a Better Bubble™

ProPublica

Indiana Lawmakers Trying to Kill Historic Suit Seeking Gun Industry Accountability

1 year 2 months ago

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.

For nearly a quarter century, some of the world’s largest gunmakers have tried unsuccessfully to beat back a lawsuit brought by the city of Gary, Indiana, accusing them of turning a blind eye to illegal gun sales.

The lawsuit was one of dozens that cities filed against gun manufacturers in the late 1990s, but it is the only one to survive a barrage of legal challenges and legislation aimed at limiting the gun industry’s liability for crimes committed with their products.

Now, facing the prospect of turning over internal documents that gun-control advocates believe could contain damning evidence, the industry has returned to an important ally in a last-ditch effort to kill the suit: the state legislature.

Republicans, who hold supermajorities in both chambers of the Statehouse, are close to passing a bill banning cities from suing firearm manufacturers, dealers or trade groups. Instead, only the state could bring such a lawsuit. Significantly, it’s retroactive to Aug. 27, 1999 — three days before Gary filed its lawsuit.

The bill has strong backing from the firearms industry, which has dramatically ramped up its lobbying efforts at the Statehouse. The lawmaker who introduced the legislation, Rep. Chris Jeter, has made it no secret that the measure is intended to target Gary’s lawsuit.

“Really, this bill is an effort to take one last shot to try to eliminate this last pending case,” said Jeter, a Republican from Fishers, during a hearing on the bill this month. The bill was passed by the House last week and now moves to the Senate.

The effort is prompting anger in Gary, which is about 160 miles from Jeter’s largely suburban district. Mayor Eddie Melton called it “a morally bankrupt bill that protects the rights of manufacturers and disregards the lives of people in communities like Gary.”

“As someone who has experienced gun violence personally, I believe it is critical that we have the legal ability to hold bad actors accountable and to ensure the ongoing safety of our public,” he said in a statement. “Indiana House Bill 1235 removes the rights of Gary and any Indiana community to represent itself in a court of law.”

After years of legal wrangling, the Lake County judge overseeing the suit ruled last fall that the retailers and manufacturers who are defendants in the case must comply with the city’s requests to turn over decades of internal records as part of a legal process known as discovery. City attorneys are seeking thousands of documents detailing manufacturers’ market research, retailers’ firearms purchases and any communications about gun trafficking and straw sales — in which a gun is purchased with the intent to resell it to someone prohibited from buying firearms.

The House bill, set to take effect in July if signed by Gov. Eric Holcomb, appears aimed at preempting the exchange of those records. Writing in a Jan. 17 order, Judge John Sedia said the court will assess the impact of the bill if and when it becomes law but said the case will move forward for now.

Several pro-gun organizations have come out in support of the bill, at least one of which has direct interest in ensuring Gary’s suit does not progress.

The National Shooting Sports Foundation, which conducts political lobbying on behalf of the firearms industry, represents several of the manufacturers named in the suit. “It’s unfair to the industry members to have to defend a case and incur tens of millions of dollars in legal costs and bills for nearly a quarter of a century,” NSSF Senior Vice President Lawrence Keane said.

The NSSF backed the legislature’s prior attempts to kill the lawsuit in 2001 and 2015. With state courts having upended those efforts, and the suit nearing the trial phase, the NSSF has thrown both influence and funding behind this new push to halt Gary’s suit.

After spending no more than a few thousand dollars on lobbying Indiana lawmakers in recent years, its expenditures skyrocketed in the run-up to the bill’s introduction. The group spent about $143,000 on lobbying efforts in 2023, according to the most recent disclosure reports.

That includes about $88,000 through Barnes & Thornburg, one of the most influential lobbying firms at the Statehouse. Jeter was an attorney at the firm until 2015. Barnes & Thornburg did not respond to inquiries from a reporter.

Rep. Chris Jeter, a Republican, introduced legislation that would ban cities from suing firearm manufacturers, dealers or trade groups. Instead, only the state could bring such a lawsuit. (Michelle Pemberton/IndyStar)

Jeter declined to be interviewed for this story. In presenting his bill on the House floor, he adopted many of the same talking points — and at times, even some of the same phrases — as a firearm industry lobbyist who testified on the bill during a committee hearing a week earlier.

In a statement sent through a spokesperson, Jeter did not address the similarity between his comments and those of the industry. He also said he was not aware of anyone from his former firm approaching him to discuss the bill.

“The Gary lawsuit has been ongoing for nearly 25 years, and this is the third time the General Assembly has tried to end this frivolous lawsuit,” he said. “This is the right policy to ensure that we’re protecting lawful Hoosier gun owners’ personal information and aligning Indiana with federal law, which has already affirmed the firearm industry should not be held liable for criminal acts committed with lawfully sold firearms.”

During a hearing on the bill, Jeter tried to undermine the motives behind the suit. “The very fact that the case has been in existence for 24 years, to me, is de facto evidence that it’s frivolous,” he said. “I think the point of the case was to get to the discovery phase, and to ensure that the gun manufacturers had to spend a lot of money, which has largely been successful.”

Democrats in the legislature have questioned Jeter’s concerns that the disclosure of retailer transactions could expose the personal information of lawful gun owners, noting that court orders typically protect such information in civil cases.

Rep. Ragen Hatcher, a Democrat whose father served as Gary’s first Black mayor, disputed Jeter’s characterization of the suit, saying the courts have affirmed its legitimacy. “After three dismissals and three appeals and to continue to be revived by the court, there’s nothing frivolous at all about this case,” she said.

Rep. Ragen Hatcher, a Democrat, defended the lawsuit by Gary, which would be jeopardized if the legislation were adopted. (Michelle Pemberton/IndyStar)

In 1999, Gary had a higher per capita murder rate than any other city in America, with most of the killings involving firearms. Gary was part of a national movement by mayors to take on industry practices and combat illegal firearms sales. Straw sales in Indiana have continued amid the court and legislative battles.

Gary spends millions each year to investigate and prosecute the crimes committed with those guns once they reach the streets, the city claims. Its suit targeted some of the most recognizable names in the industry, including Smith & Wesson, Glock and Beretta, as well as several gun shops in northwest Indiana.

With similar suits being filed around the country, the firearms industry mobilized legislative support at the state and federal levels to pass laws effectively immunizing gun retailers and manufacturers from civil lawsuits. One by one, the lawsuits died.

In Indiana, Republican state lawmakers tried in 2015 to halt the suit, amending an existing immunity statute to make it retroactive to days before Gary filed its complaint. Despite the law, the Indiana Court of Appeals affirmed the city’s ability to pursue its claims, and the suit continued.

Former Gary Mayor Karen Freeman-Wilson, who was in office in 2015, called it “hypocritical” to blame the city for delays in the case, noting that state lawmakers’ efforts have led to a long appeals process as the industry sought to have the case dismissed.

“It is déjà vu all over again,” said Freeman-Wilson, who is now president and CEO of the Chicago Urban League.

“We were very adamant about not just going forward, but really developing the trace data that would support the claims of the lawsuit,” she said. “I believe then and now that it is a public safety issue. I support the Second Amendment and responsible gun ownership, but this is really about dealers that target communities.”

Freeman-Wilson, who served as Indiana’s elected attorney general two decades ago, said lawmakers are “irresponsible in their blind commitment to gun manufacturers and dealers.”

Efforts to put an end to the lawsuit have also extended to the executive branch. The administration of then-Gov. Mike Pence reached out to Freeman-Wilson during her time as mayor in an effort to broker a deal on the lawsuit, she said. At the time, Indiana was competing with other states to attract firearms and ammunition manufacturers that were looking to relocate from blue states, where gun laws were more restrictive. The lawsuit was seen as a barrier.

“They wanted to know what it would take for us to resolve it,” Freeman-Wilson recalled.

She said there were discussions about setting up a fund for victims of gun violence and to help pay for prevention efforts, but those ideas didn’t go anywhere. Instead, she said, gun industry advocates proposed a cartoon character campaign, akin to Smokey Bear, to teach firearm safety to young people.

The city is being represented in the case by the Brady Center, a gun violence prevention group. Representatives from the Washington, D.C.-based nonprofit declined to comment on the new legislation.

The organization’s former president and CEO, Paul Helmke, said he believes the retroactive nature of the legislation can be successfully challenged in court, but at the very least it will set the case back for months or years.

“Now all of a sudden, once discovery has started and they’re getting ready to move to trial, they step in again to try to get extra protections that nobody else, no other business, no other industry in this country has except the gun industry,” said Helmke, a former Republican mayor of Fort Wayne.

He asked: “What are they afraid of?”

Jody Madeira, a law professor at Indiana University who teaches a course on the Second Amendment, said she believes that the legislation violates the city’s right to due process and that lawmakers are exceeding their constitutional powers and unlawfully encroaching on those of the judicial branch.

“This is the Indiana legislature’s latest attempt to jettison the longest-lasting gun lawsuit in U.S. history, thwarting the judicial process to ensure that the firearms industry remains above the law,” she said during a hearing on the bill. “Now old enough to drink, Gary’s lawsuit is the last of its kind. The Indiana Supreme Court has continuously affirmed Gary’s right to bring this lawsuit. It’s not frivolous.”

Supporters of the legislation, however, argue that the same constitutional arguments could be made of previous laws that granted immunity to the firearms industry.

“The state can, for solid policy reasons, foreclose certain causes of action or eliminate liability in certain areas,” said Guy Relford, a gun rights attorney who has helped write some of Indiana’s gun laws. “Its ability to do so has been upheld for generations, notwithstanding those kind of constitutional arguments.”

The legislation now heads to the Senate, where leader Rodric Bray, a Republican, said he expects it to receive a warm reception.

“We’re a strong Second Amendment caucus,” he said. “I suspect there is an appetite for that.”

Brittany Carloni of IndyStar contributed reporting.

by Tony Cook, IndyStar, and Vernal Coleman, ProPublica

Task Force to Consider “Restorative Justice” for Black Families Uprooted by Virginia University’s Expansion

1 year 2 months ago

This article was produced for ProPublica’s Local Reporting Network in partnership with the Virginia Center for Investigative Journalism at WHRO. Sign up for Dispatches to get stories like this one as soon as they are published.

The city of Newport News, Virginia, and Christopher Newport University are creating a joint task force to reexamine the destruction of a Black neighborhood to make way for the school’s campus starting in the 1960s, and recommend possible redress for uprooted families.

The new commission, announced Monday, will scrutinize four decades of the school’s property acquisitions, probing the decisions that led to locating and expanding its campus in the midst of a once-thriving Black community. It will also contact families displaced by Christopher Newport’s steady growth to ask what “restorative justice” would mean for them, and seek state assistance with potential relief for victims, according to a draft action plan.

The formation of the task force follows publication of a series by the Virginia Center for Investigative Journalism at WHRO and ProPublica, which revealed that Christopher Newport and other Virginia state universities grew by decimating thriving Black communities. It also documented race-based decision-making by the City Council by locating the school in a Black neighborhood despite having cheaper options and by seizing properties by eminent domain. CNU’s expansion has whittled down the Shoe Lane neighborhood in Newport News to just five houses.

In their announcement, Newport News Mayor Phillip Jones and Christopher Newport University President Bill Kelly said that the task force’s goals are to develop a “comprehensive understanding” of historical events and to ensure that residents are treated better in the future. “Understanding and acknowledging our past is important to moving forward in a transparent and thoughtful way. Christopher Newport is committed to this work,” Kelly said.

“I was deeply disturbed to know that this happened in our community,” Jones said. “I feel a personal obligation to ensure the city speaks to its role in displacing families and disrupting the sense of community in this historic area.”

The city will align itself with CNU’s plan to boost Black enrollment, according to the draft action plan obtained by VCIJ and ProPublica. Black people make up 44% of Newport News residents but only 8% of Christopher Newport students, down from 17% in 1996, VCIJ and ProPublica reported.

The announcement marks the latest and one of the broadest efforts in the country by a university and its host city to revisit their role in urban renewal and the disruption of once-stable Black communities. City and school reexamination of the historic displacement of marginalized communities has led to greater recognition of the plight of former residents near the University of Colorado Denver and the University of Georgia in Athens. The Denver university has also established a scholarship fund for descendants of families in the displaced Aurorian community.

Besides municipal and university action, the VCIJ-ProPublica series has also stirred a state legislative response. Delegate Delores McQuinn introduced legislation this month to create a commission to study how Virginia public colleges have uprooted Black communities and to explore routes of redress.

The first phase of the Newport News and CNU review will examine property records and assessments from 1958 to 1997 to determine whether property owners were properly paid for their land. The task force will also review city and university records, family archives and church documents to identify displaced families and calculate potential compensation, according to the draft action plan.

In the late 1950s, the Johnson family sold farmland in the Shoe Lane area to Black families for a new subdivision called Johnson Terrace. (Christopher Tyree/VCIJ at WHRO)

Additionally, the working group will survey affected families and consult with historians, lawyers and restorative justice experts. The task force will also suggest changes to the city’s policy for using eminent domain to seize properties.

The city has not released details about how many members would be appointed to the task force, when it would be expected to conclude its work or when findings would be released.

Newport News Vice Mayor Curtis Bethany and CNU Provost Quentin Kidd will co-chair the task force, which is expected to include representatives of the city, the university administration, alumni, students and the community, according to the action plan.

The ProPublica series detailed how universities have taken advantage of federal funding and court rulings to displace tens of thousands of families of color. A 1959 amendment to the Federal Housing Act gave colleges generous subsidies to join with cities to expand into stable neighborhoods, often by using eminent domain. While these efforts were promoted as ways to revitalize deteriorating neighborhoods, they frequently resulted in the destruction of Black middle-class communities. Christopher Newport and other Virginia state universities grew at the expense of Black neighborhoods.

Following the first story in the series, Kelly acknowledged in a message to faculty and staff that the university’s progress “has come at a human cost, and we must continue to learn about and understand our complicated history.”

Kelly also shared the series and a related documentary film with students, faculty and staff, and CNU hosted a panel discussion in November on its history. There, before an overflow crowd, panelists and audience members lashed out at the university. “A school that’s built on land that was taken from Black Americans should be more diverse,” said panelist Audrey Perry Williams, president of the Hampton Roads Association for the Study of African American Life and History.

Another panelist, professor Johnny Finn, chair of the Christopher Newport sociology department, floated the idea of reparations for affected families. “I think we need to think about materially, in addition to the symbolic and the representational, how we deal with this,” Finn said.

In 2019, Christopher Newport implemented the Community Captains program, designed to prepare students from Newport News high schools to enter the university and increase enrollment of Black students. Other Virginia universities have taken steps to rectify the historical displacement of marginalized communities caused by their campus expansions. Beginning in the 1960s, Old Dominion University in Norfolk, Virginia, took over part of the predominantly Black Lambert’s Point neighborhood. ODU has since worked to improve relations with remaining residents by increasing enrollment of students of color and awarding scholarships to residents of Lambert’s Point and nearby areas. The University of Virginia, which also dislodged Black residents, appointed two executive commissions to study its historical support for racist policies and has set a goal to create affordable housing for Charlottesville residents on university-owned properties.

Around 1960, the area bounded by Shoe Lane and three other streets was a growing Black middle-class neighborhood. Residents included teachers, dentists, a high school principal and a NASA engineer, and there were plans to develop farmland for additional housing. But an all-white Newport News City Council blocked those plans by seizing the core of the community in 1961 to establish a college. A former Christopher Newport University president said he was told that the goal was to “erase the Black spot,” in part because the area was near an all-white country club where city and business leaders gathered. The city paid the homeowners 20% less for the properties than the value set by an independent appraiser, council records show.

Even after the 1960s seizure, Black families continued to live around the perimeter of the college. However, Christopher Newport kept expanding. Between 1987 and 2019, it acquired at least 70 properties in the Shoe Lane area, according to an analysis of real estate records. Contending that the university’s expansion hurt their property values, because no one else would want to buy the property, homeowners unsuccessfully sued the university in federal court in 1989.

Paul Trible, CNU’s president from 1996 to 2022, said publicly he wouldn’t need to invoke eminent domain. But his administration used it as leverage to force at least one homeowner to sell in 2005, records show. That same year, the school’s governing board approved its use for three other properties that Christopher Newport said it ultimately acquired without resorting to eminent domain.

Dwayne Johnson, who grew up on Shoe Lane, urged the task force not only to compensate families for underpayments and loss of property value but also to pay them punitive damages. Johnson’s great-grandfather purchased 30 acres of land on Shoe Lane in the early 1900s.

“Do we want reparations? That would be nice,” Johnson said. “But do we think it will be meaningful in that it actually is reflective of our losses? I don’t know.”

by Brandi Kellam, Virginia Center for Investigative Journalism at WHRO

Amid Recall Crisis, Philips Agrees to Stop Selling Sleep Apnea Machines in the United States

1 year 2 months ago

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published.

Reeling from one of the most catastrophic recalls in decades, Philips Respironics said it will stop selling sleep apnea machines and other respiratory devices in the United States under a settlement with the federal government that will all but end the company’s reign as one of the top makers of breathing machines in the country.

The agreement, announced by Philips early Monday, comes more than two years after the company pulled millions of its popular breathing devices off the shelves after admitting that an industrial foam fitted in the machines to reduce noise could break apart and release potentially toxic particles and fumes into the masks worn by patients.

It could be years before Philips can resume sales of the devices, made in two factories outside Pittsburgh. The company said all the conditions of the multiyear consent decree — negotiated in the wake of the recall with the Department of Justice on behalf of the Food and Drug Administration — must be met first.

The move by a company that aggressively promoted its machines in ad campaigns and health conferences — in one case with the help of an Elvis impersonator — follows relentless criticism about the safety of the machines.

A ProPublica and Pittsburgh Post-Gazette investigation found the company held back thousands of complaints about the crumbling foam for more than a decade before warning customers about the dangers. Those using the machines included some of the most fragile people in the country, including infants, the elderly, veterans and patients with chronic conditions.

“It’s about time,” said Richard Callender, a former mayor in Pennsylvania who spent years using one of the recalled machines. “How many people have to suffer and get sick and die?”

Philips said the agreement includes other requirements the company must meet before it can start selling the machines again, including the marquee DreamStation 2, a continuous positive airway pressure, or CPAP, device heralded by Philips when it was unveiled in 2021 for the treatment of sleep apnea. The settlement, which is still being finalized, has to be approved by a court and has not yet been released by the government.

The FDA said it could not comment until the agreement is finalized and filed with the court. The DOJ could not be immediately reached for comment.

It remains unclear how the halt in sales will impact patients and doctors. The company’s U.S. market share for sleep apnea devices in 2020 was about 37% — behind only one competitor, medical device maker ResMed, according to an analysis by iData Research. Philips has dominated the market in ventilator sales, the data shows.

One global market report on Monday referred to the agreement as “very punitive” and noted, “It will be very difficult for Philips to recover its U.S Respironics market position.”

After the announcement, the company’s stock prices plunged by 7% in early trading.

Philips did not address the safety of the recalled devices in its announcement, but the company has previously said that new testing shows the foam causes no “appreciable harm” to patients. The FDA has challenged those claims, saying the company’s tests are not “adequate.”

The settlement comes just weeks after federal lawmakers called for an immediate criminal probe of Philips by the DOJ, and the Government Accountability Office, the investigative arm of Congress, said it will launch an inquiry of the FDA’s oversight of medical device recalls for the first time in years.

ProPublica and the Post-Gazette identified thousands of reported cases of cancer, respiratory illnesses and liver and kidney conditions among users of the recalled machines, as well as more than 370 reports of deaths.

The news organizations found that scientists inside Philips repeatedly raised concerns about the foam and that the company’s own testing called into question its safety claims.

The news organizations also reported that a new and different foam used in the DreamStation 2 and millions of other replacement machines sent out by Philips in the wake of the recall was found to emit dangerous chemicals as well, including formaldehyde, a known carcinogen. The company has said the new foam is safe, but scientists involved in the testing have again raised alarms and the FDA has said additional safety tests are still needed.

In its announcement, the company said it would provide ongoing service and parts for machines already in the hands of doctors and patients and continue selling its devices outside the United States subject to requirements in the agreement.

“Resolving the consequences of the Respironics recall for our patients and customers is a key focus area and I acknowledge and apologize for the distress and concern caused,” said Roy Jakobs, CEO of parent company Royal Philips. “We are fully committed to complying with the consent decree, which is an important step and provides a clear path forward.”

The announcement was the latest in a series of developments at Philips since the recall prompted a global health emergency that sent millions of patients scrambling to find replacement machines and assess the risk of long term exposure.

Philips has discontinued some of the recalled devices, including ventilators and, just last week, the widely promoted DreamStation Go, a portable CPAP.

In an online update and email to U.S. customers, Philips said the decision to pull the devices off the market in the United States was a “strategic” choice that “streamlined” its portfolio. The email reignited anger and frustration among patients and doctors.

“They used to be one of the most respected industry leaders,” said Dr. Radhika Breaden, a sleep medicine specialist in Oregon. “They have lost the trust of many of our sleep patients and many professionals in the sleep field.”

Michael Korsh of the Pittsburgh Post-Gazette contributed reporting.

Update, Jan. 29, 2024: This story has been updated with additional information provided by the FDA.

by Debbie Cenziper, ProPublica, and Michael D. Sallah, Pittsburgh Post-Gazette

How Georgia’s Small Power Companies Endanger Their Most Vulnerable Customers

1 year 2 months ago

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 early 2019, Tina Marie Marsden needed more time to pay her electric bill. A mother in her mid-40s who lived on a fixed income because of a medical disability, she tried to explain to the local utility that the prospect of having no electricity was more than just an inconvenience. A mechanical pump kept her heart beating, and the pump ran on batteries that needed to be frequently charged. If the batteries ran out, Marsden could die.

Marsden had recently moved nearly 40 miles south of downtown Atlanta to Griffin, Georgia, a city that provides electricity to more than 13,000 residents through the utility it owns. Griffin offered customers only a seven-day period to pay past-due bills before cutting off their power — regardless of their health.

Before moving to Griffin, Marsden had gotten her electricity from Georgia Power, the state’s largest utility. State energy regulators require Georgia Power to delay disconnecting a seriously ill customer for failing to pay if they provide proof of a medical condition. Customers are eligible to request a grace period of up to two months.

After seven days passed, the city shut off Marsden’s power. She called her family, pleading with her relatives to lend her money. She cobbled together enough cash to pay the city, and her power was restored before the day ended.

