history. I’d like to talk to people with inside information about how that might happen, where and the backroom conversations about what industries, employers or regions of the country will be left out. I am also interested in how some of these issues will play out in local schools. I have lived and reported in Latin America and speak Spanish fluently. Email: melissa.sanchez@propublica.org Phone/Signal/WhatsApp: 872-444-0011 Mailing address: Melissa Sanchez c/o ProPublica 211 W. Wacker Drive Chicago, IL 60606 Mica Rosenberg I cover immigration nationally and I am interested in writing about how changes in the U.S. immigration system directly impact people’s lives, as well as potential conflicts of interests that could arise between business and government. I have covered this beat since 2015, was a foreign correspondent in Latin America and am fluent in Spanish. Email: mica.rosenberg@propublica.org Phone: 332-213-1365 LinkedIn: linkedin.com/in/micarosenberg Trump and Billionaires Justin Elliott I’m interested in the relationships between Trump and the country’s richest people and their companies. That includes major donors to his campaign — not only prominent figures like Elon Musk but also lesser-known billionaires such as the hedge fund manager Paul Singer and heir Timothy Mellon. My interest also extends to billionaires who are sure to have business before the government under Trump but who have previously supported Democrats, such as Jeff Bezos. Do you work for a billionaire who might have business with Trump? Do you work for one of their companies? Do you have knowledge of these relationships more generally? Please get in touch. For more on how I handle tips and story ideas, read this piece I wrote on the important role of reader tips in our coverage of the Supreme Court. Email: justin@propublica.org Signal/WhatsApp: 774-826-6240 Foreign Affairs/Policy Brett Murphy The Trump administration is set to inherit twin crises in the Middle East and Ukraine, as well as a global struggle for the economic and technological edge over our rivals. It’s still unclear how much he will want to intervene or isolate the U.S. while addressing crucial questions about our future on the global stage. I’m going to be covering the federal agencies at the center of the administration’s foreign affairs agenda and the corporations that help carry it out. Reach out if you work at the State Department, the Pentagon or anywhere else with tips about how the U.S. is influencing other countries’ governments — and how they might be influencing ours. Email: brett.murphy@propublica.org Signal: 508-523-5195 Joshua Kaplan I will be covering diplomacy, the Department of Defense and how the U.S. government is using its power abroad. That could include stories ranging from an overlooked aspect of a major conflict to an unusual phone call with a foreign leader. I am particularly interested in the ways that foreign policy intersects with business or ideological interests. And I’m always drawn to stories about conflicts of interest, in any agency and any form. In 2023, I co-reported a series of stories that revealed how a set of politically influential billionaires provided decades of undisclosed gifts to Supreme Court justices. Those articles helped spur the court to adopt its first-ever code of conduct and received a Pulitzer Prize. Email: joshua.kaplan@propublica.org Signal: 734-834-9383 Environmental Regulations Sharon Lerner I cover health and the environment and the agencies that govern them, including the Environmental Protection Agency. Even under Democratic administrations, the EPA sometimes bends to pressure from the powerful chemical, pesticide and energy companies it regulates. But during Trump’s first presidency, many of the political appointees running the agency had spent their careers up to that point challenging it. Others were simply unqualified and conflicted, as I reported then. This time around, Trump has already told oil executives he would roll back environmental rules and policies, including climate protections instituted by the Biden administration. I welcome tips from scientists inside or outside the agency, people who have direct knowledge about Trump political appointees or nominees, and anyone aware of schemes to loosen protections on health and the environment. Email: sharon.lerner@propublica.org Signal: 718-877-5236 Mark Olalde I’m interested in Trump’s and his allies’ promises to dismantle the federal bureaucracy and laws that protect the environment. I’m looking to speak with people with inside knowledge of decision-making in the federal government, especially the Department of the Interior and its agencies. I’m also interested in information from other environmentally focused divisions of the government, from the Department of Energy to the U.S. Forest Service. I have investigated environmental issues ranging from the failure to properly clean up oil and gas wells and uranium mills to the mismanagement of the Colorado River and corporate bankruptcies. Based in the West, I typically report in front-line communities, including tribal nations. Email: mark.olalde@propublica.org Religious and Conservative Policy Molly Redden I’m reporting on how the Trump/Vance administration will carry out its cultural agenda. I’m interested in hearing from federal workers seeing rightward shifts in policy on civil rights, religion, free expression, LGBTQ+ rights and reproductive health, and people with insight into how ideological groups and donors who helped reelect Trump are trying to influence White House policymaking. Email: molly.redden@propublica.org Signal: 202-886-9499 Technology Renee Dudley I report on technology and cybersecurity. I enjoy taking on topics that have been long ignored because they are not easily understood. I spend dozens of hours speaking with sources to unpack complex technical subjects, from esoteric cybersecurity tools to arcane government contracts. I aim to reach as deep an understanding as possible of the areas I report on. Although most of the minute details will never be published, I tell my sources that grappling with the material ultimately helps me to write more authoritatively. Contact me to discuss big tech, AI and how the nation is confronting the threat of cyber warfare. Email: renee.dudley@propublica.org Phone/Signal: 929-317-0748 Reproductive Health Kavitha Surana I have been reporting on changes to reproductive health care access since Roe v. Wade was overturned. We have recently been investigating deaths related to state abortion bans, and I am interested in speaking with anyone who might have knowledge about how hospitals or medical staff have responded to the new laws or anyone who has questions about the treatment they or a loved one received. Here’s more information on reaching our whole team. Email: kavitha.surana@propublica.org Phone/Signal: 917-512-0242 Federal Poverty Policy Eli Hager I cover poverty issues, including housing, labor and union protections, child support, child welfare, disability benefits, the Supplemental Nutrition Assistance Program and Medicaid. I plan to watch how the incoming administration handles federal poverty policy, as well as state and local social services agencies and private companies that profit off of the poor. Are you a current or former federal employee with insight into federal poverty programs? Or a congressional staffer who’ll be handling the new president’s budget proposals on these issues? Please reach out. Email: eli.hager@propublica.org Phone/Signal: 301-758-2768 Health Care Policy Annie Waldman I am an investigative health care reporter digging into how money and influence impact the American health care system. I am eager to hear from patients, doctors, federal agency workers and industry insiders about how the new administration is approaching health care. I want to learn about what’s going on inside federal health agencies – for example, the National Institutes of Health, Food and Drug Administration, Department of Health and Human Services and Centers for Disease Control and Prevention – and how their actions impact everyday Americans. Email: annie.waldman@propublica.org Signal: 347-549-0332 This is just a small sample of our reporting team. We will continue to share our areas of interest as the news develops. You can hear more from our journalists about their work by signing up for our Dispatches newsletter. Do You Work for the Federal Government? 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As of 11/22/24 7:05pm. Last new 11/22/24 5:30am.