Her relief was short-lived. That spring, when Marsden again fell behind on her bill, she asked a Griffin employee to consider her need for consistent power due to her heart condition. But the employee warned her that her condition would not keep her from being disconnected for nonpayment. The following month, when she missed another due date, the city cut off her power — and did so multiple more times in the years that followed.

Georgia is one of more than a dozen states that require certain utilities to delay disconnections for seriously ill customers for 60 days or more, according to a National Consumer Law Center report. But Georgia’s regulation does not apply to its nearly 100 small electric utilities. These utilities, which are largely overseen by local elected officials or nonprofit board members, can choose to immediately disconnect seriously ill residents who fail to pay their bills on time. Only a handful of states, including Wisconsin and New York, have oversight of municipal utilities and require them to protect seriously ill customers.

“The theory of municipal utilities is ‘Oh, it’s run by the government, it’s got to be better for people,’” said Charlie Harak, an attorney with the National Consumer Law Center, a nonprofit that specializes in consumer protection issues. “Few people are closely watching how they operate.”

As is the case in many states, no Georgia agency tracks how often utilities disconnect people who rely on electric-powered medical devices. ProPublica has identified examples of these kinds of shut-offs across the state. In the small south Georgia city of Fitzgerald, the municipally run utility shut off power eight times to a man receiving at-home dialysis treatment. Another utility in Palmetto, less than 25 miles southwest of downtown Atlanta, several times disconnected a woman reliant on a device to treat sleep apnea, even after she submitted a letter from her medical provider saying losing power could kill her. In the northeastern Atlanta suburbs, Lawrenceville’s utility disconnected a woman who used an oxygen concentrator to treat her chronic obstructive pulmonary disease, leading her son to file a complaint with the utility. “I didn’t know you could just keep shutting off power w a disabled person on oxygen,” he wrote.

Palmetto City Hall in Palmetto, Georgia (Alyssa Pointer for ProPublica)

Representatives for the cities of Fitzgerald and Palmetto told ProPublica that the cities have tried to help seriously ill customers, but noted that they don’t have formal policies addressing those customers. (Fitzgerald declined to respond to questions about the customer who was disconnected.) Lawrenceville has a policy stopping disconnections for customers who turn in documentation from a medical professional of a serious illness; utility officials told the son of the woman with COPD about the policy after he complained about the shut-off, according to emails ProPublica received in a records request.

Griffin Mayor Douglas Hollberg, along with the city manager, declined to answer questions about Marsden, even after she signed a document waiving her right to privacy so the city could discuss her account. In an interview, Hollberg said that his utility strives to accommodate seriously ill customers. However, he said, some people “want to abuse the system” and leave other taxpayers footing the costs.

“We're talking about someone that doesn't want to pay their power bill and thinks that we shouldn't shut them off because they don't want to pay their bill,” Hollberg said. “I'm tired of people wanting to have rights beyond anybody else's rights.”

Griffin Mayor Douglas Hollberg listens during public comment at a city commission meeting in December 2023. (Alyssa Pointer for ProPublica)

Dozens of Georgia’s other small utilities offered ProPublica a variety of explanations for why these kinds of disconnections are necessary. Some executives said that their utilities address people’s need to power their medical devices on a case-by-case basis, while others pointed to financial assistance programs they provide to help customers in need. One Georgia utility maintains an emergency fund supplied by contributions from its employees; another provides customers with a list of local charities that might be willing to cover their overdue bills.

Other officials expressed concern that allowing seriously ill people long periods of time to pay could cost utilities too much.

“There are people who will not be honest with the power provider, and they will use the medical thing to pretty much say, ‘You can’t cut my power off,’” said Mark Bolton, a spokesperson for Coastal Electric Cooperative, a utility that serves 22,000 customers in southeast Georgia. “But we can’t give you free power forever, either.”

Across the country, people who use electric-powered medical devices have died after their late payments triggered utility disconnections, and not all involved small utilities. In 2015, Lester Berry, a 70-year-old Texan with chronic pulmonary disease, died after a disconnection left him without the ability to use his oxygen-producing device. In 2018, a New Jersey utility with more than 2 million customers disconnected power for Linda Daniels, a 68-year-old piano teacher, who gasped for hours without her breathing machine. Daniels’ death led New Jersey legislators to pass “Linda’s Law,” which requires utilities to confirm with customers whether someone in their home relies on an electric-powered medical device before moving forward with a disconnection.

“No one should fear losing their life because their electricity bill is a few days overdue,” Gov. Phil Murphy said upon signing the law in 2019.

Consumer advocates and medical experts say that utilities — and the officials who regulate them — should protect customers whose health could be imperiled by a disconnection. A handful of smaller utilities in Georgia have adopted policies to postpone disconnections for seriously ill customers, according to information obtained by ProPublica through open records requests and survey responses. Experts and residents who spoke with ProPublica said the additional time allows people to apply for financial assistance from local nonprofits, borrow money from family or friends or negotiate a plan with the utility company to pay their bills.

“More time means I can come up with the money on my own,” Marsden said. “More time allows me to keep my pride, maintain my independence and not have to ask others for money.”

Dr. Peter Kahn, a pulmonologist and critical care fellow affiliated with Yale University’s medical school who studies the health impacts of disconnections, said patients of his who have asked their utilities for extra protections are not “looking for a free ride,” but rather seeking help for crucial needs.

“The cost of fighting with people who are looking for small protections over the long term is just not worth it,” Kahn said.

In 2019, around the second time that Marsden’s power was disconnected, she met a woman through a Facebook group called LVAD Friends, where people trade tips about their experiences with a type of heart pump known as a left ventricular assist device. The friend’s utility had threatened to disconnect her power after she fell behind on her monthly payments.

Concerned for her friend, Marsden traveled to Atlanta to seek help from the Georgia Public Service Commission. She thought her elected energy regulators could delay the city from cutting off her friend’s electricity. Instead, the PSC staff told her there was nothing they could do: The commission could help enforce protections for people who get electricity from Georgia Power but had no authority to oversee the disconnection practices of smaller utilities like the one that provided electricity to Marsden’s friend.

City-run power companies and nonprofit electric cooperatives initially sprang up as an answer to inequitable access to electricity in rural parts of the country. In the early 20th century, officials in rural Georgia built their own grids and farmers banded together to fund the construction of power lines that brought electricity to residents outside of major cities. By the 1950s, the vast majority of rural Georgia residents could light their homes, catching up with people living in larger cities like Atlanta and Augusta.

Over the decades that followed, the PSC heightened protections for seriously ill customers of Georgia Power. But in Georgia, as in a number of states across the country, cities lobbied legislators to fend off state oversight of their utilities. Soon after Marsden moved to Griffin, she realized that seriously ill Georgians outside of major cities were being left behind once again, subject to disconnection practices that threatened their quality of life.

In July 2020, Griffin cut off electricity at the home of Kenneth Parson, a retired trucker with diabetes who needed power to refrigerate his insulin. His wife begged city officials to reconsider their decision during the pandemic. The city said it could only restore power once he paid his bill. For more than two months that summer, Parson stored his insulin in a cooler packed with ice. Griffin later cut off power for Tracey Hardaway, who also needed electricity to store insulin pens. Hardaway said she and her husband had paid all but $30 of a more than $250 bill and promised city officials they would gather the remainder in a couple of days. “They would not keep the power on for those two days,” Hardaway said.

Following his disconnection, Kenneth Parson, a 65-year-old retired truck driver, filled a cooler with ice to keep his insulin cold. He did this for more than two months. (Alyssa Pointer for ProPublica)

In recent years, Griffin distributed small grants from a $250,000 program that was funded through the federal CARES Act, which provided emergency financial assistance to Americans during the pandemic. Griffin's city manager declined to answer questions about Parson or Hardaway or provide details about whether they received financial assistance from the city.

A few months after Marsden went to Atlanta to advocate for her friend, Griffin disconnected her power for the third time that year. The clock was ticking: Her heart pump’s battery lasted only 12 hours. When the latest disconnection left Marsden without power for three days, she kept the pump running with the help of a neighbor, who let her run an extension cord between their apartments to charge her batteries.

In June 2021, Marsden was only able to pay about three-quarters of her $365 monthly bill and was at risk of disconnection for a fifth time. Before living in Griffin, she had been accustomed to her local government charging her for water, sewer and garbage collection. Here, the city bundled its electricity charges and those other municipal services into a single monthly bill, which meant that she couldn’t choose to pay only for her electricity. After seven days of Marsden not paying the full bill, the city cut off her power again. “I need power to live,” she recalled thinking. “Is Griffin going to let me die over $80?”

That fifth disconnection spurred Marsden to take action. She tracked down disconnection policies of other small cities across the country and found that some were more forgiving than Griffin to people with electric-powered medical devices. She reached out to city officials to encourage them to adopt a better policy, arguing they were unfairly penalizing residents with disabilities.

Her advocacy prompted city officials to review the disconnection policies. In an internal email ProPublica obtained through a records request, a city attorney erroneously told other staffers that Griffin had “adopted the same policies as Georgia Power.” (A city spokesperson declined to comment about Griffin’s interpretation of Georgia Power’s policy.) The response that reached Marsden was disappointing: The city “will not alter this policy,” a city official wrote. But, that official said, Marsden was welcome to charge her heart pump batteries at City Hall.

Frustrated by Griffin’s response, Marsden decided to speak out at the city commission meeting that September. As she waited anxiously to face her elected officials, her heart raced so fast that she was zapped by her defibrillator, which shocks her heart whenever it beats faster than 220 beats per minute. She cried out loud enough for the commissioners to pause the meeting and for someone to call 911.

The paramedics urged Marsden to immediately go to a hospital for observation, but she insisted on speaking first during the public comment period. They reluctantly agreed. Too weak and out of breath to stand at the dais, Marsden sat in the front row of the audience. She criticized the city for its rigid disconnection policy and urged them to protect their most vulnerable residents.

“We are not asking not to pay,” Marsden said. She went on to ask Griffin to change its policies “so customers who need power to live are not at risk of disconnection, or risk loss of life due to disconnections.”

ProPublica surveyed about three dozen municipal utilities and electric cooperatives of various sizes across the state and found a variety of disconnection policies. About a third of those utilities had policies requiring them to delay disconnections for seriously ill customers. College Park, a small city near Atlanta’s airport, gives residents up to six months to pay their bill without disconnection if they submit a letter from a medical provider. The rest of the utilities that responded didn’t have a policy requiring delays in disconnection for those customers.

Palmetto, just southwest of Atlanta, is one of the municipal utilities without a policy, as 56-year-old Aleica Dockery found out in late 2022. Over a decade earlier, a car accident had killed her daughter and left Dockery using a wheelchair. Dockery provided city officials with a letter from a medical provider notifying them she needed continuous electricity to use her CPAP machine, a device that she used to treat her sleep apnea. The medical provider warned that a disconnection “could lead to catastrophic consequences up to and including death.”

Aleica Dockery uses an electric wheelchair and a CPAP machine that need charging. (Alyssa Pointer for ProPublica)

Palmetto disconnected her electricity anyway. Dockery at the time received $375 a month in disability payments, making it difficult for her to afford the 10% additional charge for paying her bill even a day late. With utility bills that often reached $350, plus a $30 service fee when Dockery was a week late, those charges added up quickly. Like Griffin, Palmetto provides residents with a single bill that includes water, sewer, trash and electricity; if they don’t pay the full bill on time, the city cuts off their electricity first. “That is the thing that people respond to quickly,” explained city clerk Cindy Hanson, though she added that she did not work for Palmetto when the policy was created decades ago.

Hanson said the small city relies on utility payments from its nearly 2,000 customers to balance its budget. The Georgia municipal utilities that ProPublica surveyed earn, on average, about 40% of their total revenue from providing electricity, though some individual cities’ percentages in recent years range from less than 20% to more than 60%. Local officials use that money to subsidize the costs of running their governments. They also use it to offset discounted power to large companies that set up shop in their cities. Griffin, for example, offers new businesses up to a 30% discount on utility rates for their first three years of operation.

Meanwhile, some utility representatives told ProPublica they were not able to provide automatic discounts or even extended grace periods to residents who use electric-powered medical devices. Instead, they said, they offer help on a case-by-case basis and encourage customers to take personal responsibility for paying their bills. Some cities, like Albany in southwest Georgia, recommend that customers with electric-powered medical devices acquire additional batteries or costly backup options such as a generator. Flint Energies, in central Georgia, does not have an official policy on disconnections for people with medical devices but provides a “courtesy call” to warn each customer that they might want to relocate to a place with electricity, such as a relative’s house, “when all options have been exhausted and a disconnection is unavoidable.”

Several smaller utilities offer advanced pay programs, which operate like a prepaid debit card — and allow a power company to immediately cut off power once a customer has reached their allotted amount of electricity. The utilities often market these plans to low-income customers as a way to help them avoid using more electricity than they can afford. But energy and utility law experts cite studies showing these programs can result in more exorbitant fees and more frequent disconnections than regular payment plans. Some utilities refuse to allow customers on prepaid plans to enter into payment plans, leaving them with limited options if they run out of money for electricity.

Coastal Electric Cooperative’s Bolton said the utility helps seriously ill customers facing disconnection pay bills with one-time donations from an emergency fund called “Helping Hands,” stocked by employees’ voluntary contributions. “That’s kind of an example of having policies that fit the people that you serve, and maybe not trying to be so big that you just have to have a uniform cookie cutter policy for everybody,” he said.

State Sen. Frank Ginn, a Republican who has led two legislative committees that oversee power companies, said smaller utilities work best when they regulate themselves. A former employee of smaller Georgia utilities, he has pushed for reduced state regulation of cities on a number of issues, arguing that such regulation ties the hands of local leaders and raises costs for residents. “We have somebody that’s just looking after the public, and that’s the elected officials,” he said.

Ginn said residents should advocate for themselves with their local elected leaders before reaching the point of being disconnected multiple times. “I guarantee you, if they were on top of the communications better, there would probably be a much better outcome,” he said.

On a chilly morning this past December, Marsden walked into City Hall, hopeful that Griffin was ready to change. After years of Marsden questioning officials, filing open records requests and writing formal complaints, the city was now unveiling proposed changes to its disconnection policy for the first time since she moved there. But as she sat in the audience, Marsden realized that the changes proposed were limited for seriously ill customers. The city was considering only an additional one-day extension for those customers to pay before getting disconnected, as well as a requirement for officials to “attempt to call” customers before disconnecting them.

After the meeting, Marsden approached one of the utility’s staff members to lobby for more protections but secured no promises to strengthen the proposal.

The overall proposal fell short of the best practices experts have identified for utilities seeking to protect seriously ill customers. A report published by the NCLC recommended that utilities give seriously ill customers at least 30 days to pay their bills before being disconnected, with the ability to have their payment period extended, and inform those customers ahead of time if they qualify for the protections.

That night, Marsden had one more chance to convince elected officials. During public comments at the city commission meeting, she urged her elected officials to consider something she’d recently learned through her ongoing research: Other utilities serving residents in Spalding County — where Griffin is located — had provided customers with more time to pay bills before being disconnected.

“I don’t know if you understand how embarrassing it is just to say, ‘I’ve been disconnected four or five times,’” Marsden said. But she said she was willing to share her story “to make sure that we have policies in place, that we’re going to look out for people and that we’re going to protect each other.”

Marsden speaks during public comment at the Griffin city commission meeting. (Alyssa Pointer for ProPublica)

Hollberg, a local insurance agent who serves as Griffin’s mayor, pushed back against Marsden’s plea. He said at the meeting that Griffin once used to lose around $3 million in uncollected bills each year. After cracking down on customers who hadn’t paid, the city now had a tenth that much in delinquent collections, he said. As Hollberg saw it, providing the extra accommodations sought by Marsden — even to the tiny fraction of Griffin’s customers who were seriously ill and facing economic hardship — went against what he believed were his “financial responsibilities” as an elected official.

Hollberg then called for a vote to approve the limited proposal. As Marsden watched from the front row, she strained to maintain her composure. She had fought hard for protections for herself and other Griffin residents and followed all the rules for public input, only to end up barely better off than where she started.

Within seconds, the proposal unanimously passed.

Hollberg, center, raises his hand during a vote at the December 2023 commission meeting. (Alyssa Pointer for ProPublica)

Mollie Simon contributed research.

by Max Blau and Aliyya Swaby

The American Museum of Natural History to Close Exhibits Displaying Native American Belongings

1 year 2 months ago

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published.

The American Museum of Natural History, one of the country’s largest museums whose prestige was built in part on excavating Native American gravesites, is shuttering some of its longtime exhibits that display cultural materials that could be subject to return to tribal nations.

The move comes as the New York City museum and many others, including the Field Museum of Natural History in Chicago, consult with tribes and evaluate their compliance with new federal regulations intended to speed up the process of returning ancestral remains and sacred items under the Native American Graves Protection and Repatriation Act. ProPublica published a series of articles last year, called “The Repatriation Project,” about the failures of museums to comply with the law in the past three decades.

Sean Decatur, president of the American Museum of Natural History, told staff in a letter on Friday that the “Eastern Woodlands and Great Plains Halls” will be closed to the public starting Saturday. The letter, provided to ProPublica, was first reported by The New York Times. Both exhibit halls, which contain numerous items from tribes in Montana, the Dakotas, Wisconsin and other states, are “severely outdated,” Decatur said.

“While the actions we are taking this week may seem sudden, they reflect a growing urgency among all museums to change their relationships to, and representation of, Indigenous cultures,” Decatur wrote to staff. “The Halls we are closing are vestiges of an era when museums such as ours did not respect the values, perspectives, and indeed shared humanity of Indigenous peoples.”

This month, the Field Museum also announced it would cover several displays of tribal items, as reported by Native News Online. In a statement, the Field Museum said it is “committed not only to compliance with NAGPRA but to consultation and collaboration with affiliated communities whose heritage is represented in our galleries.”

ProPublica’s reporting based on federal data shows at least 160 tribes may be eligible to claim ancestral remains, funerary items and other sacred objects from the American Museum of Natural History; for the Field Museum, at least 134 may make repatriation claims.

The new federal regulations, which went into effect this month, prohibit the display of items subject to NAGPRA without tribal consent and ban all research done without tribal consent. In addition, the regulations closed a loophole that had allowed museums such as the American Museum of Natural History to keep ancestral remains and burial items by claiming that they are “culturally unidentifiable” — meaning in their view they could not be connected to present-day Indigenous communities based on available evidence — and therefore could not readily be returned to tribes.

Museums will be required to determine, in consultation with tribes, which community can rightfully claim human remains or items in their collections. If a museum finds that it still cannot make a determination, it would have to say why in a notice filed in the Federal Register, Melanie O’Brien, manager of the National NAGPRA Program, an office within the Interior Department’s National Park Service, previously told ProPublica.

Although the American Museum of Natural History banned destructive research on human remains in 2020, ProPublica reported last year that long repatriation delays before then ultimately led to more federal funding for scientists to research the museum’s collections. ProPublica also reported how the museum has yet to return children’s toys taken from the massacre site at Wounded Knee in South Dakota.

Starting long before passage of NAGPRA in 1990, tribal nations have pushed for the return of their ancestors and sacred items held by America’s most prestigious museums and institutions.

ProPublica investigated influential museums that have delayed the return of human remains and sacred objects to tribes. Harvard’s Peabody Museum spent years exploiting NAGPRA loopholes to prevent repatriation to the Wabanaki people. The Metropolitan Museum of Art has displayed cultural objects of questionable provenance. And the Illinois State Museum for decades displayed the open graves of more than 230 Indigenous people. The museum closed the exhibit in the early 1990s and over the past two years removed funerary items from display. A new Illinois law, passed last year, bans museums from profiteering from the display of human remains and funerary objects.

Even before the new federal regulations, there were signs that pressure was building on museums to move faster. In 2023, in part because of the attention from ProPublica and tribal pressure, more ancestral remains were returned than at any other point since the law’s passage in 1990.

But many human remains and sacred objects still reside in their collections.

ProPublica reported in December that museums still hold at least 97,000 ancestors. And of the more than 600 institutions and federal agencies that must comply with NAGPRA, about 180 museums have reported that they have yet to repatriate any ancestors or belongings.

Federal data shows the American Museum of Natural History has made available for return 47% of the more than 3,500 Native American remains that it reported to the federal government. It still maintains control of at least 1,800 ancestors and more than 4,060 funerary items buried with those individuals.

Ash Ngu contributed reporting.

Correction

Jan. 26, 2024: This story previously misstated the number of funerary items still held by the American Museum of Natural History. It is more than 4,060, not more than 7,200.

by Logan Jaffe and Mary Hudetz

21 Bodycam Videos Caught the NYPD Wrongly Arresting Black Kids on Halloween. Why Can’t the Public See the Footage?

1 year 2 months ago

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.

I got my first real lesson in police accountability in 2019 on Halloween. My wife, Sara Pekow, and our daughter had watched an NYPD officer drive the wrong way up a Brooklyn street and hit a Black teenager. The police had been chasing him as a suspect in the theft of a cellphone. When the boy rolled off the car and ran away, the officers turned their attention to other nearby Black boys who seemed to be simply trick-or-treating. The police lined them against the wall of our neighborhood movie theater, cuffed them and took them away.

At the time, I was editing coverage of the Trump administration, not policing. But I was troubled and, frankly, curious. I ended up waiting outside the police precinct with the boys’ families. The boys were released hours later, with no explanation, no paperwork and no apology.

The next day I reached out to the NYPD’s press office and asked about what happened. Eventually, a spokesperson told me that nothing inappropriate had occurred. A police car hadn’t hit the kid, he said. The kid had run over the hood of the car.

I couldn’t get it out of my head. Not just what had happened, but the NYPD’s brazen denial of what my family and others had witnessed. Surely, I thought, that wouldn’t be the end of it.

I was wrong.

Over the past four years, I’ve learned how the police in New York and across the country are largely left to police themselves. Nothing shows that dynamic better than the failed promise of body-worn cameras.

New York City adopted body-worn cameras in 2017, against the backdrop of the Black Lives Matter movement that had emerged after the police killing of Michael Brown in Ferguson, Missouri. The cameras were supposed to bring transparency and accountability. But policymakers in most states, cities and towns left the police in control — with the power to decide what is recorded, who can see it and when.

Police have frequently used that power to withhold footage, not only from the public but also from civilian investigators.

Last year, I noticed a line in a story about the killing of Tyre Nichols. The New York Times mentioned that a number of the Memphis, Tennessee, officers knew their body cameras were on and pummeled Nichols anyway. The fact that they were being recorded didn’t deter them at all.

That’s when I decided to dive in. Over several months, I learned how the police have undermined the promise of transparency and accountability that accompanied the body-camera movement.

The result is a December story published in collaboration with The New York Times Magazine, detailing how departments across the country have routinely refused to release footage and frequently failed to discipline or fire officers even when cameras document abuse.

Three years before Minneapolis police officer Derek Chauvin murdered George Floyd by kneeling on his neck, body-camera video caught him kneeling on the necks of others. One victim was a 14-year-old Black boy whom Chauvin also hit in the head with a flashlight and choked. “Please, please do not kill my son!” the boy’s mother begged as she tried to reach out to help him.

Chauvin’s supervisor at the Minneapolis Police Department had access to the footage and cleared his conduct. Then the department fought against releasing the footage, even after Chauvin pleaded guilty to federal charges in the case.

After the global protests spurred by Floyd’s murder, the New York Police Department committed to publishing video from shootings and other critical incidents within 30 days. Of the at least 380 such incidents since then, the NYPD has published footage within a month exactly twice.

All of which brings me back to Halloween.

A city agency charged with handling complaints of police abuse did a thorough investigation. What the Civilian Complaint Review Board found was a long litany of misconduct: An officer did hit a kid with his car, another one had pointed his gun at one of the other boys and those boys were in fact arrested without justification.

After “extremely substantial delays” by the NYPD, the board had gotten footage showing exactly what happened. It had 21 videos from body-worn cameras. The CCRB concluded that five officers, including a precinct commander, should face disciplinary trials, which is the highest level of discipline within the department.

But in New York, the police commissioner can invoke an almost magical power: to “retain” a case, or take it back from the civilian review board. That’s exactly what the commissioner did in four of the cases. There would be no trials. There would be no significant punishment for the officers.

Instead, the department docked a few officers some vacation days. (The commissioner agreed that the fifth officer should face a disciplinary trial, for using offensive language.)

In response to my questions about the move, a spokesperson said, “As per a memorandum of understanding between the NYPD and the CCRB the Police Commissioner is authorized to retain cases in limited circumstances.”

And those 21 videos? None have been released to the public.

by Eric Umansky

Medicare Certifies Hospices in California Despite State Ban on New Licenses

1 year 2 months ago

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published.

The year 2023 was a banner one for hospice reform. Spurred by media reports, letters from Congress and pressure from lobbying groups, the Centers for Medicare and Medicaid Services increased oversight of end-of-life care. It retooled inspections to focus on quality of care. It made ownership data public for the first time. And, kicking off a plan to visit every hospice provider in the country, its staff made appearances at 7000 sites. Following the tour, the Medicare billing privileges for 46 nonoperational hospices were revoked.

In July, the agency also rolled out a special enforcement program to target hospices in Arizona, California, Nevada and Texas — states with alarming spikes in the number of providers. The increase in hospice numbers had raised concerns inside and outside the agency about fraudulent bills for unneeded services and market oversaturation. During its “period of enhanced oversight,” the agency said, it would scrutinize the claims from new hospices in these states before paying them.

These reforms, however, have done little to slow the region’s hospice boom. CMS data from last year shows that these four states continued to drive most of the growth of new Medicare-certified hospices in the country, with two-thirds of all certifications taking place there. The nation’s leading trade groups for end-of-life care have repeatedly recommended that Medicare impose a moratorium on certifying new hospices in counties that have seen an explosion in questionable startups. This would prevent bad actors from draining Medicare funds, the groups contend, while regulators can investigate fraudulent networks. In response to questions about this recommendation, CMS told ProPublica in a written statement that “if state officials believe there is a hospice issue in their state, they can pursue a state-based hospice license moratorium under their state laws/regulations such as what was done in California.”

California, however, offers an example of why this approach may not be working: Last year, the state temporarily banned new hospice licenses altogether after its auditors found evidence of “a large-scale, targeted effort to defraud Medicare,” with providers charging for patients who did not need hospice care or, in some cases, did not exist. But without a federal moratorium on certifications, the large crop of licensees that were established in the past three years can continue to bill Medicare. “The Department of Public Health is doing a fantastic job of trying to clean it up here in California, but they can’t clean it up fast enough if CMS keeps allowing new hospices to charge for patients,” said Sheila Clark, the president of the California Hospice and Palliative Care Association, a trade group for providers.

Indeed, the agency’s data shows that last year it continued to certify hospices located in buildings that have been flagged by auditors and journalists as potential fraud hot spots. In 2023, Medicare certified 15 more hospices at a two-story building in Los Angeles that is home to more than 100 hospices. It also certified three new hospices last year at a Phoenix address that purportedly houses dozens of providers, all of which have materialized in the past two years.

CMS said that without “evidence of sanctions” that would authorize it to deny certification, the agency cannot prevent these hospices from entering the program. In a recent blog post it added that “we take our role as stewards of the Medicare Trust Funds seriously, and we work to ensure that taxpayer dollars are spent on high-quality, necessary care for each beneficiary.”

Hospice fraud doesn’t just drain Medicare reserves. It also harms patients who are not actually dying, since enrollment cuts them off from curative care. Karen Joy Fletcher, communications director at California Senior Medicare Patrol, which runs a hotline for patients and families, said that hospice fraud continues to be a big problem in the state despite the moratorium.

A few weeks ago, for instance, the hotline received a call from Anna Duran, whose mother has been in a nursing home in Los Angeles County since 2010. Duran was surprised to discover that her mother was unable to get her pacemaker checked because she’d recently been enrolled in hospice by a doctor she’d never heard of. Duran, who holds power of attorney for her mother, determined that no one at the nursing home had enrolled her mother — or thought, for that matter, that she was about to die. She had dementia and high blood pressure, but she was still walking. Each time Duran called the number for the hospice business, no one picked up. An analyst from Medicare has now been assigned to untangle the case, but so long as Duran’s mother is still on hospice, she no longer qualifies for her regular physical therapy appointments. Medicare, meanwhile, has paid the hospice more than $7,500. “Nobody knows how this happened,” Duran said.

by Ava Kofman

“We Buy Ugly Houses” Company Overhauls Policies in the Wake of ProPublica Investigation

1 year 2 months ago

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published.

HomeVestors of America, the self-described largest home buyer in the country, is continuing to reform some of its business practices in the wake of a ProPublica investigation last year that revealed predatory tactics used by the company’s franchises toward homeowners in vulnerable situations.

The company’s 1,100 “We Buy Ugly Houses” franchises will now be required to provide homeowners who sell to them with a simple disclosure. The disclosure provides a three-day window to terminate a sales contract — a safeguard that housing advocates say is critical to guarding against aggressive tactics often employed by cash homebuyers.

It also includes a resource for homeowners to evaluate their options for selling or keeping the home and encouragement to consult with a trusted family member or friend before finalizing a sale.

In addition, HomeVestors “made a series of updates” to its systems and standards, created an ethics hotline for franchise owners to report violations and changed how it trains its franchise owners, a company spokesperson told ProPublica. The company also created a team of “brand compliance auditors” to better police franchise activities, she said.

“HomeVestors takes very seriously the responsibility that comes with being the most recognized brand in residential real estate investing franchising,” the spokesperson said. “We will continue to work to ensure that our core values are reflected in everything we do.”

The changes come in response to ProPublica’s reporting last year that found some HomeVestors of America franchises used deception and aggressive sales tactics to persuade homeowners in vulnerable situations to sell their homes for far below market prices. Some franchises deployed legal maneuvers to make it nearly impossible to get out of a bad deal. While the company said at the time that it didn’t target homeowners based on age or other demographics, ProPublica found HomeVestors aimed its massive advertising apparatus at the types of houses often owned by people in desperate situations or who didn’t fully understand the value of their property.

HomeVestors said ProPublica’s reporting focused on a small fraction of the company’s overall transactions and that predatory behavior isn’t taught or tolerated. The company also moved immediately to prohibit franchises from recording notices on a homeowner’s title to make it more difficult for them to break a sales contract.

Its CEO, David Hicks, stepped down after the articles were published. Hicks said in a letter announcing his retirement that he had been planning it “for some time” but that “recent press” coverage had taken a “personal toll.”

HomeVestors’ new CEO, Larry Goodman, declined to speak with ProPublica. In an interview this month with Franchise Times, Goodman said the company has “formally prohibited franchisee advertising activities that are intrusive.”

The company’s spokesperson did not respond when asked for details on what kind of advertising is no longer allowed. She also declined to provide specifics on how its franchise training has changed under the new standards.

HomeVestors relies on ubiquitous billboards and broadcast and digital advertising. ProPublica’s reporting also found the company repeatedly sent mailers to people who had recently divorced or had a death in the family. Franchise owners also were taught to build relationships with nursing home administrators, divorce lawyers and probate officers to find people who may feel pressed to sell their home.

Burn scars, water shutoff notices, boarded-up windows and police tape represented opportunities to buy low, according to the company’s training materials. So did belongings piled on the curb: “Quickly pursue the property where the trash pile indicates eviction,” its manual instructed.

Ben Ahern, a former Los Angeles franchisee and chair of the company’s Franchise Advisory Council, called the new policies “good moves” that will “probably improve the overall health of the organization.”

"HomeVestors did seem to kind of move over the years into this lackadaisical approach to franchises that needed to be either reprimanded or booted out of the system," he said.

One housing advocate cautioned that the effectiveness of the new disclosure will depend on whether franchisees ensure homeowners fully understand the document. Sarah Bolling Mancini, co-director of advocacy at the National Consumer Law Center, said the disclosure and the cooling-off period are “positive developments.” She added that disclosures aren’t necessarily a panacea. (The disclosure is to be given to homeowners who aren’t represented by a real estate agent, but not more sophisticated sellers such as banks and real estate investors.)

“Context matters,” she said. “Written documents can only go so far. What they are told orally is very important. It’s still possible to give people a document, but to give them, overall, a misimpression of what the transaction is.”

The HomeVestors spokesperson said the single-page disclosure is an addendum to the contract that must be signed separately.

“By making this an addendum to the real estate contract, it keeps the content of the addendum from getting lost or misunderstood in the home sale process,” she said.

ProPublica’s reporting prompted calls from policymakers for better oversight of the cash-homebuying industry. U.S. Sens. Tina Smith, D-Minn., and Cynthia Lummis, R-Wyo., wrote a letter to the National Association of Attorneys General asking for more coordinated policing of the industry and passage of state-level homeowner protection laws.

While the cash-homebuying industry is subject to few federal or state regulations, some local governments have implemented tougher protections for homeowners. In Philadelphia, for example, cash homebuyers are required to provide a three-day cooling off period and make disclosures similar to what HomeVestors is now mandating.

Mollie Simon contributed research.

by Anjeanette Damon and Byard Duncan

FTC Orders Maker of TurboTax to Cease “Deceptive” Advertising

1 year 2 months ago

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published.

The Federal Trade Commission has ordered the maker of TurboTax to stop what it called years of widespread deceptive advertising for “free” tax-filing software.

The order, released Monday, was accompanied by a 93-page opinion that harshly criticized Intuit, the Silicon Valley company behind TurboTax. Intuit’s “deceptive ad campaign has been sufficiently broad, enduring, and willful to support the need for a cease-and-desist order,” the commission’s opinion stated.

The order caps off a process that started four years ago when the FTC launched an investigation in response to a series of ProPublica stories documenting Intuit’s ad tactics. ProPublica revealed how millions of Americans were lured into paid tax preparation products even though they were eligible to file for free through a government-sponsored program. Huge sums of money are at stake: In a single year, tax prep companies led by Intuit generated $1 billion in revenue from customers who should have been able to file for free, according to one analysis.

In a statement, Intuit said it planned to appeal the order in federal court. “There is no monetary penalty in the FTC’s order, and Intuit expects no significant impact to its business,” the statement said, adding that the company “has always been clear, fair, and transparent with its customers.”

Sam Levine, the director of the FTC’s Bureau of Consumer Protection, said in a statement that the order was intended to send a message to all companies: “‘free’ means free — not ‘free for a few’ or ‘free for some.’ Businesses can expect an FTC enforcement action if they harness the power of ‘free’ in the dishonest way Intuit did.”

Apparently in anticipation of the FTC’s order, Intuit recently changed how it touts “free” tax prep.

Here, for example, is how Intuit’s ads used to look. This is taken from Intuit’s website in 2019:

A screenshot from the TurboTax website in 2019

Ads in that period simply stated the product was “FREE Guaranteed.” Other ads took this message even further. The company’s “free, free, free” TV ad campaign featured scenes of people just saying the word “free” for 30 seconds. Intuit pulled its “free, free, free” ads in 2022, after the FTC and all 50 state attorneys general began investigating Intuit’s advertising, but the company continued to tout free tax prep.

Of course, for most customers, TurboTax wasn’t free. A list of conditions (like having student loan interest or unemployment benefits) would disqualify customers from the free offering and force them to pay, often over $100, to have their tax returns filed. People often found this out only after having entered much of their tax information and did not want to start the process over again.

Today, TurboTax ads state that only about 37% of taxpayers will qualify:

A TurboTax ad that ran online Tuesday

The FTC order requires clear disclosures in the company’s ads. TurboTax must inform consumers that most filers won’t qualify.

When ads have the space, Intuit is also required to provide full details of who qualifies to file for free. On the TurboTax website, a link details what “Form 1040 & limited credits only” means: Filers with student loan interest do now qualify, for example, but those with unemployment income do not.

The FTC’s order also has a more general requirement, prohibiting TurboTax from “misrepresenting any material fact.” This “ensures that Intuit does not make other false claims about Intuit’s products to consumers,” the FTC wrote in its opinion.

The fact that Intuit has changed its advertising doesn’t mean it agrees with the FTC. The company raised a host of objections during the process. Intuit argued that forcing the company to tell consumers that its product is not free for a majority of taxpayers would violate the company’s First Amendment right to free speech. It also protested that having to disclose the terms of who would qualify would lead consumers to suffer from “information overload.”

The FTC swept those arguments aside in its opinion, as it did Intuit’s complaint that it was unfair to prevent TurboTax from touting “free” tax prep when its competitors continued to do so. “Courts have long held that it is not defense to an order against unlawful practices that others in a marketplace are similarly engaging in unlawful practices,” the commission wrote.

Not having succeeded at the FTC, Intuit plans to take its arguments to a federal appeals court. Derrick Plummer, a company spokesperson, criticized the FTC as “biased” and said, “we believe that when the matter ultimately returns to a neutral body Intuit will prevail.”

by Justin Elliott and Paul Kiel

Applications Open for ProPublica Investigative Editor Training Program

1 year 2 months ago

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published.

For the second year, ProPublica will invite up to 10 news editors from media companies across the country to participate in a yearlong investigative editing training program, led by the newsroom’s award-winning staff.

Applications are now open for the ProPublica Investigative Editor Training Program. Submissions are due Monday, March 11.

As the nation’s premier nonprofit investigative newsroom, ProPublica is dedicated to journalism that changes laws and lives and to advancing the careers of the people who produce it. The goal of this program is to address our industry’s critical need to diversify the ranks of investigative editors. Building a pipeline of talent is a priority that serves us and our industry.

“ProPublica has made real strides since it was established 15 years ago in building an investigative newsroom, but it has struggled, like our competitors across the country, when it comes to finding journalists with the investigative chops to become editors,” said Ginger Thompson, chief of correspondents and an architect of the editor training program. “Rather than sitting around lamenting the problem, we decided to try to do something to fix it.”

When we announced this program last year, we were overwhelmed by the interest. We chose our inaugural cohort from a stacked field of 159 applicants who were eager to develop their skills as investigative editors.

Then we brought them to New York for an intensive weeklong boot camp featuring a curriculum developed by Thompson and Deputy Managing Editor Alexandra Zayas that breaks down how ProPublica crafts its investigations for maximum impact.

“When reading ProPublica stories, I often wondered how the reporter and editor even thought to do them,” said Brendan Klinkenberg, a member of the inaugural cohort and, now, senior editor at The New York Times. “And in our first course, I started to see in really clear terms how ProPublica thinks about investigations. It was a real curtain-peeled-back moment.”

Members of the inaugural 2023 training cohort gathered in ProPublica’s headquarters for the intensive weeklong boot camp. (Hatnim Lee for ProPublica)

In addition to the sessions, which focus on every aspect of editing from story selection and memos to managing the reporting and digging into the first draft, participants also get to learn from one another.

“Everyone was more open than I expected them to be,” said Lillian M. Ortiz, a member of the inaugural cohort and managing editor at Shelterforce. “I took a lot away from the training session that I’ve brought back to my newsroom. It was also eye-opening to hear about the similar challenges other editors are facing or have faced — especially in newsrooms that are much larger than mine.”

Tracy Jan, deputy health and science health editor at The Washington Post, said, “I left with not only inspiration but also concrete, practical steps I can take as an editor to help our team achieve ambitious, rewarding work.”

This year’s program will begin in June 2024 with a weeklong boot camp in New York that will include courses and panel discussions on how to conceive of and produce investigative projects that expose harm and have impact. The editors will also get training in how to manage reporters who are working with data, documents and sensitive sources, including whistleblowers, agency insiders and people who have suffered trauma. The program continues with a yearlong mentorship pairing and virtual continuing education sessions.

This program is funded through the generous support of the Jonathan Logan Family Foundation, which supports organizations in journalism, film and the arts whose work is dedicated to social justice and strengthening democracy.

Frequently Asked Question What is this?

The ProPublica Investigative Editor Training Program is designed to help expand the ranks of editors with investigative experience in more newsrooms across the country, with a focus on people from underrepresented backgrounds.

What kind of experience can you expect?

The program kicks off with a five-day intensive editing boot camp in New York, with courses and panel discussions led by ProPublica’s senior editors, veteran reporters and other newsroom leaders. The boot camp will include hands-on editing exercises and opportunities for participants to workshop projects underway in their own newsrooms.

Afterward, participants will gather virtually every two months for seminars and career development discussions with their cohort and ProPublica journalists. Each of the participants will also be assigned a ProPublica senior editor as a mentor for advice on story and management challenges or on how to most effectively pursue their own professional aspirations.

What skills should I expect to learn?
  • How to evaluate story ideas and determine the right scope, length and time for getting the work done.
  • How to manage a reporter through a complicated accountability story and communicate feedback in ways that build trust and confidence.
  • How to edit investigative drafts, spot holes in reporting logic, organize a narrative and guide the reporter through the fact-checking process.
  • How to work collaboratively with research, data and multimedia teams to elevate an investigative project.

When is the boot camp?

The five-day, all-expenses-paid boot camp will be held June 2-6, 2024, in New York, with remote sessions via Zoom throughout the year.

Is there a virtual option for the boot camp?

We are planning for the 2024 boot camp to be held in person and will not have a virtual option.

Will I be responsible for my expenses in New York?

ProPublica will cover participants’ expenses for meals, travel and lodging during the boot camp.

How many participants will be selected each year?

Up to 10 journalists.

What if I can’t make it this year?

ProPublica plans to offer this training in 2025 as well.

Who is eligible?

The program is open to all, but we especially encourage people from traditionally underrepresented communities to apply, including women, people of color, LGBTQ+ people and people with disabilities. As part of the application, participants will be asked how their inclusion in the program will help to diversify the editing ranks of investigative journalism.

The ideal participants will have:

  • A minimum of five years of journalism experience, either as an editor or as a reporter primarily doing work with an investigative or accountability focus.
  • A strong grasp of the basics of editing, storytelling, structure and framing.
  • Experience managing a team of journalists or a complicated multipronged reporting project.
  • An accountability mindset: You don’t have to have been on the investigative team, but we are looking for people with an eye for watchdog reporting and editing.

Am I eligible if I live outside of the United States?

Our program is open to all, but our goal is to improve the diversity of investigative editors in the United States and we’ll focus participation accordingly.

How do I apply?

The application period opens on Jan. 23, 2024, and closes on Monday, March 11, at 11:59 p.m. ET. You can apply via this link.

How can I learn more about the program?

We’ll be hosting an informational webinar on Monday, Feb. 5, 2024. You can register and submit questions in advance here.

What if I have other questions?

Send an email to Assistant Managing Editor Talia Buford at talent@propublica.org.

by Talia Buford

How Chicago Became an Unlikely Leader in Body-Camera Transparency

1 year 2 months ago

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published.

A decade ago, the Chicago Police Department drew national outrage after an officer shot and killed 17-year-old Laquan McDonald. Officials had refused to disclose footage of the murder while officers worked to cover it up. But the fallout from the case has also led to a lesser-known and surprising outcome: The city is now a leader in using body-camera footage to deliver transparency.

Notably, an independent accountability office — not the police department — decides what footage from police shootings and other serious incidents is released to the public. That seemingly straightforward setup, the product of the city’s policing reforms, appears to put Chicago in a league of its own.

“I’m not aware of any other civilian agency that does what Chicago does on releasing video,” said Florence Finkle, vice president of the National Association for Civilian Oversight of Law Enforcement. “Transparency is key to accountability.”

As ProPublica reported last month, police departments across the country have been left in sole control of the video from body-worn cameras, a power that has enabled them to undermine the promise of the technology to bring transparency and accountability. The departments have frequently kept footage from public view — and even from civilian investigators, who can find themselves hamstrung without key evidence in a case. In New York, for example, a disciplinary case against officers involved in the killing of a man in crisis recently collapsed after the NYPD withheld footage of the incident for more than a year.

Chicago, of course, has a long history of brutal, violent policing — abuse that’s often been accompanied by a code of silence.

After the McDonald shooting in October 2014, the police initially reported that he had lunged at officers with a knife. But then a whistleblower reached out to a local law professor. “They told me there’s video and it’s being covered up,” recalled University of Chicago’s Craig Futterman, who pushed for the release of the dashcam footage. The city, under then-Mayor Rahm Emanuel, refused. A year after the shooting, a judge finally forced the city’s hand, and Chicagoans saw for themselves that McDonald had been walking away from officers when he was shot 16 times. As he lay on the road bleeding, a knife lay beside him, folded.

The footage triggered sweeping change. The officer who killed McDonald was convicted of murder. The police chief resigned. The federal government investigated, and police oversight in Chicago was reimagined. The city created the Civilian Office of Police Accountability, and tasked it with not only investigating misconduct but also disclosing footage from shootings and other serious incidents.

Chicago committed to releasing footage within 60 days of an incident. “The people of the City have an undeniable, and in some cases paramount, interest in being informed, in a timely fashion and based on the most accurate information possible, about how their police force conducts its business,” the new policy stated. It also committed the city to giving family members of those shot an opportunity to see footage first.

Jamie Kalven, a Chicago journalist and advocate who helped reveal what had happened to McDonald, said, “That case changed public expectations and norms in Chicago. Releasing the video became the new expectation.”

In most other cities, civilian oversight agencies have to ask police departments for footage, which often isn’t shared. Chicago initially had that kind of cumbersome setup too. “We used to have to file paper forms for a video,” said Shannon Hayes, COPA chief of investigations. But a year after the agency began, and in line with the demands for change, it got the ability to log into the system that stores footage. Allowing investigators to search for footage themselves “was huge,” said Hayes. “It’s night and day.”

In New York, home of the nation’s largest police force, local lawmakers have been seeking the same kind of access for the Civilian Complaint Review Board, the city’s equivalent of COPA. “Transparency is essential to improve public safety and community trust,” City Council Speaker Adrienne Adams said on X, citing ProPublica’s reporting. The legislation, however, has stalled amid opposition from the NYPD. A department official told lawmakers last year that the department “does not fear transparency,” but argued that it would be an “insurmountable obstacle” to give the review board direct access while following state confidentiality laws.

In Chicago, the civilian agency has used its access to do thorough investigations. “They’re the highest quality I’ve ever seen in Chicago,” said University of Chicago’s Futterman, who has long been critical of the city’s policing oversight. Those investigations have, on occasion, resulted in officers being fired.

COPA’s release of footage has also undermined the Police Department’s attempts to spin narratives around shootings.

In early 2021, a Chicago officer responding to a report of gunfire shot and killed 13-year-old Adam Toledo. The police initially referred to it as an “armed encounter.” An adult suspect had allegedly handed a gun to Toledo as police arrived. Two weeks after the shooting, the police released edited footage from the officer’s body-worn camera. The video included an added arrow, pointing to Toledo’s hand, saying, “Firearm.”

Two weeks after a Chicago police officer shot and killed 13-year-old Adam Toledo, the department released edited and annotated footage from the officer’s body camera. (Chicago Police Department)

But that same day, COPA released the full, unembellished footage, along with other records from the case. The video appears to show that Toledo dropped the gun and raised his empty hands in the air moments before Officer Eric Stillman shot him.

The full, unedited body-camera footage, released the same day by the Civilian Office of Police Accountability, shows Toledo raised his empty hands moments before the officer shot him. (Chicago Police Department)

A local prosecutor declined to press charges against Stillman, saying that he had responded to a “perceived threat.” (Neither a lawyer for Stillman nor the Police Department responded to requests for comment.)

COPA did its own investigation and found that the officer should not have shot Toledo and should be fired.

But the case also highlights the limits of the changes in Chicago. While COPA can recommend discipline, it can’t impose it. Instead, discipline is decided by a separate civilian board. Cases often take years to wind through the system. Nearly three years after the shooting, Stillman’s recommended firing is still pending a decision from the board. (The board declined a request to comment.)

There are other ways in which Chicago’s setup is far from perfect, said Kalven, the local journalist. He has been pushing for Chicago to commit to releasing footage more quickly than the 60 days the city committed to long ago — and he says it should be “all body-camera footage of all officers at the scene,” as opposed to all “relevant” footage, a determination made by COPA. The changes, said Kalven, should be enshrined in law.

Chicago’s main police union, however, has pushed for less transparency. The Fraternal Order of Police’s new contract negotiated last year includes a variety of restrictions on the use of the cameras. “Post-incident conversations” captured by cameras cannot be used in discipline cases, nor can videos captured by “inadvertent camera activation.” (Officers in Chicago have a history of failing to turn on their cameras.) The union did not respond to a request for comment.

Still, policing does seem to be changing in Chicago. Shootings by officers are down in recent years, as are incidents of officer use of force.

“I think Chicago may have more civilian oversight than other police forces in the country right now,” said Arewa Winters, a Chicago community organizer. “But there is a lot of resistance. There is still a lot of work to do.”

Winters’ 16-year-old nephew was killed by officers in 2016, a trauma that “catapulted” her into activism. There was footage of what happened, but the police and city didn’t release it, claiming confidentiality because he was a minor. “Now, because of oversight, they don’t have a choice,” she said.

by Eric Umansky

How Patients and Doctors Are Navigating the Fallout of the Massive Recall of Philips Breathing Machines

1 year 2 months ago

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 2021, Philips Respironics recalled its DreamStation breathing machines, along with other sleep apnea devices and ventilators, leaving millions of customers worldwide waiting for replacements. Foam inside the machines could crumble in heat and humidity, sending potentially carcinogenic materials into the lungs of patients.

I spent eight months making a film about this, following sleep apnea patients through airports to doctor appointments. I recorded their home lives, their bedtime routines. I tried to capture the claustrophobic details of the mask that fits tightly over the nose and mouth.

In February 2023, when I first began having conversations with the reporting team investigating the recall about making a film about sleep apnea, I wondered how I would visualize sleep. I could use interviews to spell out the intricacies of what went wrong, but how would I bring the reality of restricted breath to the screen? And why would someone who doesn’t have sleep apnea choose to watch this?

I got part of that answer from one of the film’s participants, Dr. Carol Stark, who said: “Sleep isn’t a luxury. It isn’t optional.”

(Video by Liz Moughon/ProPublica)

What these patients need help doing — breathing while sleeping — is something that I took for granted before making this film. As I learned more about the patients who relied on the DreamStation machine and other Philips devices, the heart of the film surfaced at a crossroad between two impossible decisions: continue using something that could be harmful or stop using it and risk heart attacks, strokes or even death.

An investigation by ProPublica and the Pittsburgh Post-Gazette found that the company received thousands of warnings over the span of 11 years but withheld them from the government and the public. In statements, the industry giant said that it acted as soon as it learned of the “potential significance” of the problem and that the machines are unlikely to cause harm.

I have been making documentaries and photo essays for over a decade, and a guiding principle is that if you’re able to capture a person’s day to day, no matter how unrelated it is to the issue, viewers might see them as people not so different from themselves. So I chose to introduce the patients with their histories and hobbies; I reused footage from a professional drummer’s archival videos and captured a couple lap swimming in their 70s. It was important to me to frame the participants as people first — not defined by their health condition. We don’t need to have sleep apnea to connect with them.

How many of us have experienced something unjust done to us but we had to pick up the shards ourselves? “You can do everything right and the people who should be taking care of things are not,” Carol’s husband, Dr. Allen Stark, who also has sleep apnea, said.

Mark Edwards, another patient, demonstrated profound acceptance in order to move through this recall. At times, he heatedly talked about the company, still angry at how its actions have impacted thousands of people; other times, he expressed his belief that the more he suffers the closer he gets to God. “I have one foot in the next life and one foot in this life,” he said, heaving after only minutes of walking.

The film follows these three patients and a sleep medicine specialist, Dr. Radhika Breaden, who described the chaos of the first few days of the recall. Thousands of her patients angrily called with questions that could not yet be answered. “We don’t know what to do,” she said, as bewildered as them. I tried to capture these moments with 14 drone shots that populate the screen in just eight seconds. These rapid clips, both rural and urban landscapes to represent the locations of people affected worldwide, were intended to make the viewer feel the tension and desperation of the moment.

It was crucial to show the disintegration of the foam inside the machine, so I researched YouTube for archival videos from other users. The most disturbing one reveals a once-intact block of foam dissolved into loose, messy particles. To visualize metaphors of these particles, I filmed water droplets spewing out of a sprinkler and details of puddles lit by street lamps.

The most moving sequence to me is of Carol and Allen Stark picnicking and hiking with their grandchildren because it’s tenderly paired with Carol describing her fear: no longer being alive with her grandchildren. It’s a real possibility that tomorrow she could learn that she has a health complication. After all, many other people who used these machines died, developed cancer or came down with respiratory complications that they or their loved ones believe were related to the use of these machines. The Starks are treating their sleep apnea to be able to live, and it was important to show how they want to live.

But my initial challenge — how do you visualize sleep? — still remained. We all sleep. We all breathe. So I looked for metaphors in our world that are universal. Fog representative of breath. Sunset preceding the nighttime rest. A reflection of pillows on a bed. Vistas of waves, mountains and a coastline when Breaden describes REM sleep as “the most stunning, beautiful thing in the world.”

I hope you watch this film because it’s a story for everyone who sleeps.

by Liz Moughon

Washington State Is Leaving Tribal Cultural Resources at the Mercy of Solar Developers

1 year 3 months ago

This article was produced for ProPublica’s Local Reporting Network in partnership with High Country News. Sign up for Dispatches to get stories like this one as soon as they are published.

In the autumn of 2021, an 800-page report crossed the desk of Washington state lands archaeologist Sara Palmer. It came from an energy developer called Avangrid Renewables, which was proposing to build a solar facility partly on a parcel of public land managed by the state. Palmer was in charge of reviewing reports like these, which are based on land surveys intended to identify archaeologically and culturally significant resources.

Developers have proposed dozens of similar solar and wind projects across the state — a “green rush” of sorts amid rising fears of climate change. With the projects came more reports.

Often, Palmer, who worked for the Washington State Department of Natural Resources, read the reports and signed off; sometimes she shared notes on any concerns or told the developer to have the archaeologists they’d contracted with do additional fieldwork. This time, as she looked at the report, she grew concerned. The consulting company that Avangrid had hired, Tetra Tech, had included a lot of boilerplate language about human history on the Columbia Plateau, but fewer details than Palmer expected about what was actually found on the land.

Palmer knew that the parcel, located on a ridge called Badger Mountain, near the confluence of the Wenatchee and Columbia rivers, was historically a high-traffic corridor for the škwáxčənəxʷ and šnp̍əšqʷáw̉šəxʷ peoples (also known as the Moses Columbia and Wenatchi tribes). The area would likely be rich in cultural resources, including historic stone structures and first foods, the ingredients that make up traditional Indigenous diets.

Palmer was used to helping developers improve their technical reports to meet state standards. So, as soon as the snow melted, she drove out to Badger Mountain to look at the land herself.

As she walked the sagebrush overlook, Palmer quickly found signs of current-day Indigenous ceremonial activity, as well as ancient sites such as stone structures that can look like natural formations to the untrained eye but serve a variety of functions, including hunting and storage.

Most of the proposed development is on private lands, which Palmer lacked the authority to access. But in about 20 hours of fieldwork on the state-owned parcel, over the course of several days, Palmer said she found at least 17 sites of probable archaeological or cultural importance not listed in Tetra Tech’s survey. She would find more on subsequent visits.

Over the next year, Palmer’s findings — and how she shared them — would pit her against corporate and political forces that seemed determined to push the project through.

As soon as she returned from her initial trip, Palmer emailed her findings of “serious deficiencies” in Avangrid’s report to her colleagues at the Department of Natural Resources, which manages lands like the Badger Mountain parcel for the purpose of generating revenue for public services. Palmer called the situation “extraordinary,” noting that she had found a significant network of interconnected archaeological sites from before the arrival of white settlers.

Palmer also forwarded her findings to two tribal nations whose resources would be impacted: the Confederated Tribes of the Colville Reservation and the Confederated Tribes and Bands of the Yakama Nation, where the škwáxčənəxʷ and šnp̍əšqʷáw̉šəxʷ people are enrolled today. The tribal nations retain the right, via treaty and other legal mechanisms, to continue cultural practices like harvesting on any public lands in their ancestral territory. Treaties are considered the “supreme Law of the Land,” according to the U.S. Constitution, and the courts are supposed to view them as “equivalent to an act of the legislature,” according to U.S. Supreme Court Chief Justice John Marshall.

States play a role in upholding treaties, which require them to protect cultural resources on public lands. To do that, the state needs to know what resources are out there. For energy projects in Washington, state officials like Palmer generally rely on developers to conduct the surveys to find out.

Developer-conducted surveys have caused issues elsewhere: Officials in Mecklenburg County, Virginia, for example, pressured their consulting archaeologists to change a report that concluded a Black cemetery was eligible for historical designation, while in Louisiana, an archaeological firm, under pressure from its clients, edited a report to downplay evidence that a grain facility threatened notable Black historic sites.

Joe Sexton, an Indigenous rights attorney with the Washington law firm Galanda Broadman, said developer-funded archaeologists are a chronic problem in the state. Their reviews “are at best deficient and at worst deliberately negligent in overlooking tribal interests, overlooking clear potential for, for example, human burials, not considering sacred sites, not discussing with tribal elders and considering oral histories in particular,” he said.

Tetra Tech did not respond to repeated requests for comment.

In an emailed statement, an Avangrid spokesperson said the company has followed “all relevant law and regulation” with regard to the Badger Mountain solar project. The company “has taken additional steps to accommodate stakeholder feedback where possible,” the spokesperson wrote. “We will continue to do so as the project moves forward.”

In late May and early July of 2023, the Colville Tribes and the Yakama Nation officially registered their disapproval of the survey for Badger Mountain with the state agency in charge of permitting the solar project. Last fall, the agency took the rare step of requiring Avangrid to pay for a second, independent survey.

But even a perfect cultural survey only tells the state where cultural resources are; it doesn’t necessarily prevent them from being damaged, removed or destroyed.

In June, at a tribal summit with state agencies and developers in Tacoma, Washington, Yakama Nation archaeologist Noah Oliver criticized the state’s green rush. “It’s a land grab,” he said, pointing to the entire method of siting, permitting and consultation for renewable energy projects. “The system we work under is broken.”

The Yakama Nation considers all of Badger Mountain to be a traditional cultural property — government parlance for a place the tribes have identified as significant and eligible for federal protections. It is also an important harvesting site for the heirloom foods that make up much of Colville people’s diets. Andy Joseph Jr., an elected member of the Colville Tribal Business Council, estimated that the Badger Mountain project would destroy roughly half the root vegetable harvest in the area.

Joseph said the destruction of tribal food systems began when white settlers arrived, eroding community health and forcing assimilation. The building of Columbia Basin hydroelectric dams in the mid-20th century extirpated salmon from much of the upper Columbia River. The impacts were so severe that the Yakama Nation called the construction of one dam “cultural genocide,” committed to develop renewable energy, and Joseph said the new development plans continue that practice.

Joseph, who has also served on the National Indian Health Board, said protecting the healthy foods on Badger Mountain is vital to the well-being of Native people, who experience some of the nation’s worst health disparities. Tribal leaders have declined to describe or identify their heirloom crops out of concern that the non-Native public might overharvest or commercially exploit them.

“This is one of the last places where our roots aren’t being sprayed by anybody or they’re not grazed over by animals,” Joseph said. “It’s our food cache, and we don’t want it ruined.”

This is one of the last places where our roots aren’t being sprayed by anybody or they’re not grazed over by animals. It’s our food cache, and we don’t want it ruined.

—Andy Joseph Jr. of the Colville Tribal Business Council

As well as being a source for foods, Badger Mountain is culturally critical as an active ceremonial ground, and some of the rock features crafted by tribal ancestors are spiritual in nature. As they do with root vegetables, the tribal nations keep ceremonial information private to protect it from appropriation or commodification by non-Natives. But Joseph said root harvesting begins with a prayer ceremony, which tribal elders teach to the youth, feeding both the body and spirit.

Political pressure to advance the Badger Mountain project has been growing for years. In 2018, DNR developed a plan to lease out state lands for solar and wind projects. Three years later, Gov. Jay Inslee signed his blockbuster Climate Commitment Act, formalizing a statewide goal of reducing net climate pollution to zero by 2050 and opening the doors to a sweeping array of development opportunities. As of early 2023, developers had proposed 50 new solar and 12 new wind projects across the state, according to government data. Most are in eastern Washington where the ancestral lands of the Colville Tribes and the Yakama Nation are.

By March 2019, DNR was discussing developing Badger Mountain with Avangrid, which had become a powerful player in the Northwest’s push for green energy. The company built Washington’s largest solar facility, the Lund Hill solar project, south of Badger Mountain in Klickitat County, and it also operates the largest solar facility in Oregon.

Avangrid, its subsidiaries and its parent company, Iberdrola, have faced legal and economic tumult in recent years, including millions of dollars in fines related to service issues with its subsidiary Central Maine Power and opposition to a now-canceled merger agreement with New Mexico’s public utility. In a statement, a company spokesperson said that Central Maine Power had improved its standing and “met or exceeded service quality benchmarks for more than three consecutive years.” Concerns regarding the merger were not relevant to Badger Mountain, the statement reads, and the merger “had wide support.” The company is “dedicated to being a socially responsible business and corporate citizen,” the spokesperson said.

In Washington, as Avangrid was in talks with DNR about Badger Mountain, the company was also negotiating leases for private lands around the state’s parcel and was ready to move ahead.

Before Avangrid could build, however, it would have to satisfy the State Environmental Policy Act, in part by documenting potential cultural resources. That’s where the developer-conducted surveys come in.

To conduct its survey of Badger Mountain, Avangrid hired Tetra Tech, a Pasadena-based company that has previously faced criticism for insufficient scientific work. In 2018, two Tetra Tech supervisors pleaded guilty to falsifying records on a shipyard cleanup project in San Francisco, part of an ongoing legal battle over the allegedly inadequate cleanup of a Superfund site. The U.S. Department of Justice joined three whistleblower lawsuits against Tetra Tech. In response, Tetra Tech sued the companies that the Navy hired to look into the cleanup work. Last year, a group of homeowners sought class status against Tetra Tech, alleging the company had falsified work that stunted property values; Tetra Tech challenged a separate class action lawsuit about the same site, filing a motion to dismiss and arguing the case was based on “unsupported speculation about alleged widespread data falsification.”

Given the issues she found with the survey, Palmer said, “it always seemed like the simplest thing to do would have been to tell Avangrid, ‘Look, we're going to need you to hire a different consultant.’”

But the Department of Natural Resources didn’t do that.

Critics say DNR’s dual responsibility for both protecting and monetizing state lands has sometimes worked against the interests of tribal nations. “We've seen prioritization of monetary interest, certainly over tribal resources and resources important to Indigenous people,” said Sexton, who has represented the Yakama Nation against city and county governments, as well as federal agencies, to protect tribal rights on treaty lands.

DNR “is committed to engaging Washington’s Tribes when it comes to safeguarding lands and resources,” agency spokesperson Courtney James wrote in an emailed statement. “While we are committed to using state lands to build the clean energy future we need, we understand the care we must take to ensure projects don’t impact critical cultural resources.”

In an interview, Michael Kearney, head of product sales and leasing at DNR, said, “I do understand the concerns with the project proponent hiring their own specialists,” adding that “there are potential pitfalls with that.” But he said the agency doesn’t regulate renewable energy developers and can’t force developers to edit their cultural survey reports.

“We generally consider that to be a proprietary or business relationship,” Kearney told High Country News and ProPublica. “We’re not really playing that regulatory function.”

(Illustration by J.D. Reeves, special to ProPublica and High Country News. Source images: Sara Palmer, United States Geological Survey, Washington State Department of Natural Resources.)

Palmer, however, felt compelled to step in.

After conducting her field work, Palmer emailed her colleagues: “I consider it unlikely that Tetra Tech will be able to produce a legally defensible technical document.”

Palmer said her findings quickly escalated tensions. “What I had seen was very inconvenient to the development plans out there, and it was clearly something that the project proponents did not like,” Palmer told HCN and ProPublica. She believed that it put DNR leadership in a “very uncomfortable situation where they had an unhappy, politically connected developer.” Neither Avangrid nor DNR would comment on this characterization.

Avangrid itself pushed back.

On May 5, 2022, about two weeks after Palmer emailed her findings to DNR colleagues, Avangrid’s director of business development, Brian Walsh, sent her a string of urgent text messages, which HCN and ProPublica obtained through a public records request. After Palmer said she wasn’t available to talk, Walsh insisted that she keep her findings private and not share them with the tribes.

“I wanted to make sure any comments or concerns based on your field visit to Badger Mtn remain internal until we have had a time to discuss w peer professionals,” Walsh wrote. “We would like the opportunity to discuss any of your concerns before they are communicated externally, especially w the tribes.”

In fact, Palmer was at Badger Mountain that day — showing her findings to a Colville tribal archaeologist. DNR shares cultural surveys with the tribes, and Palmer regularly communicated with tribal archaeologists.

“Can you respond to my question on any external communications that you have made on Badger cultural?” Walsh persisted. “Specifically the tribes.” Palmer did not respond.

On May 12, 2022, after Palmer told the Yakama Nation about her findings on Badger Mountain, tribal leaders sent a letter to the state, saying the deficiencies in Tetra Tech’s report had far-reaching implications, since the company was doing other work on Yakama lands as well. “At this time we will not accept cultural resources work conducted by this contractor,” wrote Casey Barney, manager of Yakama Nation’s cultural resources program.

In response, DNR held a series of meetings with other agencies, Avangrid and tribal representatives. Handwritten DNR meeting notes obtained through a public records request show that Walsh told DNR officials that Palmer had gone “rogue.” DNR confirmed that this was Walsh’s characterization of Palmer.

According to Palmer, DNR leadership stopped including her in meetings with Avangrid and appointed the agency’s clean energy program manager, Dever Haffner-Ratliffe, as the sole point of communication with Walsh.

Agency group chats show that Tetra Tech instructed its staff not to speak with Palmer, even regarding other projects, for “political” reasons.

We would like the opportunity to discuss any of your concerns before they are communicated externally, especially w the tribes.

—Brian Walsh, Avangrid’s director of business development, in a text message to Sara Palmer

Emails from June 10, 2022, show that Walsh asked for the power to vet external agency communications before they went out to the tribes or other agencies and threatened to pull Avangrid’s business — by moving the project forward on private lands only, depriving the state of any potential revenues — if the agency didn’t comply. He also asked DNR to issue Avangrid a lease before the state’s environmental review process was complete; DNR and Walsh acknowledged this was something the agency had done for him before under other circumstances. Haffner-Ratliffe told Walsh that neither would be possible.

But DNR had been sending Walsh mixed signals. Before his exchanges with Haffner-Ratliffe, the agency had already given Avangrid a letter of intent to lease once the review process was complete, for Walsh to show to his superiors. And the agency had allowed Walsh to vet a draft of the letter before sending it out.

Emails show that DNR intended the letter to assure Avangrid that Walsh was making progress securing the land, even while the environmental review process was pending. And the agency knew it had to be careful, because the letter could give the impression externally that it had made the decision to lease before the environmental review was complete.

Even after Haffner-Ratliffe denied Walsh’s requests for a lease and approval to vet communications, he kept pushing. He kept repeating these requests and asked her to cite state laws supporting her denial of them; he also asked her to loop in a supervisor who could authorize her reply.

By the end of the year, another state lands archaeologist besides Palmer had emailed Haffner-Ratliffe regarding Walsh’s behavior in meetings, saying he had been “combative and provocative to me in particular,” and tried to “bully me into giving him the answers he wanted.” The interactions, she wrote, left her shaking and in a cold sweat.

On Dec. 21, 2022, Haffner-Ratliffe emailed DNR leadership asking them to address Walsh’s behavior toward at least three women within the agency. “I’ve experienced him yelling at me in meetings,” she wrote, adding that he had demanded preferential treatment and asked staff to violate state laws. “So far, the direction I’ve received has primarily been that I should listen, be cooperative, and communicative.” Avangrid and Walsh, who has since left his position at the company, denied asking DNR to violate any state laws.

DNR spokespeople said the agency addressed some of Haffner-Ratliffe’s specific concerns, like making sure managers were present in meetings with Walsh and giving staff the authority to end meetings or phone calls if they became uncomfortable. Nevertheless, Haffner-Ratliffe left the agency in January 2023. In her resignation letter, she said she was leaving because of a “lack of support” and “unprofessional behavior by clients and peers going unaddressed.”

Haffner-Ratliffe declined a request to comment for this story.

Walsh told HCN and ProPublica that Avangrid conducted an internal investigation into his conduct and cleared him of any wrongdoing. Avangrid declined to comment on Walsh’s claim.

Palmer continued to advocate for accurate documentation of cultural resources. On Oct. 31, 2022, Tetra Tech updated its cultural survey to reflect some of Palmer’s findings, listing more stone structures.

But Palmer told DNR colleagues that the updates were inadequate. “A number of resources that I have observed in the field are not included in this documentation or in previous documentation I have seen from Tetra Tech,” she wrote in an email obtained through a public records request.

Palmer added that date estimates were also off, and some stone features were mischaracterized as natural formations, while others were missing entirely.

Still, in May 2023, Avangrid submitted Tetra Tech’s updated survey, which then became available to the Colville Tribes and Yakama Nation for feedback.

Avangrid representatives said they were unaware of the issues with the initial survey and, when they became aware of them, modified their project plans to accommodate the tribally significant sites. They acknowledged that the state concluded that the updates were inadequate.

(Illustration by J.D. Reeves, special to ProPublica and High Country News. Source images: Andy Joseph, United States Geological Survey, Washington State Department of Natural Resources.)

A number of tribal officials and sources in state agencies told HCN and ProPublica that tribal opposition to a cultural survey rarely, if ever, makes a difference. But this time it did.

The permitting authority for the Badger Mountain project is a state agency called the Energy Facility Site Evaluation Council. The agency has the power to recommend proposed renewable energy developments to the governor for project permits. Additionally, it will produce the environmental impact statement and oversee the process of satisfying state environmental regulations.

The Colville Tribes and Yakama Nation both filed official comments with EFSEC stating that Tetra Tech’s updates failed to address their concerns. According to the Colville Tribes’ comments, the survey included only four of the archaeological sites that Palmer had found and missed additional sites recorded by a Colville tribal archaeologist. The Yakama Nation requested a full redo of Tetra Tech’s cultural survey by an independent third party. And this time, tribal concerns were echoed by comments from DNR and the Washington State Department of Archaeology and Historic Preservation.

By October 2023, EFSEC commissioned an independent cultural survey. Karl Holappa, EFSEC’s public information officer, told HCN and ProPublica that agency leaders do not recall ever previously commissioning an independent cultural survey, and a public records request shows that there’s no record of one at least in the past decade.

Holappa said in an email that EFSEC took this step to “ensure confidence in the outcome of the Survey by all parties.” He added that the new cultural survey will replace Avangrid’s and that the date of completion will partly depend on when the snow melts, making the ground visible again.

The new cultural survey doesn’t necessarily mean that EFSEC will recommend against issuing a permit for the Badger Mountain project. “I’ve never had EFSEC stop a project on cultural resources — not that I’m aware of,” said Allyson Brooks, the historic preservation officer in charge of the Department of Archaeology and Historic Preservation. Holappa said EFSEC doesn’t have the authority to stop a project during the site evaluation process. DNR and the Department of Archaeology and Historic Preservation also said they lack the power to approve or deny a project.

Still, EFSEC can advise the governor not to permit the project, and DNR could also withhold a lease. State law does authorize agencies to deny a proposed project if it would have significant impacts and insufficient mitigations.

In an email to HCN and ProPublica, Holappa said EFSEC thoroughly examines impacts on cultural resources and tribal concerns during the site evaluation process. “EFSEC will complete its review before making any recommendation to the Governor either to reject this project, to approve it as proposed, or to approve it with additional conditions,” he wrote.

Oliver, the Yakama Nation archaeologist, said having tribal nations take the lead on renewable energy development would be one way to solve the bigger problem. “They’re the ones who have the knowledge” to avoid sensitive sites, he said. The developers themselves can also include tribes: For the Lund Hill renewable project, Avangrid contracted directly with the Yakama Nation to survey the land. Oliver also recommended the state survey public lands and catalog cultural resources before any developers propose projects.

Brooks, the state historic preservation officer, has been working with the governor’s office on a pilot project to do that, allocating about half a million dollars for the Department of Archaeology and Historic Preservation to inventory cultural resources on some state lands.

Some critics say that plan still overlooks the core issue: Federal and state governments don’t recognize tribal nations’ authority to stop or alter development projects that threaten cultural resources on off-reservation lands where they hold legal rights.

“It's incredibly important for tribal nations to have a decisive say over their land, territories, resources and people,” said Fawn Sharp, vice president of the Quinault Indian Nation and former president of the National Congress of American Indians. “For us to fully engage and fully exercise the broad spectrum of authorities that are inherent to our sovereign interests, we absolutely must have free prior and informed consent as a recognized policy.”

Meanwhile, the Yakama Nation is using federal funds to build solar panels of its own, in a way that it says supports tribal communities. “Non-carbon emitting energy projects are positive advancements our state and country needs, but not at the cost of our traditional grounds and resources,” Yakama Nation officials wrote in an emailed statement to HCN and ProPublica. “Yakama Nation supports responsible energy development efforts. The Badger Mountain project, and the developer’s approach to advancing the project, fall far short of responsible energy development.”

In early 2023, Palmer left DNR, in part due to her frustration with the Badger Mountain project. “I would like to think that we can model a better way to do rural economic development,” she told HCN and ProPublica. “I would like to think there are alternative ways of operating that aren't just corporations preying on people, and no regulation.”

Mariam Elba contributed research.

by B. “Toastie” Oaster, High Country News

FEMA Leader Overseeing $4 Billion Fund to Pay Victims of New Mexico Wildfire Steps Down

1 year 3 months ago

This article was produced in partnership with Source New Mexico, which was a member of ProPublica’s Local Reporting Network in 2023. Sign up for Dispatches to get stories like this one as soon as they are published.

The director of a federal office overseeing a nearly $4 billion compensation fund for victims of a New Mexico wildfire that was accidentally triggered by the U.S. Forest Service is stepping down.

Angela Gladwell’s reassignment comes as the Federal Emergency Management Agency restructures its disaster response in the state amid sustained criticism of its handling of disaster aid and payments for damages, which Source New Mexico and ProPublica have reported on for the past year.

The largest wildfire in state history, the Hermits Peak-Calf Canyon Fire destroyed at least 430 homes and cost billions of dollars in firefighting services and damage. About 29,000 claimants, including residents, businesses and nonprofit organizations, could be eligible for payments, FEMA has said.

Many residents have been in limbo as they await checks to rebuild. The agency’s claims office didn’t make its first payment to a victim until April, seven months after the office was created. By midsummer, more than a year after the fire had ripped through the mountains of northern New Mexico, the claims office had paid less than 1% of the total allocated. It has now paid $311 million, about 8% of the total approved by Congress. Several lawsuits allege the claims office has missed payment deadlines.

FEMA also faces two lawsuits over its decision not to pay for intangible losses, like the stress of fleeing the fire and being displaced from home for weeks or months. FEMA has declined to respond to questions about its decision, citing the litigation.

Gladwell, a longtime FEMA official and the face of the recovery effort, has frequently faced angry questions at town hall meetings about these problems. In recent weeks, a coalition of fire victims and local elected officials has called for her to be replaced as head of the claims office.

In a news release announcing Gladwell’s departure, claims office spokesperson Deborah Martinez said she “successfully built a compensation program from the ground, assembling a team of locally hired staff with knowledge of New Mexico and the communities affected by the wildfires.”

Now, she said, Gladwell will “transition to a new role” as FEMA consolidates recovery programs in New Mexico, including the claims office, into a single operation.

Martinez did not answer questions about what that consolidation entails, except to say in an email that the office is “in the beginning stages” of the change.

In a statement posted to LinkedIn, Gladwell reflected on her “last day in New Mexico with an extraordinary team who is delivering on an extremely challenging mission.” She said she was “grateful for what we have learned that will continue to inform approaches to disaster recovery in the future, especially for wildfires and rural communities.”

Jennifer Carbajal, deputy director of the claims office and a resident of the area, spoke at a packed town hall meeting Wednesday night in Las Vegas, New Mexico. She said the agency had acted as quickly as it could to hire staff, open offices and establish procedures. The consolidation decision, which was “brand new,” will combine the claims office with FEMA’s short-term disaster aid programs, she said.

FEMA will soon hire a chief operating officer to lead “on-the-ground long-term” recovery efforts as the office focuses on making payments, Martinez said in the news release.

The office will soon publish a guide outlining the types of claims that are being paid and what documentation is needed, Martinez said. The agency recently acknowledged that the paperwork burden is too high for some claimants. It’s common among multigenerational families with long roots in the area not to have clear titles to their land or other documentation proving ownership.

The Coalition for Fire Fund Fairness, a group that includes local elected officials, and attorneys for thousands of victims have called for Gladwell to be replaced by someone who they said better understands New Mexico’s culture and laws, like a former judge. The group’s founder, Manny Crespín Jr., called FEMA’s announcement “welcomed news” and asked that the new leader not be “another FEMA bureaucrat.”

The federal law creating the claims office allows FEMA to appoint an independent administrator to oversee it. Instead, the office brought in Gladwell, a FEMA employee for more than 25 years in Washington, D.C. Martinez did not respond to a question about how FEMA will select the chief operating officer, including whether they will be from New Mexico or will be hired from within the claims office.

U.S. Sens. Ben Ray Luján and Martin Heinrich and Rep. Teresa Leger Fernández, Democratic members of New Mexico’s congressional delegation, said in a written statement that they hope the changes will speed up claims payments. Recently, the community of Las Vegas mourned a former police chief who died while awaiting a check to rebuild his home in Rociada, one of the hardest-hit areas.

The claims office faces several lawsuits accusing it of missing legally required deadlines to make payment offers and pushing victims to abandon their attorneys. FEMA has denied it puts such pressure on victims. It said it discovered a flaw in its reporting system that allowed some cases to languish, and it was addressing the issue.

Antonia Roybal-Mack, a local lawyer representing hundreds of clients, credited ongoing advocacy by lawyers and residents, and reporting by Source New Mexico and ProPublica, in bringing about the change. She said she’ll watch closely to see who takes over the new office.

“I think it’s a step in the right direction,” she said. “People in northern New Mexico — we need to now ask them to put a New Mexican in that position.”

by Patrick Lohmann, Source New Mexico

DOJ Blasts Law Enforcement’s Uvalde Shooting Response in New Report, Calls for Agencies to Prioritize Training

1 year 3 months ago

This article is co-published with The Texas Tribune, a nonprofit, nonpartisan local newsroom that informs and engages with Texans. Sign up for The Brief Weekly to get up to speed on their essential coverage of Texas issues.

UVALDE, Texas — Law enforcement agencies across the country should immediately prioritize active shooter training, U.S. Attorney General Merrick Garland said Thursday as he released a scathing report about the handling of the 2022 massacre in Uvalde, Texas, in which lives could have been saved if training protocols had been followed.

The Justice Department’s long-anticipated report about the shooting found that “cascading failures of leadership, decision-making, tactics, policy and training” led to the bungled response, which Garland said should never have happened. Nineteen children and two teachers were killed on May 24, 2022.

“Had law enforcement agencies followed generally accepted practices in an active shooter situation and gone right after the shooter to stop him, lives would have been saved and people would have survived,” Garland said during a news conference on Thursday.

The report’s findings about the failure to follow protocol and the lack of sufficient training to prepare officers for a mass shooting largely mirrored the flaws revealed in a Texas Tribune, ProPublica and FRONTLINE investigation published last month that found that states require students and teachers to receive far more training to prepare them for a mass shooting than they require for the police. At least 37 states require schools to conduct active-shooter-related drills, nearly all on an annual basis. But Texas is the only state that mandates that all of its police officers complete repeated training, at least 16 hours every two years. That requirement was implemented after the Uvalde shooting.

Garland said the report was produced in an effort to offer lessons that would hopefully better prepare law enforcement across the country to respond to future mass shootings. It offered recommendations that included requiring all agencies in a region to train together and providing officers across the country with at least eight hours of active shooter training annually.

The vast majority of at least 380 officers from about two dozen local, state and federal agencies who responded to the school had never trained together, “contributing to difficulties in coordination and communication,” the report stated.

“Our children deserve better than to grow up in a country where an 18-year-old has easy access to a weapon that belongs on the battlefield, not in a classroom,” Garland said. “And communities across the country, and the law enforcement officers who protect them, deserve better than to be forced to respond to one horrific mass shooting after another. But that is the terrible reality that we face. And so it is the reality that every law enforcement agency in every community across the country must be prepared for.”

Mo Canady, executive director of the National Association of School Resource Officers, said in an interview that he appreciates the emphasis the Department of Justice placed on widespread active-shooter training. Still, Canady said he is frustrated that leaders have not already learned that “25-year-old lesson” after the shootings at Columbine High, Sandy Hook Elementary and Marjory Stoneman Douglas High School.

Since the 1999 Columbine shooting, law enforcement officers have been trained to prioritize stopping the shooter. The report stated that everything else, including officer safety, should be secondary, adding that efforts to engage the shooter “must be undertaken regardless of the equipment and personnel available.”

“We’ve got to understand what the priorities are and, quite frankly, I see there are not a lot of priorities greater than keeping students safe at school,” Canady said.

Kimberly Mata-Rubio, whose 10-year-old daughter Lexi was killed in the shooting, said she hopes the report’s findings lead to action, that “the failures end today and that local officials do what wasn’t done that day, do right by the victims and survivors of Robb Elementary: terminations, criminal prosecutions and that our state and federal government enacts sensible gun laws.”

Kimberly Mata-Rubio, mother of Alexandria Rubio, one of the children killed in Uvalde, speaks to the media after DOJ officials detailed failures in the law enforcement response to the 2022 school shooting. (Chris Stokes for The Texas Tribune)

Garland directed questions about whether any officers who responded to the shooting would be criminally charged to the local district attorney, saying that was not within the jurisdiction of the federal government. Uvalde District Attorney Christina Mitchell initially planned to present her case to a grand jury in late 2023 but later told the Associated Press that her investigation would continue into this year. Mitchell said in a statement Wednesday that her office “will continue our independent review for any potential criminal charges.”

The district attorney and the Texas Department of Public Safety have fought the release of records related to the shooting, prompting news organizations, including ProPublica and the Tribune, to sue. A Travis County district judge ruled in the newsrooms’ favor last month, but DPS appealed. The agency did not respond to requests for comment about the Justice Department’s report.

Texas Gov. Greg Abbott, who initially praised the response and later said he was misled, released a statement thanking the Justice Department. He said the state has already adopted some of the recommended measures and would review others.

The report, which offers the most comprehensive account to date from authorities about the shooting, echoes many findings from a probe released by a state House committee two months after the shooting.

In presenting the new report’s findings, Associate Attorney General Vanita Gupta criticized initial misinformation and conflicting accounts provided by officials, including Abbott and DPS.

The report noted that the “misguided and misleading narratives, leaks, and lack of communication about what happened on May 24 is unprecedented and has had an extensive, negative impact on the mental health and recovery of the family members and other victims, as well as the entire community of Uvalde.”

The previous mayor of Uvalde requested the federal review days after the shooting when it became clear that the response was flawed. The review was led in part by Sheriff John Mina of Orange County, Florida, who was the incident commander during the 2016 Pulse Nightclub massacre in Orlando.

An outside review of that incident found that Florida officers, who waited three hours to take down the shooter, mostly followed best practices, although it stated that the law enforcement agencies in Orlando should update their training and policies.

In multiple after-action reviews, including the Pulse report, authors opted not to criticize significant law enforcement delays during mass shootings, according to an analysis of more than three dozen of these reports by ProPublica, the Tribune and FRONTLINE.

Associate Attorney General Vanita Gupta criticized the conflicting reports given by officials in her remarks at a press conference discussing the DOJ report on the law enforcement response to the 2022 school shooting in Uvalde. (Chris Stokes for The Texas Tribune)

The Uvalde report was far more critical, finding failures in leadership, command and coordination.

It stated that officers wrongly treated the situation as a barricaded suspect incident instead of one in which a shooter was an active threat to children and teachers. Officers should “never” treat an active shooter with access to victims as a barricaded suspect — especially in a school, where there is a “high probability” of potential victims and innocent civilians being present, the report stated.

Officers had multiple indicators that should have made it clear they were facing an active shooter, including 911 calls from children and teachers pleading for help, a dispatcher’s announcement minutes after officers arrived that students were likely in the classroom with the shooter, and an Uvalde school police officer announcing that his wife had called to tell him she had been shot, according to the report.

Gupta condemned the medical response, saying that after police breached the classroom and killed the gunman, dead victims were placed in ambulances while children with bullet wounds were put on school buses. Many of those findings were revealed in a 2022 investigation by the Tribune, ProPublica and The Washington Post that determined medical responders did not know who was in charge and that two students and a teacher who later died still had a pulse when they were rescued from the school.

In its blistering criticism of responding officers, the report said that supervisors from various law enforcement agencies “demonstrated no urgency” in taking control of the incident, which exacerbated communication problems and added to overall confusion.

Uvalde school district Police Chief Pete Arredondo, who was listed as the incident commander in the district’s active-shooter plan, had the “necessary authority, training and tools” to lead the response but did not provide “appropriate leadership, command and control,” the report found. Arredondo could not be reached for comment Thursday through his attorney. He has previously defended his actions and those of others involved in the response.

Beyond that, no leader from any of the other responding agencies “effectively questioned the decisions and lack of urgency” demonstrated by Arredondo and Uvalde Police Department Acting Chief Mariano Pargas, who both arrived at the school within minutes of the first round of gunfire. The report listed Uvalde County Sheriff Ruben Nolasco, Uvalde County Constables Emmanuel Zamora and Johnny Field, and an unidentified Texas Ranger as examples of such leaders.

“Responding officers here in Uvalde, who also lost loved ones and who still bear the emotional scars of that day, deserved the kind of leadership and training that would have prepared them to do the work that was required,” Garland said.

The report also found that key officers, including Pargas, had no active shooter or incident command training despite, in some instances, having decades of law enforcement experience. Nolasco, the sheriff, also had no active shooter training and “minimal” incident command training.

Law enforcement training academies must ensure that active shooter training instructs officers on how to distinguish between active threats and barricaded or hostage situations, the report said. Officers should be prepared to approach the threat using the tools they have with them, which are often standard firearms. They should not wait for specialized equipment or tactical teams if they know that people are injured, the report stated.

The Tribune reported early last year that some officers were afraid to confront the gunman because he had an AR-15 rifle.

“No law enforcement agency or community can assume that what happened here — or in Newtown or in Parkland or in Columbine — can’t happen in their community,” Gupta said. “That is our reality.”

Texas Tribune reporters William Melhado and Pooja Salhotra contributed reporting.

by Lomi Kriel, ProPublica and The Texas Tribune, Alejandro Serrano, The Texas Tribune, and Lexi Churchill, ProPublica and The Texas Tribune

When Families Need Housing, Georgia Will Pay for Foster Care Rather Than Provide Assistance

1 year 3 months ago

This article was produced for ProPublica’s Local Reporting Network in partnership with WABE. Sign up for Dispatches to get stories like this one as soon as they are published.

Brittany Wise ran through the options in her head.

It was a sunny April morning in Cobb County, Georgia, a suburban area northwest of Atlanta. Wise was heading back to the cul-de-sac of budget motels where her family was staying after receiving an eviction notice from her landlord in January when the blue lights appeared in her Chevy Tahoe’s rearview mirror.

The police officer had stopped Wise for an expired tag. But when he looked up her name, he discovered a bench warrant for a traffic ticket she hadn’t paid. She remembers that the officer was kind and gave her a warning about her tag. For her warrant, however, he told her that she had to go to jail.

Wise’s mind went to her children. Six of them were there in the SUV. The other two were walking up to the motel parking lot. In all, they ranged in age from 4 to 18. Wise, a 35-year-old single mother, had to figure out where they all would go.

Wise didn’t have any other family members nearby. She knew she could leave her children in the care of her oldest daughter. But one has autism and another has severe behavioral issues, which would be too much to put on a teenager, she thought.

So Wise asked the officer to contact the Georgia Division of Family and Children Services. She hoped that the agency could care for her children just for as long as she had to be in jail — which turned out to be three days.

When Wise got out of jail, however, DFCS didn’t return her children. The reason, according to court documents and the case plan the agency gave her, was that she lacked stable housing and income for her kids.

In recent years, child welfare advocates and policymakers across the country have been working to prevent situations like this, arguing that no parent should ever lose their children just because they can’t afford housing. A handful of states now have laws and policies prohibiting government agencies from taking children into foster care because of homelessness. Georgia has not adopted such a rule, but the state Court of Appeals has ruled a number of times that unstable housing and employment “in no way constitutes intentional or unintentional misconduct resulting in abuse or neglect” that would justify child removals.

But Wise’s experience illustrates how an inability to afford housing still stands between parents and their children in many child welfare cases in Georgia.

Between fiscal years 2018 and 2022, DFCS reported “inadequate housing” as the sole reason for removing a child in more than 700 cases, according to an analysis by WABE and ProPublica.

The analysis, using data from the federal Adoption and Foster Care Analysis and Reporting System, which tracks child removal cases in each state, also shows that in thousands of additional cases — about 20% of Georgia’s nearly 31,000 child removals during the five-year period — DFCS reported housing as one of multiple reasons. Housing was the third most reported reason after substance use and neglect.

Wise’s case is not included in the analysis because it began in April 2023.

When Georgia removes children for housing — either as the sole reason or in conjunction with other issues — it becomes something that parents must fix in order to regain custody of their children. Child welfare advocates and attorneys say that’s a uniquely difficult barrier to overcome. When families are facing other issues, such as a parent’s drug addiction or untreated mental health condition, DFCS often steps in and provides remedial services. But the agency rarely provides families with housing assistance.

According to a review of agency spending records for the same five-year period, DFCS spent more than $450 million on programs that can be used to keep families together. But the agency directed only a tiny portion — less than half of 1% — of the money toward housing assistance.

DFCS’ spending on housing assistance is noticeably smaller than in some other states. Several child welfare agencies, even in states with smaller populations than Georgia, dedicate millions of dollars more each year toward housing assistance.

Child welfare advocates say it doesn’t make sense for DFCS to do so little to help families with housing, given that the agency can end up spending just as much or more after taking children into foster care.

DFCS spends a minimum of $830 to $980 a month to house a child in foster care, according to the state’s published daily rates for foster parents. That’s roughly equivalent to the monthly fair market rate to rent a one-bedroom apartment in most of Georgia outside of metro Atlanta, according to the U.S. Department of Housing and Urban Development’s estimates.

The cost for foster care can be significantly higher if a child has complex mental health or behavioral needs, as some of Wise’s kids do. Under the state’s current rates, specialized foster care for a single child in an institution or group home can reach $6,390 a month.

Josh Gupta-Kagan, who directs the Family Defense Clinic at Columbia Law School, said it’s baffling that DFCS would not provide housing assistance instead of removing children. “Why do we allow kids to be separated from their parents who we won’t help with housing — only to place them with strangers who we will help with housing?” he asked.

DFCS spokesperson Kylie Winton said the agency does refer families to outside resources provided by local nonprofits or other state agencies, in addition to the small amount of assistance DFCS offers directly.

But according to Winton, more housing assistance would not change the outcome for many families. When the state takes children into foster care, she said, housing often is not the sole — or even primary — reason. Most of the time, she said, another issue is driving the intervention.

“If a family is chronically unhoused and a connection to a community resource doesn’t resolve it, we typically find that there is a root cause issue, such as untreated mental health concerns or substance abuse,” Winton said in an email.

Citing confidentiality laws, Winton declined to comment on Wise’s case, even after WABE and ProPublica provided a waiver, signed by Wise, giving permission to the agency to discuss it. In Wise’s case plan, however, it did not list any serious underlying issues, beyond unstable housing and income, that explained why the court didn’t return her children.

Wise couldn’t understand how housing could be a justification in any case — but especially hers. That’s because the day of the traffic stop was not the first time she called DFCS. Months earlier, while she was trying to stave off her family’s eviction, she had reached out to the agency for housing assistance to maintain their stability — with no success.

As she confronted the loss of her children, Wise sat, with a scrunched-up tissue in her hand, alongside the advocate she met through that process, Sarah Winograd, who works to help parents avoid the foster care system, and explained what took place.

“I cried, I yelled, I prayed, I screamed,” Wise said. “Like, how did we get here?”

Wise shows a photo of her children. (Matthew Pearson/WABE)

As a single mother of a large family, Wise had faced financial challenges before. In North Carolina, where she’s from, she occasionally had to call assistance programs or relatives when she couldn’t work or when bills left her without enough money for food. Still, she always had the necessities covered for her close-knit family, according to her oldest daughter, Halle Mickel, who’s now 19. “She did that and more,” Mickel said.

As for their housing, Wise rarely had to worry because for several years she’d received a federal housing voucher through a North Carolina agency.

It was only when Wise left the state in 2021, to get away from an abusive relationship, that housing became a serious issue for her family. She didn’t realize how hard it would be for her to find a place that would accept a family the size of hers in Georgia. Her voucher program gave her a limited amount of time to locate housing in the new state, and she exceeded that, causing her to lose her long-term assistance.

When Wise finally did find a four-bedroom townhome in Cobb County, it wasn’t cheap.

Wise paid the $2,200 a month at first with rental assistance through a local nonprofit. When that ran out, she tried to manage the amount on her own. She received roughly $1,800 in disability payments for her daughter with autism and for Mickel, who had survived cancer as a teenager, and supplemented that by working at a fast food restaurant and selling home-baked desserts at car washes and barber shops. “I did the best I could,” she said.

But Wise couldn’t keep it up. The school suspended her daughter with autism and her son with behavioral issues multiple times, and Wise lost work to watch them. Her rent payments became out of reach.

When the eviction notice came in January, Wise had already contacted all of the assistance programs she could find. All of them told her they were out of funds. So she turned to her last resort. “I picked up the phone and called DFCS because I thought they would be a resource for my family,” she said.

To Wise’s surprise, DFCS responded by opening an investigation. A caseworker came to the apartment, looked in her fridge, interviewed her kids and took samples of Wise’s hair and urine for a drug test. Wise didn’t have her case files from DFCS at the time, but, according to texts from her caseworker that Wise shared with WABE and ProPublica, the agency didn’t find anything worth pursuing. “There’s no concerns on our end,” the caseworker wrote to Wise in February.

As for Wise’s need for housing assistance — the reason she called DFCS in the first place — the caseworker said there wasn’t much that she could offer. She texted Wise information about different nonprofits, along with the number for Winograd, who’s now co-founded a nonprofit called Together With Families. But as far as what DFCS could do, she was clear: “The issue is funding. DFCS isn’t provided with government funding to house families,” the caseworker told Wise in a text.

Only one of DFCS’ family preservation programs, called Prevention of Unnecessary Placement, describes an option to help families with their rent, utilities or mortgage. The analysis of agency spending records shows that DFCS spent just $278,000 on housing assistance under this program in 2022. No other state agency in Georgia offers housing assistance specifically to families in the child welfare system.

By contrast, child welfare agencies in several states have spent significantly more on programs aimed at preserving families whose children are at risk of being removed or who are having trouble getting reunited because of housing. In 2022, New Jersey, which has a population similar in size to Georgia’s, dedicated more than $17 million for its program. Connecticut, with less than half the population, spent close to $20 million. California, which has four times greater population than Georgia, allocated exponentially more: nearly $100 million.

The New Jersey Department of Children and Families effort has served around 1,000 families, according to Assistant Director of Housing Kerry-Anne Henry. The agency has seen 90% of the families in its program stay housed after two years, she said.

“If we are really taking our charge seriously, as a child and family serving system,” Henry said, “we have to be responsive to their needs.”

Some child welfare agencies have also partnered with their states’ housing agencies to provide federal vouchers to families in their systems. The Family Unification Program from HUD offers vouchers for this purpose. According to HUD's data, Washington state, which has a population smaller than Georgia’s, has claimed around 2,000 vouchers. Ohio and neighboring North Carolina, which have populations similar in size to Georgia’s, have more than 900 each.

Georgia, on the other hand, has received 530. Only a handful of city and county housing authorities have claimed the vouchers — but Cobb County, where Wise lived, is not among them. DFCS has not worked with the state housing agency, called the Department of Community Affairs, to apply for the vouchers.

Philip Gilman, deputy commissioner for housing assistance and development, said in a statement that the department didn’t have staff capacity to handle these vouchers. For her part, Winton, the DFCS spokesperson, said the agency is reviewing the possibility of applying in the future.

Meanwhile, Winton said DFCS is working on a housing-focused effort of its own. As part of a pilot program in Fulton County, which includes Atlanta, the state awarded a nonprofit $1 million to house 50 families over the course of the next year so parents can reunite with their children or remain with their children who may be at risk of entering foster care.

But child welfare advocates, like Ruth White of the Maryland-based National Center for Housing and Child Welfare, said DFCS shouldn’t be limiting housing assistance to a few dozen families. If the state is ever intervening because of housing, she said, the agency has a duty to help. “They should be serving every family that needs to be housed,” she said.

For Wise’s family, in the weeks leading up to the traffic stop in April, there were no other housing options. By the time she reached Winograd, Wise owed around $10,000 in rent and utility bills. The only plan Winograd could propose was for her organization to pay to relocate her family to Florida, where Wise’s grandmother lived — an arrangement DFCS accepted.

While Wise also agreed, she knew it couldn’t be a long-term solution. Her grandmother was in her 70s. Wise knew she couldn’t bring a family of nine into her home permanently.

Believing she could find a more sustainable solution on her own, Wise brought her family back to Cobb County a couple of weeks later. They paid daily for a hotel as she continued her search for housing assistance. She didn’t imagine that in another couple weeks she would have to call DFCS again — this time, because of a traffic stop — to get her kids.

Wise’s caseworker had told her that DFCS didn’t make housing assistance available to families, like hers, because that was not the agency’s job. “Technically,” the caseworker had texted her in March, “the DFCS agency is only responsible for the safety of children/housing children.”

Since the traffic stop that sent seven of Wise’s children to foster care, DFCS has paid for their housing. The cost of housing them has quickly exceeded the amount of her family’s overdue rent.

DFCS has been paying at least $6,200 a month. That estimate is based on the rates for foster parents set by the state and is the minimum possible amount required to cover seven children in their age range — not including any special subsidies for the two with additional behavioral needs.

The estimate doesn’t account for the administrative costs of paying case managers to visit the children in their foster homes, as they’re required to do in all cases. It also doesn’t cover the costs of transporters who take the children to and from court-ordered visitations, which could amount to hours of driving time.

While some of these expenses may be covered by federal funds, longtime parent attorney Amber Walden said she still has seen foster care costs add up to much more than the price of housing in many of the cases that she has handled over the years.

“How much money are we talking about with that — when you could just have them all in the same home with the parent?” Walden said.

As DFCS made these payments to foster care providers, the result has not only been that Wise was in a separate home from her children. They also have been in separate foster homes from one another.

Wise saw the effects of these disruptions on her children. One afternoon, as she was about to leave the county DFCS office after a meeting with staff, Wise learned her two sons were in the building. Although she was able to have an impromptu visit, that wasn’t the reason her sons were there — they had been fighting with their foster parents, Wise said the caseworker told her.

The caseworker brought the boys into the office while she figured out their next placement, Wise said. One was the son who already had behavioral issues. He had turned 9 in the month since he and her other children entered foster care. She had already told him that they’d have a celebration when they were all back home. As he played with toys in the DFCS office, she said he reminded her: “Mom, are we still gonna have my birthday? Are we still gonna get a cake?”

Wise reacts to the news that her two sons were being moved into a new foster placement after fighting with their foster parents. (Stephannie Stokes/WABE)

Wise hung her head and rubbed the tears in her eyes as she walked out of the office. “It just makes me sad because I didn’t mean for them to go and be tossed around,” she said, “to go through all of this.”

Wise said she later learned from her caseworker that her sons had to spend that night in the DFCS office because the agency still could not identify a new placement for them.

In recent years, DFCS has frequently resorted to placing children in need of specialized care in offices and hotels — at an average cost of $1,500 a night, according to January 2023 testimony to the state legislature by DFCS Director Candice Broce. The costs, totaling more than $77 million between 2018 and 2022, have sparked hearings at the state Capitol. But state legislators charged with reviewing Georgia’s system have not proposed new prevention funding for families, including for their housing.

The need is clear to people who have worked for the agency, like Nikita Raper, who resigned this past summer after two years with Cobb County DFCS.

Raper said so much of her job as a child abuse investigator was scrambling to find housing resources for families, who were sleeping in their cars, staying in homeless encampments or getting kicked out of their hotels. All the time spent on these cases distracted caseworkers, like her, from instances of actual abuse, she said.

“More funding for the housing cases would offer relief to families and take them off the radar of DFCS so that we could focus on the bigger cases,” she said.

When she was with DFCS, Raper could access the Prevention of Unnecessary Placement program funds only if she could demonstrate the family wouldn’t need help again. “It’s really difficult to show that,” she said.

According to WABE and ProPublica’s spending analysis, Cobb County did not approve this funding for housing even once in the fiscal years 2021 and 2022. Wise said she never even heard about the program from her caseworker.

Living on her own, Wise has struggled even more to secure housing and employment that would comply with the requirements of DFCS and the judge in her case. When she was in contact with the agency in January, her caseworker referred her to any resources that would provide her family with basic shelter. But once her children were in foster care and her case was before the court, DFCS and the judge wanted her to show housing and income that were “stable.”

“The court finds these children have lived in unstable living environments long enough,” the order from late April said.

But DFCS has no statewide definition of stable housing. The agency said that’s because the meaning depends on the details of each individual case. Attorneys who work on Georgia child welfare cases in half a dozen counties said DFCS regularly requests that parents maintain a lease for six months before returning their kids.

This standard shows up even in cases where housing wasn’t initially a driving factor, said Darice Good, who has represented parents in Georgia for 20 years. “They won’t send the children home if there’s not stable housing,” she said.

Wise tried to fight the court’s requirement in her case. Right after she got out of jail in mid-April, she managed to obtain a spot at a homeless shelter for families, along with her daughter, Mickel, and she believed DFCS had no reason to not return her children there.

“I have no history of drugs & alcohol abuse, endangerment, physical, mental or emotional abuse I have caused on my family,” Wise wrote in her notebook to prepare for a virtual call with DFCS at the beginning of May. “I kept us safe!”

But Wise’s effort didn’t get her very far. In the call, which she recorded and shared with WABE and ProPublica, the facilitator said it was the judge’s decision to keep her children in foster care. Wise pushed back, asserting that the judge was acting on DFCS’ recommendation. The two were soon talking over each other for several minutes until the facilitator hung up.

Throughout this time, Wise was also working to get permanent housing. Winograd could finally identify a nonprofit that could pay back the rent at Wise’s old townhome. Wise was even able to move back in — but only temporarily. Right when the nonprofit was supposed to cut the check, it told Wise that it was reversing its decision: Upon further review, an email said, she didn’t meet the criteria for the funding program — including the ability to show that she could maintain her rent after she was caught up.

So, in mid-summer, Wise stayed with Mickel, who managed to get housing through a program for young adults. Wise found jobs, but they only paid around $10 to $15 an hour, and a couple of times she had to call out as soon as she was hired in order to make court hearings and visitations with her kids. She also found herself so concerned about her children that it was hard to work.

Wise soon found it was difficult to hold a job because she was so concerned about her children in foster care. (Stephannie Stokes/WABE)

“Who can really function or focus in a situation where everything around you is on fire?” Wise said.

Winograd, who volunteered as an advocate for foster children before she started her work preserving families, said this is common among parents who have to prove stability to the child welfare system. “People might think, ‘OK, now, they don’t have the responsibility of their children, they don’t have to worry about child care, they don’t have to worry about doctors’ appointments,’” she said.

In reality, Winograd said, many parents struggle even more. “The mental health piece becomes a huge issue for them to be able to go and get stable because they’re so worried about their child,” she said.

Wise has since located transitional housing in North Georgia. She has also found the support of another nonprofit, which has offered rental assistance to help her obtain housing and stabilize her family. But the nonprofit will provide the rental assistance only if the court first agrees to return her kids — and the court has not made such an agreement.

Meanwhile, Wise’s children have now spent nine months in foster care. She still finds herself trying to make sense of the reason.

How is it “that we had to endure all of this catastrophe and chaos and trial and trauma, just because I couldn’t pay a couple of months of rent?” she said.

How We Analyzed the Effect Housing Has on Children Being Placed in Foster Care

We analyzed data from the Adoption and Foster Care Analysis and Reporting System to examine the reasons Georgia’s child welfare agency reported for taking children into foster care.

The AFCARS data, obtained from the U.S. Department of Health and Human Services’ National Data Archive on Child Abuse and Neglect, required steps to clean and deduplicate before we could analyze it. We used unique identifiers for children called AFCARS IDs and dates when a child was last taken into foster care to remove duplicates. We then filtered the dataset to removals that occurred from July 1, 2017, to June 30, 2022, corresponding to Georgia’s 2018 to 2022 fiscal years. We then grouped by removal reason and counted the number of removals in which housing was reported, both alone and in combination with other removal reasons, and compared that to the total number of removals during the same period.

We chose not to compare the percentage of housing-related removals with other states because there are wide variations in how states report the reasons for taking children into foster care. In limiting the analysis to Georgia, our analysis was not affected by those differences.

The data used in this story was obtained from NDACAN via Cornell University and used in accordance with a terms of use agreement license. The Administration on Children, Youth and Families; the Children’s Bureau; the original dataset collection personnel or funding source; NDACAN; Cornell University; and their agents or employees bear no responsibility for the analyses or interpretations presented here.

by Stephannie Stokes, WABE; Data analysis by Agnel Philip, ProPublica

The Failed Promise of Independent Election Mapmaking

1 year 3 months ago

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published.

Washington state’s mapmakers had been working for almost a year to draw the lines that would shape the state’s elections for the next decade. Now they had five hours until the midnight deadline and they’d made little progress.

Promptly at 7 p.m. on Nov. 15, 2021, the five members of the state’s Redistricting Commission appeared in a public Zoom meeting. Chair Sarah Augustine, a nonvoting member, sat near an ice machine in front of a backdrop with the commission’s new logo, “Draw Your WA.” She called the roll and ratified the minutes. The commissioners appeared on screens, seemingly calling in from different locations. Augustine immediately announced that they wanted to caucus privately. She promised that staff would reappear about every 30 minutes to give updates. A sign announcing “Meeting on Break” flashed up.

In most states, lawmakers draw new districts every 10 years to accommodate changes in population and ethnic makeup. They’re usually exercises of raw political power allowing lawmakers to, in essence, choose their voters instead of the other way around. But in Washington, an independent panel of commissioners has long revised the maps to avoid the common pitfalls of such redistricting, which often disenfranchises people of color or results in gerrymandering.

This year, Augustine’s master’s degree in conflict resolution was failing her. The commission’s work had devolved into a partisan mess, the very thing it had been created to avoid. The two Democratic commissioners and their two Republican counterparts had fought over how to address complaints from the state’s growing Latino population that it didn’t have representation. As they tried to work out a deal, they were repeatedly distracted by lawmakers and at least one lobbyist who had gotten wind of the final meeting and wanted to weigh in.

In a desperate move, the commission opted for a charade, with the public Zoom as its cover. In reality, the four voting commissioners were secretly hashing out the maps in person at a Hampton Inn a healthy 40 miles outside the capital, Olympia. It was a violation of the rules for more than two members to negotiate in private. One commissioner balked and rented a room in a Marriott a short distance away.

Throughout the process, the members of this ostensibly independent body were consulting with their party leaders and state and national political operatives, and were relying on partisan funding. Throughout the night, a cadre of lawmakers continued to pepper the commissioners with requests as picayune as moving one constituent’s house into a different district.

Every half-hour, a staffer briefly came on camera to inform viewers that caucuses continued. An interpreter even signed for deaf viewers. No member of the public ever saw any maps they could comment on, however. Then the break notice would go up again. As one commissioner later joked to another, the spectacle was “the screenplay to a movie no one would want to watch.”

The commissioners blew past their midnight deadline as they scrambled to reach deals and haggled over the “price” of Latino representation. The two Democrats finally capitulated to Republican demands, allowing a map that they felt didn’t give Latinos enough representation. They hadn’t been able to finish the job but hoped the courts would resolve the issue.

The independent commission’s work had been a disaster. A federal judge threw out the map in August 2023 after determining it had discriminated against Latinos. The commissioners were fined for their public meeting deception.

It was an ignominious referendum on Washington’s redistricting model. As the nation grapples with ever-more-aggressive battles over access to voting, a review of what unfolded in Washington shows that independent commissions — still reformers’ best hope for fixing this problem nationwide — have not always succeeded in taking this central democratic function out of politicians’ hands.

While independent commissions usually make fairer maps than their legislative counterparts, all over the country some, like Washington, have stumbled. Several were not the bulwark against discrimination that supporters had hoped. In 2021, five states with independent commissions faced lawsuits over their maps. In New York, an independent commission bungled the job so badly that the state legislature stepped in to create new maps. Then a judge threw those maps out. The independent commission has been reconvened to create new congressional maps. Michigan’s new independent commission lost a federal lawsuit brought by Black voters in Detroit. A judicial panel has ordered the commission to redraw maps and the case is being appealed to the U.S. Supreme Court.

In Washington state, criticism of the commission’s work has been so intense that lawmakers decided not to reconvene the group to draw the new maps. Even good-government types have been aghast. Simone Leeper, a legal counsel for the nonpartisan Campaign Legal Center, which handles voting-rights cases and represented Latino plaintiffs in Washington, says, “Going about this in this secretive way to trade away the rights of individuals is abhorrent to the concept of these commissions and what they're intended to do.”

A Pioneering Reform

Washington was the third state in the nation to set up an independent commission. State voters approved it by constitutional amendment in 1983 after the Legislature, then led by Republicans, passed a redistricting plan that was found to be discriminatory by a federal court, which ordered new maps to be drawn.

Through several redistricting cycles, Washington’s commission worked smoothly, praised as a national model for how to fix the process of drawing lines for congressional and state legislative districts. The commission’s enabling legislation prohibited gerrymandering, or drawing lines to favor one party or undermine the voting power of a demographic group. Commission members could meet with lawmakers individually to hear specific requests, but public input was paramount since every voter had a stake in how the lines were drawn.

Today, 22 states have some type of independent commission to handle map-drawing, according to the Brennan Center for Justice at New York University School of Law.

Washington’s model is known as a bipartisan commission, which purports to be independent. But legislators still play a significant role. House and Senate majority and minority leaders choose four commission members by political affiliation, with one nonvoting member put in place to mediate. Liaisons for both political parties are assigned to monitor the commission and report back to caucuses. The commission gets around $2 million for staffing and expenses, but state political parties sometimes step in to cover expenses for studies or other activities that have a partisan slant.

The start of this redistricting cycle was dogged by controversy. Members chosen for the 2021 Washington commission had strong legislative ties. Republicans Joe Fain and Paul Graves and Democrat Brady Piñero Walkinshaw were former lawmakers. Democrat April Sims was an executive with the Washington State Labor Council, chosen by House Speaker Laurie Jinkins to represent the House Democratic caucus. Augustine, the nonvoting member, was chosen by the other members.

This commission began in rancor. Fain, a former senator from King County, had lost his 2018 reelection bid after a former Seattle city official publicly accused him of sexual assault. Fain denied the allegation, and the woman declined to press charges. But Walkinshaw and Sims sided with protestors and called, unsuccessfully, for Fain to resign. Fain did not respond to repeated requests for comment.

From the start, the commissioners faced pressure from the surging Latino population, which had grown by 14% since 2010 but still struggled to elect members of the House of Representatives. The growth had been particularly intense in the Yakima Valley agricultural region east of the Cascade Mountains, where the population includes many immigrant laborers from Mexico and South Texas.

The Yakima Valley farming region stretches for 80 miles and includes five counties, with three reporting majority Latino populations. Some small farming towns reported that as much as 80% of the population is Hispanic, according to UCLA Voting Rights Project founder Matt Barreto, who conducted an analysis of voting in the area.

Yet white Republicans for years had dominated political offices in the area, and Latinos complained they had been penalized by decades of “cracking,” a redistricting term that means splitting up communities to diminish their power. The valley’s Latino population was carved into three House districts that Latinos had little chance of winning.

Spanish-speaking voters won lawsuits against local governments to force changes, but little was done. “Time and time again, there have been findings and consent decrees, and other outcomes, that make clear that this community has persistently faced discrimination in voting,” said Campaign Legal Center’s Leeper.

In 2021, as the independent commission began its work, Latino activists were hopeful. Supporters of more representation testified at virtual public meetings. “There were so many voices,” said Susan Soto Palmer, an advocate and unsuccessful candidate for state and county office. At the public meetings, she described taunts she faced in Yakima from white voters when campaigning and the inadequate services for her community.

Susan Soto Palmer advocates for Latino voters in Washington state, who have been split up into multiple voting districts. (Amanda Lucier for ProPublica)

The commission had been briefed by the attorney general’s office about the federal Voting Rights Act, which required that it draw election maps that give Latino populations the opportunity to elect candidates of their choice.

Commission Democrats advised getting an expert analysis of the area’s voting patterns. But the two Republicans protested the hiring of UCLA expert Barreto because he had strong ties to national Democratic Party entities.

Senate Democrats paid for Barreto’s analysis. He concluded that the state must create at least one, possibly two, districts in the Yakima Valley with substantial Latino populations. The VRA requires that when a racial or ethnic group makes up a significant percentage of the electorate, the group should be able to elect candidates of its choice. Such a district is called a “performing” one. While that doesn’t always mean that the group needs to be a majority in a district, in this case, Barreto determined that a new district needed to have a Latino voting-age population of around 60%. Both Democratic commissioners proposed maps with a Yakima Valley district that had a greater than 60% Latino voting-age population.

The Republicans resisted such a proposal. They offered maps that were bare-majority Latino, giving the GOP a greater chance of winning the seat. Barreto said these proposals still cracked Hispanic voters.

Fain and Graves turned to the state GOP to pay a Seattle law firm, which produced a legal brief justifying a more conservative-friendly map. The lawyers urged them to avoid drawing a new district solely on the basis of race. In recent years, conservative legal experts have begun to argue that the 14th Amendment’s equal protection clause means that mapmakers cannot take race into account when drawing districts. The amendment supersedes the Voting Rights Act, they argue. The firm warned that the commission could face a lawsuit that claimed the map discriminated against non-Latino voters.

Jinkins, the House speaker, told ProPublica, “While the Washington approach has generally worked well for us, I’m always interested to understand what other states have learned and consider incorporating changes that make sense for Washington.” One model is California, which has been praised for creating a large commission with so many guardrails against legislative influence that it is now considered the gold standard.

“Meeting on Break”

The commission’s November Zoom call made for excruciating video. The “Meeting on Break” sign stayed up for hours. Every so often, Augustine came on camera to report that private discussions continued. Staffers killed time with card games. Occasionally, a commissioner surfaced to cryptically describe what was happening behind closed doors.

Graves, one of the Republicans, looked bleary-eyed on camera, later revealing in a deposition that he had a three-month old at home and hadn’t slept for days. “I know it’s frustrating,” he told viewers.

In the days leading up to the Zoom, Graves had been driving a hard bargain behind the scenes, according to text messages and emails that surfaced later.

Graves and Fain texted on Nov. 7 about how they could extract a price from Democrats if the GOP agreed to their version of a 14th district. “If you had notes on the price for their 14, can you please send them to me?” Graves wrote Fain.

On Nov. 11, Graves emailed Democrat Sims to outline his latest “ever so slightly more Republican proposal” and to offer a brazen political trade. Republicans would give up some of their strength in the Yakima Valley, but only if Democrats would give them a more competitive district elsewhere.

“I will be interested to hear from you what you think is a fair price for this 14th,” Graves wrote Sims. Graves described to ProPublica his logic: He acknowledged his offer to Sims was “purely partisan,” but he said he and Sims had already agreed to draw a majority-Latino district and were fine-tuning.

“One of the requirements in our statute is that the plan cannot be drawn to purposely favor or discriminate against any political party. I was trying to avoid the kind of gerrymandering where one party gets substantially more representation than its pure votes would suggest,” he said.

He says he strongly supports independent commissions.

As they struggled to resolve the Yakima issue, commissioners kept getting distracted by lawmakers and lobbyists pushing their own agendas. Texts and emails from that evening and the days leading up to it, which were later produced in lawsuits, documented exchanges among commissioners and with legislators and special interests who were closely following the action.

The commission had no rules to limit ex parte communications. Attorneys in the lawsuits found that some records were never turned over. Sims, for example, acknowledged deleting some Nov. 15 texts that she considered personal.

That night, then-House Republican leader J.T. Wilcox texted with Graves, whom he had appointed. Graves said in a deposition that Wilcox had earlier passed along thoughts about how to shape his own district and “keep places … I have great affection for.”

That night, the two discussed a logjam that had developed between Fain and Walkinshaw, who were negotiating on congressional maps.

Graves told Wilcox that Walkinshaw was resisting a deal, but he still thought one was possible with a little strong-arming. Fain had “a lot of good contacts who can make Brady’s life very hard who want a deal.”

House Republican leader J.T. Wilcox texted with Paul Graves, a redistricting commissioner who Wilcox had appointed, throughout a last-minute meeting to try to finalize a deal. (Obtained by ProPublica)

Walkinshaw told ProPublica he found the messages puzzling since he and Fain shared no political connections. Wilcox and Graves described it in interviews as a flippant comment, fired off in the heat of the moment.

Graves exchanged messages with state Rep. Andrew Stokesbary, a rising leader in the House GOP.

Commission staffers had been told to avoid last-minute lawmaker requests for mapping changes. But House and Senate leaders could get around this by sending messages through their party liaisons, who were on standby at the Hampton Inn.

House Speaker Jinkins texted her liaison, requesting a mapping tweak desired by two local Democratic officials, who shared a home in Tacoma.

“Not the biggest deal,” Jinkins wrote, asking to get the specific Tacoma street address into another district. “Right now, it’s just on the other side of the line.”

Jinkins said constituents had asked her if they could remain in their previous district.“I told them I would ask staff to see if that was possible but that I could make no promises.”

In the end, she said, her request was denied by “the independent, bipartisan commission.”

House Speaker Laurie Jinkins, a Democrat, texted her liaison, asking for a change that had been requested by two local Democratic officials, who shared a home in Tacoma. (Obtained and redacted by ProPublica)

Jamie Nixon, a former commission staffer, said Jinkins’ request violated protocol and was “a vulgar attempt to wield her power to modify a map for her own political benefit.”

Fain, who had recently moved from Bellingham to Normandy Park, didn’t like the district assigned to his new residence. He asked Walkinshaw if they could tweak the congressional lines to move his house.

Walkinshaw rejected the idea.

State government lobbyists were supposed to report any contact with the commission, but a lobbyist for the Service Employees International Union did not disclose texts she sent to Sims on the final night offering assistance finishing up the work. The lobbyist, who was in a relationship with a state Democratic leader, later got a warning letter from the state public records commission. Neither the lobbyist nor Sims responded to ProPublica’s request for comment. The lobbyist’s attorney said in a filing that her texts were not an attempt to influence Sims.

Though commissioners resisted these entreaties, upholding their independence, they had spent precious time fending them off. “There were text messages being exchanged as well as commissioners meeting in the hallway or in the hotel lobby,” Democratic liaison Ali O’Neil wrote on Nov. 21, 2021. “We were forced to compromise on our stated priorities and at times disregard what was shared with the commission during months of gathering public input.”

Lobbying had been going on for months, mostly by persistent citizen groups and Native American tribes. National political operatives were involved in the state’s process too, records revealed. Kurt Fritts, a former national political director for the Democratic Legislative Campaign Committee who now runs a state consulting firm, attended commission meetings and was briefed by Democrats throughout the process. He did not respond to emails or phone calls.

The National Democratic Redistricting PAC made a small contribution to pay for “proprietary redistricting software,” according to Adam Bartz, director of a fundraising arm of the Senate Democrats.

Graves said he consulted the Virginia-based National Republican Redistricting Trust, which coordinates national GOP redistricting strategy. In a deposition, Graves described meeting with NRRT executive director Adam Kincaid while he was in Washington, DC., conferring with GOP members of his state’s congressional delegation. Kincaid said he described to Graves the assistance the NRRT could offer with data and litigation.

Commissioners finally compromised on the Yakima Valley, but only after Democrats conceded. They approved a plan almost guaranteed to bring a federal lawsuit, with a district that had only a 51.5% Latino voting-age population, which was close to what Republicans had wanted.

Source: Washington State Redistricting Commission (Lucas Waldron/ProPublica)

As the meeting wore on, Walkinshaw said it was clear the deal “was the best result that could be achieved through bipartisan negotiation.”

Graves emailed his party leadership just before 6 a.m. to alert them a deal had been reached.

“Get Out of the Way”

Commissioners finally stumbled out of the Hampton Inn just before sunrise and reconvened the next afternoon to get their mapping recommendations drawn. Even though the commission had blown its deadline, the state Supreme Court reviewed its work and decided in late 2021 to let the mapping recommendations stand so that 2022 elections could proceed without interruption.

Angry that they were once again forced to vote under maps they considered discriminatory, Soto Palmer and other plaintiffs sued in federal court, alleging the commission created a Latino district that was a “facade.”

U.S. District Judge Robert Lasnik sided with the plaintiffs in August 2023, finding “inequality in the electoral opportunities enjoyed by white and Latino voters.” He ordered the state to correct the maps.

But Republicans countered, using the Seattle law firm’s tack. A Latino Republican filed a federal lawsuit in March 2022, arguing that the new Latino-dominated legislative district was an illegal racial gerrymander. The plaintiff claimed that Latino voters did not need a 60% opportunity district because the maps drawn by the commission allowed the Yakima Valley to elect its first Latino Republican state senator in 2022. Progress was underway, the plaintiff maintained.

A judicial panel declared the case moot after Lasnik decided the Soto Palmer case, but it is now on appeal to the U.S. Supreme Court.

Jinkins and other legislative leaders decided not to reconvene the 2021 commission to draw new maps that can be used in 2024 elections. Instead, lawmakers asked the court to handle it. A special master is expected to decide soon among five proposed maps that could cost several Republicans their seats.

The commission was forced to acknowledge that its November Hampton Inn meeting violated the state’s Open Public Meetings Act and its own transparency rules. It settled a lawsuit brought by the Washington Coalition for Open Government and agreed to pay about $130,000 in legal fees. Individual commissioners were fined $500 each.

With the next redistricting nearly a decade away, Mike Fancher, the coalition’s president, said the Legislature should decide to “appoint a commission and then get out of the way. Don’t be involved in the staffing of it, don’t be involved in the direction of it. Let this commission do its work. We want to make sure this never happens again.”

Do You Have a Tip for ProPublica? Help Us Do Journalism.

Ryann Grochowski Jones contributed research.

Correction

Jan. 22, 2024: This story originally reported incorrectly to the timing of a lawsuit filed by a Latino Republican. It was filed in March 2022, not March 2023. It also referred imprecisely to New York’s recent redistricting process. A state judge threw out the maps that the legislature had made after an independent commission had failed to finish the redistricting; the judge did not toss the independent commission’s work.

by Marilyn W. Thompson

Congressional Watchdog Will Launch Inquiry Into FDA Oversight of Medical Device Recalls

1 year 3 months ago

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published.

Congressional investigators are launching an inquiry into the Food and Drug Administration’s oversight of medical device recalls for the first time in years following reports that the agency failed to issue warnings about breathing machines capable of sending hazardous particles and fumes into the lungs of patients.

U.S. Sens. Dick Durbin, D-Ill., and Richard Blumenthal, D-Conn., urged the Government Accountability Office to investigate, citing reports by ProPublica and the Pittsburgh Post-Gazette that detailed the role of the FDA in an ongoing health crisis that has threatened millions of people in the United States and around the world.

The news organizations revealed that the agency had received hundreds of complaints about breathing machines manufactured by Philips Respironics long before the company announced a massive recall in 2021, but took no action to alert patients or doctors.

Philips withheld thousands of additional complaints over the course of 11 years while customers who relied on the machines to breathe reported respiratory problems, kidney and liver conditions, and cancer, the news organizations found.

“It’s clear from the Philips case that information about patient harm was known for years and not properly shared or addressed,” Durbin, who chairs the Senate Judiciary Committee, said in a statement. “We must ensure there is adequate oversight on medical device manufacturers so that Americans know the potential risks and can make informed decisions with their health care providers.”

In their request to the GAO, the watchdog arm of Congress, Durbin and Blumenthal said they needed far more information about the FDA’s oversight of the medical device industry, including how the agency ensures that companies initiate recalls and what happens when manufacturers fail to comply.

In an email, the GAO said it accepted the lawmakers’ request to conduct an inquiry.

Philips has said that it evaluated the early complaints about its sleep apnea machines and ventilators on a case-by-case basis and launched the recall after the company became aware that an industrial foam fitted inside the devices could break down and release potentially “toxic and carcinogenic” material.

The FDA has defended its handling of the crisis, saying it received complaints about “general contamination issues” before the recall but that the debris could have been caused by external sources unrelated to foam. At least 30 of the complaints described foam degradation, but the FDA said the reports did not indicate that any patients had been harmed.

“The FDA welcomes the opportunity for GAO review of the agency’s oversight of medical device recalls,” the agency said in a statement last week.

Durbin and Blumenthal said the GAO inquiry would follow up on a similar probe in 2011 that called for changes to better protect patients. Safety advocates said a new investigation is badly needed and long overdue.

In 2022, the FDA received 3 million reports about malfunctioning devices — nearly 30 times more than in 2005, government records show. Nearly one-third described injuries and deaths.

“At the end of the day, the public should have confidence in the products that are regulated by the FDA,” said Kushal Kadakia, a public health researcher at Harvard Medical School who has written about the Philips recall.

Device safety advocates said the GAO should review whether the FDA is regularly using information in health records, insurance claims, medical device registries and other sources — data they said would greatly improve the agency’s ability to track dangerous products. The FDA moved to create a center to bring together that data years ago, but a comprehensive new system is still not in place, records and interviews show.

Former FDA analyst Madris Kinard also said the FDA should do more to ensure the safety of devices before they are marketed and sold. A controversial process at the agency allows device makers to gain clearance for a new product by showing that it is substantially equivalent to one already on the market.

Kinard said the FDA should investigate whether those older models had any safety issues before newer versions are cleared.

“Simply getting a new device to market to me isn’t innovation,” she said. “Innovation is only good if it’s helping the patient.”

Durbin and U.S. Rep. Jan Schakowsky, D-Ill., have proposed legislation aimed at ensuring that doctors and patients receive vital information about recalls by requiring the FDA to create an electronic system of communication for the agency, device makers, hospitals and other providers. The bill would also require device makers to disclose more information about health risks and instruct hospitals and health care workers to pass the information to patients.

The proposal “will create an efficient, accountable system for ensuring patients are routinely notified about safety recalls for medical devices,” Chuck Bell, advocacy programs director at Consumer Reports, said in a statement. “As our health system operates today, consumers and providers may never receive any information ... or may receive it too late to avoid adverse consequences.”

Medicare claim forms should also include identifying information for devices — model numbers and names of manufacturers — to make it easier to detect troubled devices and contact patients in the event of a recall, Kadakia and others said.

“Right now, we rarely know what device has been used in what patient and when,” said Dr. Sanket Dhruva, a cardiologist and assistant professor at the University of California, San Francisco who has studied medical device safety and regulation. “Without this basic, really fundamental information about the device a patient has received, we can’t track the device.”

The GAO inquiry comes as a growing number of federal lawmakers call for investigations into Philips.

Schakowsky, the ranking member of the House Energy and Commerce subcommittee that oversees consumer product safety, said earlier this month that the company must be “fully held accountable and stopped from any future wrongdoing” if investigators determine that Philips failed to warn consumers in the years before the recall.

Schakowsky also cited new revelations, reported last month by ProPublica and the Post-Gazette, that a different foam placed inside replacement devices sent out by Philips after the recall was also found to emit hazardous chemicals, including formaldehyde, a known carcinogen.

“Americans should not be kept in the dark when it comes to the safety of their medical devices, and they certainly should not be forced to choose between a dangerous product and getting the care they need,” Schakowsky said in a statement.

Philips has said the new foam is safe and does not emit chemicals at dangerous levels. The FDA, which first reported that the foam failed emissions testing in 2021, said more tests are needed.

Philips said it regrets any “distress and concern” caused by the recall and is cooperating with authorities. The company also said testing on the original foam in the months after the recall found that the chemical emissions are not at levels that can cause “appreciable harm” to patients. The FDA has challenged Philips, saying in a statement in October that the studies were not adequate and that the company had agreed to conduct additional tests.

Debbie Cenziper with ProPublica and Michael D. Sallah with the Post-Gazette contributed reporting.

by Haajrah Gilani, Emma McNamee, Phillip Powell and Juliann Ventura, Northwestern University; and Jonathan D. Salant, Pittsburgh Post-Gazette

How Walmart’s Financial Services Became a Fraud Magnet

1 year 3 months ago

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published.

Christy Browne was in a panic. The man on the phone said he was from the FBI. He warned her that drug traffickers had obtained her Social Security number and were using it to launder money. He said the FBI needed money to catch them.

“They told me not to go to local law enforcement,” Browne testified in court recently about the February 2020 call. The police were watching her and considered her a suspect, the man said.

At his direction, Browne, a retired elementary school teacher who lives in upstate New York, bought four $500 Walmart gift cards at her local Walmart. It was 3:15 pm. She took photos of the serial numbers and PINs on the back and texted them to the man on the phone. With that information, the fraudster had access to $2,000.

That was only the first step. The gift card numbers were then sold to Qinbin Chen, a Chinese national living in Virginia. At 5:47 pm, Chen passed the numbers to a co-conspirator waiting near a Walmart in Sterling, Virginia.

Just eight minutes later, at 5:55, the accomplice did something that an ordinary consumer would rarely do, but which is routine for fraudsters: use one gift card to buy another. With the numbers from Browne’s Walmart cards, he purchased Apple, Google Play and other gift cards at the store’s self-checkout kiosk. He sent the serial numbers and PINs for those cards to Chen, who then sold them to a buyer in China. Transferring the money to other companies’ gift cards for use in another country made it impossible for Walmart to figure out where the funds ended up. Browne had no way to recover her $2,000.

She was far from the only victim. Chen oversaw the laundering of some $7 million in fraudulently obtained gift cards, according to the Department of Justice. It was a complex international operation involving hundreds of victims, thousands of gift cards and multiple co-conspirators in the U.S. and China.

Federal prosecutors would give it a simple name: “The Walmart scheme.”

America’s largest retailer has long been a facilitator of fraud on a mass scale, a ProPublica investigation has found. For roughly a decade, Walmart has resisted tougher enforcement while breaking promises to regulators and skimping on employee training, according to more than 50 interviews, internal documents supplied by former industry executives, court filings and other public records.

Scammers dupe a victim, as they did with Browne, and then they exploit Walmart’s lax systems to get paid quickly and easily. That’s been true whether the fraudsters use Walmart gift cards or instruct customers to send funds by electronic money transfer. The company, in the latter instance, is supposed to be on the lookout for fraud and asking questions: Do you know the person you’re sending money to? Is the money transfer related to a telemarketing offer?

Too often, Walmart has failed. More than $1 billion in fraud losses were routed through the company’s financial systems between 2013 and 2022, according to filings by the Federal Trade Commission and court cases analyzed by ProPublica. That has helped fuel a boom in financial chicanery. Americans, many of them elderly, were swindled out of $27 billion between 2013 and 2022, according to the FTC.

Walmart has a financial incentive to avoid cracking down. It makes money each time a Walmart gift card is used and earns a fee when another brand of card is bought. And it receives one commission when a person sends a money transfer and a second when the recipient picks it up. The company’s financial services business generates hundreds of millions in annual profits. (Its filings do not provide specific figures for gift cards and money transfers.)

“They were concerned about the bucks. That’s all,” Nick Alicea, a former fraud team leader for the U.S. Postal Inspection Service who investigated Walmart for years, told ProPublica.

Walmart’s deficiencies have repeatedly attracted government scrutiny. In 2017, the attorneys general of New York and Pennsylvania investigated Walmart over concerns that it was “reaping the benefits” of gift card fraud. The investigation concluded a year later with Walmart promising to restrict or eliminate the use of its gift cards to purchase other gift cards, a favored tactic of fraudsters such as Chen. Instead, the company let the practice continue until 2022 — even after it knew that millions of dollars were being laundered through its stores.

The FTC sued Walmart in 2022, alleging it “turned a blind eye” as criminals took advantage of its money transfer service. Walmart, the FTC claimed, pocketed millions in fees while “letting fraudsters fleece its customers.” Summarizing the FTC’s evidence, a federal judge in the case wrote that “Walmart knew that its services were used by fraudsters” and that the company was repeatedly warned about certain stores where “twenty-five, fifty, or even seventy-five percent of money transfer activity was fraudulent.” Separately, a federal grand jury in Pennsylvania is hearing evidence of possible criminal conduct in Walmart’s money transfer business, according to corporate filings that did not detail the allegations.

None of this appears to have slowed Walmart’s ambitions to grab an ever-bigger portion of the financial services market. After years of offering gift cards and prepaid cards, money transfers and check cashing, in 2022 Walmart acquired an online banking platform called One, broadening its financial offerings even further.

But as the company seeks to grow, there is reason for caution. Not only is Walmart continuing practices that ease the way for fraudsters, its previous failings go deeper than the government has alleged, ProPublica found. Its long record of spotty training and compliance, and its refusal to take responsibility for the fraud perpetrated using its systems, cast doubt on its ability to run a sprawling financial business, experts and current and former Walmart employees said.

Walmart strenuously defends its anti-fraud efforts. In a statement, the company said its push into financial services has saved customers without traditional bank accounts $6 billion in fees. The company asserted that it has blocked more than $700 million in suspicious money transfers and refunded $4 million to victims of gift card fraud. “Walmart offers these financial services while working hard to keep our customers safe from third-party fraudsters,” it said. “We have a robust anti-fraud program and other controls to help stop scammers and other criminals who may use the financial services we offer to harm our customers.”

The company’s legal filings in the FTC case struck a different tone. Walmart is seeking to dismiss the suit, partly on the grounds that it has “no responsibility to protect against the criminal conduct of third parties.” Though fraud is “deeply unfortunate,” Walmart argues, such schemes are “reasonably avoidable by consumers.” The company also asserts that the FTC is exceeding its authority in bringing the action. (The judge upheld the FTC’s authority and allowed the suit to continue. He dismissed a second count, which accused Walmart of violating a rule relating to telemarketing fraud, but permitted the FTC to re-file the claim and address his objections.)

Walmart’s weaknesses provided an opportunity for Chen, whose operation is the largest gift card laundering scheme ever prosecuted by U.S. law enforcement, based on a ProPublica analysis of court records. Including Chen, at least 28 state and federal defendants — almost all from China — have been convicted of using gift cards obtained from fraud victims to transfer tens of millions of dollars through Walmart. It’s likely that many more have avoided detection. One prosecutor called gift card schemes a “worldwide effort to empty the United States of its retirement funds.”

Chen spent five years laundering Walmart gift cards before he was arrested in 2021, according to evidence that would emerge in court. Earlier that year, he complained to an associate that more and more people were competing to resell cards in China, eating into his profits.

So many scammers were flocking to Walmart that he and his team regularly encountered them at self-checkout counters. “All of a sudden, a lot more people started to do it in the past couple of years,” Chen wrote in an online message. “We ran into quite a few at the store, and we even started chatting.”

Store #2038, in the Washington, D.C., suburb of Sterling, Virginia, has much in common with the 4,621 other Walmarts across America. A giant U.S. flag stands out front. Walmart’s yellow “spark” logo marks the hangar-like building. And on a sunny midweek afternoon in late November, the massive parking lot is nearly full, but for a pair of close-in spots reserved for “our law enforcement partners.”

Inside, Walmart shoppers are buffeted by financial promotions. Hundreds of gift cards hang on unattended kiosks near the customer-service counter, where people queue to return broken toasters or exchange pajamas. At the money services desk, where three signs tout Walmart’s recently acquired banking app, you can cash a check, pay a bill, or send and receive money to or from just about anyplace in the world.

It doesn’t look like a hub for fraud. But this was one of the stores frequented by Chen’s crew. Born in Fujian province in southeastern China, Chen dropped out of high school and began working in restaurants at the age of 15. In 2014, when he was 21, he came to the U.S. with his father. In America, he often went by the name Ben Chen and worked in Chinese and sushi restaurants until he found a new way to make money in 2016: gift cards.

How Gift Card Laundering Schemes Typically Work A person receives an email, call or text that falsely claims there’s an emergency (say, they owe the IRS money, or a relative was arrested and needs bail). They talk to the fraudster, typically located abroad, who says the only recourse is to spend a large sum on Walmart gift cards and send photos of the numbers on the backs of the cards. The fraudster in turn resells the gift card numbers. They’re bought by a middleman, who then sends them to a “runner” waiting in a Walmart parking lot in the U.S. The runner immediately loads the gift card numbers into the Walmart mobile app or an app used to manage and spend gift cards. The runner heads to a Walmart self-checkout kiosk and uses the card numbers on the app to buy new gift cards for services like Google Play, Steam and Apple iTunes. This launders the money and prevents the victim from getting a refund. The runner sends the new gift card numbers back to the middleman. They are resold on online marketplaces, frequently before the victim even realizes what has happened.

In China, gift card trading is a lucrative business. Gamers crave American Google Play, Apple and Steam gift cards because they can use them to purchase credits for games without needing a U.S. credit card. Gift card trading can create “small gold mines” that generate “long-term, stable profits,” according to a post on a Chinese message board.

The lightning-fast model Chen used to launder the money extracted from Browne was typical of such scams. Chen made his profit by purchasing Walmart gift card numbers at a discount from contacts in China. A $100 Walmart gift card obtained from a victim might cost him only $70. He could then use that Walmart card to buy a $100 Apple card, then resell the Apple card at close to its face value, pocketing the difference.

For years, the scam paid off. At the time of his arrest, Chen had $304,033.99 in one bank account and $278,602.69 in another, according to one court filing.

Chen seemed to enjoy taking chances. “Let me say it plainly,” he messaged one associate. “Buying this stuff has the risk of being arrested.” Chen lied to his then-girlfriend to convince her to let him move money through her U.S. bank account, she later testified. He instructed one of his runners to give police a fake phone number, and furnished another with receipts to deceive officers who might request proof of a gift card purchase, according to court exhibits.

And he could be threatening. Once, a former runner used Chen’s name to set up a Sam’s Club membership. Chen was incensed, court records show. He told the man over WeChat to meet him at a Chinese restaurant in Virginia. Noting that he knew the man’s license plate number, he said, “You will die very painfully.”

Starting in 1999, Walmart made four unsuccessful bids to enter the banking business. Such services would give customers yet another reason to visit Walmart stores, and owning its own bank would save Walmart millions in transaction fees. But Walmart faced resistance from regulators, protests from lawmakers and an outcry from community banks fearful that Walmart would wipe them out.

The company responded to these setbacks by launching a variety of financial offerings that didn’t require a bank charter, including check cashing, electronic bill payments, money orders, and branded debit and credit cards. In each case, Walmart undercut typical industry fees, saving its customers money.

Its largest financial venture, launched in 2002, was in money transfers. The company partnered with MoneyGram, which, like Western Union, has long been in the business of transferring funds. Walmart employees would serve customers, then transmit the money through MoneyGram’s electronic network.

The money transfer industry was, and is, massive, running into the hundreds of billions of dollars globally. It was also awash in swindles. Scammers had long loved money transfers for the same reason customers did: They made it easy to move cash rapidly across the world. Plus, they were hard to trace. The problems were so pervasive that a federal fraud investigation would force MoneyGram to terminate its partnerships with hundreds of non-Walmart retail outlets in the U.S. and Canada in 2009.

In the aftermath of this crackdown, federal officials warned Walmart that fraudsters were using its stores to send and receive money transfers. Walmart assured the officials that it already had a “comprehensive” anti-fraud program and would bolster its efforts by training employees to identify suspicious transactions and providing warning signs and brochures in its stores. But those claims, according to the FTC, “turned out to be false.”

Fraud soared. Walmart outlets at one point accounted for the top 20 locations for fraud nationally among chains that partnered with MoneyGram, according to internal documents. In a single week in March 2017, consumers claiming they’d been duped into a money transfer filed 610 complaints about Walmart, according to documents obtained by ProPublica. CVS ranked second, with 47. Site inspections routinely found that Walmart staff lacked anti-fraud training and that employees failed to ask screening questions.

At the time, MoneyGram was bound by agreements with the FTC and Department of Justice that required it to police any lapses it detected among its partners. An independent monitor appointed as part of one of those agreements wrote that “Walmart has weaknesses in its compliance program.”

But Walmart resisted MoneyGram’s attempts to fight fraud. “Walmart pushed back more than any [outlet] I’ve ever seen,” said Alicea, the former fraud team leader for the postal inspector’s office in Harrisburg, Pennsylvania, who investigated MoneyGram and Walmart.

MoneyGram’s agreements with the government also required that it quickly suspend or terminate transfers at any partner that exceeded fraud-complaint limits. Yet until May 2017, 15 years into their partnership, MoneyGram hadn’t suspended a single Walmart store, according to the FTC. MoneyGram’s inaction helped prompt additional penalties from the FTC and the Justice Department.

Walmart officials insisted that shutting down transfers wasn’t “customer-friendly,” Alicea said. The company said it could address the problem with training. Walmart also routinely blamed MoneyGram, even though Walmart shared responsibility for compliance and its employees processed the transfers, Alicea said. “They have the face-to-face contact with the customer. MoneyGram doesn’t,” he said. “Someone’s going in there with a walker and $5,000 and sending the money to Nigeria? Come on.”

MoneyGram was afraid to alienate Walmart, three former MoneyGram officials said. “You don’t shut down one store and make Walmart angry,” said Mark Shaffer, who worked at Walmart for 27 years before joining MoneyGram to help manage its relationship with the retailer. “They [might] say, ‘Fine, you’re out of all 3,000!’” (MoneyGram was released from its FTC and Justice Department compliance agreements in 2021. A spokesperson for the company said it has “invested more than $800 million to enhance its compliance program and doubled the size of its compliance team,” and now has “record-low consumer fraud complaints.”)

A Walmart MoneyCenter in 2011. After failed attempts to set up its own bank, the company began expanding into money transfers, check cashing and other financial services. (Laura Pedrick/The New York Times/Redux)

Even as Walmart dragged its heels on combating fraud in its partnership with MoneyGram, the company took a major step that effectively loosened security. Walmart launched a second money-transfer service, Walmart2Walmart, a discount operation that allowed people to send money between Walmart stores. If fraudsters seeking to transfer money through MoneyGram at a Walmart store were stymied by security, they could simply try again using Walmart2Walmart, or vice versa.

Scammers immediately abused the popular service, causing an explosion in money transfers by victims of fraud, according to former executives and testimony from law enforcement. “There were a whole bunch of transactions that should have been looked into that weren’t,” former Walmart business development director Axel Wulff, who helped create Walmart2Walmart, said in an interview. “We simply didn’t have the resources to follow up on everything.”

Ria, the company that provides the electronic backbone of Walmart2Walmart, acknowledged the service’s struggles. “Unfortunately,” Ria noted in a statement, Walmart2Walmart was “exploited by fraudsters, who are always looking for new alternatives to facilitate their fraud schemes.” In response, Ria restricted or suspended transactions at high-fraud Walmart stores and worked with Walmart to establish systemwide controls. Ria “prevented significantly more fraud attempts than those that were completed,” it said.

In its own statement to ProPublica, Walmart asserted that it has stopped “hundreds of thousands of suspicious money transfer transactions” and that “fewer than 2 out of every 10,000 money transfers at Walmart were reported as even possibly fraudulent in 2021.”

Walmart was more combative in its pleadings in the FTC case, denying any obligation to act on “alleged” red flags. “No law prohibits consumers from sending multiple money transfers or from using out-of-state IDs, and Walmart has no grounds to scrutinize customers who do so,” it wrote. The company rejected the idea that it should “interrogate” customers sending money to “certain countries” based on “stereotypes that an entire ‘countr[y]’ presents a ‘high-risk’ of ‘fraud.’”

It was unfair, Walmart said, to punish the company for “not second-guessing customers and blocking transfers they have freely chosen to undertake.” But standard industry agreements and federal regulations require precisely that.

As the FTC and DOJ began cracking down on money transfers and MoneyGram responded in 2017 by suspending transfers at some Walmarts, scammers started favoring another tactic: telling victims to buy gift cards.

Complaints about gift card purchases at Walmart flooded the offices of state attorneys general. As part of the joint investigation launched in 2017 with New York’s attorney general, Pennsylvania officials pressed Walmart to compensate “victims who were never questioned or warned of the potential for a scam by Walmart clerks or managers.” The attorneys general also looked at Target and Best Buy.

Walmart representatives met with lawyers from the two states. According to meeting notes obtained through a records request, Walmart again invoked its customer-service argument: “Walmart not sure they want employees to refuse transactions … against the ethos of making customers happy,” the notes said.

On Nov. 20, 2018, New York and Pennsylvania announced that Walmart, Target and Best Buy agreed to make “significant” changes to their gift card policies. They included lowering the amount of money that could be loaded onto a card to $500, limiting the number and total value of gift cards that could be purchased at one time, and improving employee training.

The retailers also said they would restrict or eliminate the use of a gift card to purchase other gift cards. That should have been the death knell for the laundering method used by Chen and others. Best Buy and Target soon implemented a ban on gift-card-for-gift-card purchases.

Walmart said it would do the same, but then let the laundering continue for nearly four more years.

The company decided against imposing a ban, according to Fred Helm, who worked for Walmart’s global investigations unit. “That was a big conversation,” Helm told ProPublica. “The Walmart business side makes that call, not the legal side. I think it was probably just a case of ‘business wins the day.’”

Walmart’s statement to ProPublica did not address questions about its agreement with New York and Pennsylvania. The company pointed to an FTC report that showed fraud losses were considerably higher for Target cards than Walmart cards in the first nine months of 2021. (The FTC’s method didn’t take into account gift-card-for-gift-card purchases, which Target had banned, but which were still allowed at Walmart. The FTC has not run a similar calculation for other years.)

Chen had already made Walmart his focus before the 2018 agreement. The company’s decision not to bar card-for-card purchasing enabled him to expand his business. He recruited runners by placing ads on WeChat, a Chinese social network, and on a Chinese-language site focused on the D.C. area, according to trial evidence.

In 2019, Chen connected with Jin Hong, a Virginia native, and offered him a 3% commission on the dollar amount of Walmart gift cards he laundered. He could earn $300 a day by moving $10,000 in cards.

“Easy to do [USD] 2,000 in a single store,” Chen said, according to WeChat messages translated by the FBI. He added: “Working hours are from 11 to 6. [You] may leave early if there is no order.”

“I don’t mind giving it a shot!” Hong said.

Chen sent him a list of Walmarts and Sam’s Clubs. “These are the ones where are relatively easy to make the purchase,” Chen said. Hong started the next day and worked for Chen for six months. Hong would later plead guilty to one count of conspiracy to commit wire fraud and agreed to cooperate with the government.

“You would sit in a Walmart parking lot from 11:00 to 6:00, five days a week, redeeming gift cards, correct?” a prosecutor asked.

“Correct,” Hong said. It was Hong who waited in the Walmart parking lot before converting the gift cards that Christy Browne was tricked into buying.

Reached by phone, he declined to comment.

Chen had two rules for his runners: Move fast and use the self-checkout kiosk. Speed ensured a victim couldn’t reclaim their funds before a runner could launder the Walmart gift card. Self-checkouts were key because they operate with little oversight.

But even if Walmart employees had noticed Chen or one of his minions, they weren’t properly trained to identify and stop financial misbehavior. With Walmart’s high turnover, many workers lacked experience, and they were under pressure to make quick sales to keep checkout lines short. A former manager who spent a decade working at Walmart said it was “very rare” for associates to ask questions to determine whether customers might be involved in, or a victim of, fraud. Federal regulations require such questions for money transfers but not gift cards.

Today, Walmart cashiers handling gift cards, prepaid cards and money transfers are supposed to complete anti-money-laundering and anti-fraud training through computer-based courses. They consist of videos and multiple-choice quizzes. Associates must score 100% before being allowed to work the register.

A current Walmart employee with six years’ experience in the MoneyCenter, a financial services section offered in some Walmart stores, said that the training videos include obsolete technology and don’t cover all of Walmart’s financial products. “I think the training could be a heck of a lot better than it is. They’re not current to what we’re doing.”

Walmart said that associates “are part of a large team dedicated to fighting fraud. Walmart trains hundreds of thousands of associates annually.” It said employees handling money transfers receive additional training, including “job aids, manuals and infographics” and “daily knowledge checks at the register.”

ProPublica readily found copies of Walmart’s current “advanced” anti-money-laundering and anti-fraud quiz online, complete with answers. They were posted by Walmart associates who said they shared them to help colleagues pass the quiz.

ProPublica showed a copy to Christian Hunt, a former head of compliance at UBS Asset Management and the author of “Humanizing Rules: Bringing Behavioural Science to Ethics and Compliance.” Hunt said Walmart’s test is riddled with “lazy, pointless” questions that don’t help employees identify or prevent fraud. “It allows you to say you have tested them,” he said. “It does not allow you to say they genuinely understand this.”

The test’s first question is, “Which of the following is the process of collecting basic information about a customer regarding their identity?” The answer is “Know Your Customer.” Hunt said Walmart cashiers don’t need to know the phrase; they need to understand what information to collect and why.

Walmart cashiers and managers said they are responsible for enforcing a limit of four $500 gift cards per purchase (as laid out in the agreement with New York and Pennsylvania). But, according to police reports and a current Walmart associate, employees often ignore the limit.

Walmart seems to have had more success in staving off fraud when it relies on technology. The company employs analytics and artificial intelligence, and Helm’s team developed a system called Redemption that can automatically freeze the balance of a gift card if it exhibits activity consistent with fraud.

In 2022, Walmart turned over to the Secret Service roughly $4 million that it had frozen using the Redemption system. The funds, which were seized from gift cards loaded in July 2017, are being refunded to people who purchased the original gift cards.

“The secret sauce is miles per hour — the speed that the money is moving between the reload [of a gift card] and redemption,” Helm said. The system could, for example, detect if someone had bought gift cards in Pennsylvania and the same cards were being redeemed in Texas soon after. “We may have the disease of being so large, and things fall through the cracks, but this was one hell of an effort,” Helm said.

Still, Redemption captures only a small fraction of the fraud. And Walmart has not returned any money that was frozen on cards since 2017. Walmart declined to comment on the lag or to reveal how much money it has seized in total.

The flimflams continue, even in Walmart’s home state of Arkansas. In March 2022, a 39-year-old man with autism and what his mother described as “a mental impairment” began an online romance with someone he believed was WWE wrestling star Bianca Belair. Following the impersonator’s instructions, he used a credit card he’d obtained at the direction of the scammer to purchase $7,500 in Apple gift cards at a Walmart in Hot Springs, Arkansas. His mother filed a complaint with the Arkansas attorney general, asking how Walmart could permit such a suspicious transaction without asking questions. As she put it, “I’m a pissed off angry mom.”

A few months later, an 82-year-old woman ensnared in a fraud scheme purchased $14,000 worth of Walmart gift cards at two stores in Rogers, Arkansas. According to her son, employees didn’t ask anti-fraud questions and failed to enforce the gift card limits. She never got her money back. The woman had worked for many years in a warehouse — at Walmart.

Gift card fraud is increasingly taking a different form: balance theft. A scammer grabs Walmart gift cards and takes them to a private spot, such as a bathroom stall. The criminal peels off the protective tape covering the PIN and photographs it and the card’s serial number. They reapply security tape and put the cards back on display, hoping a customer will pick one up.

As soon as a customer activates a card and loads money onto it, the crook (who uses the PIN and serial number to monitor the card’s balance on Walmart’s website) spends the money. When people go to use the card, they discover it has a balance of zero.

Walmart could thwart balance theft by wrapping its gift cards in secure packaging, as other retailers do, and by keeping them in a secure location. Walmart already puts items such as video games, nicotine gum and replacement bulbs for car headlights behind lock and key.

Walmart gift cards are “just sitting on the shelf like an open deck of cards,” noted Craig Heidemann, an attorney who filed a class-action against Walmart in 2018 over its alleged failure to protect gift card buyers. (Heidemann’s suit was dismissed in 2022 and he wouldn’t comment on whether he’d reached a settlement.)

The difference between Walmart and other brands was evident in November at the Virginia store formerly targeted by Chen. Among dozens of varieties of gift cards, only the Walmart-branded ones lacked protective packaging.

In September, Qinbin Chen went on trial. Six of his confederates had already pleaded guilty to criminal charges. Now the diminutive Chen sat at the defense table, with a Mandarin translator, to answer to eight counts of money laundering, conspiracy, access device fraud and aggravated identity theft.

The pretrial period had been contentious. Chen was chronically dissatisfied with his lawyers, most of whom were court-appointed. As the trial began, he was on his sixth attorney.

The trial lasted three days. Prosecutors used testimony from co-conspirators and messages obtained from Chen’s phone to portray him as a driven criminal. The government called him the “quarterback for a criminal organization that obtained, used, transferred, and laundered” Walmart gift cards with millions of dollars of value. Chen’s lawyer countered that his client ran a legitimate gift card business and that the government failed to show Chen knew the Walmart cards came from fraud victims.

On Sept. 14, after less than three hours of deliberation, the jury convicted Chen on all eight charges. He faces between two and 20 years in prison and is expected to be sentenced in February.

In late November, Chen sent a letter to the trial judge, outlining multiple grievances. Printing by hand on yellow lined paper, Chen complained that he was “treated in an Incorrect and careless way. It’s led me lose my trial. … I really need my retrial with different lawyer.” (By Dec. 13, a seventh attorney was representing him. That lawyer did not respond to requests for comment.)

For her part, Browne, the retired teacher who lost $2,000, is still grappling with what happened to her. Even before being defrauded, she didn’t use credit cards or digital payments due to security and privacy concerns. Now she’s scared to answer her phone.

She told ProPublica: “There isn’t anything I trust any more.”

Doris Burke contributed research.

by Craig Silverman and Peter Elkind

5 Takeaways From Our Investigation Into How Mississippi Counties Jail People for Mental Illness

1 year 3 months ago

This article was produced in partnership with Mississippi Today, which was a member of ProPublica’s Local Reporting Network in 2023. Sign up for Dispatches to get stories like this one as soon as they are published.

For many people in Mississippi, the path to treatment for a serious mental illness may run through the local jail — even though they haven’t been charged with a crime.

In 2023, Mississippi Today and ProPublica investigated the practice of jailing people solely because they were waiting for mental health treatment provided through a legal process called civil commitment.

We found that people awaiting treatment were jailed without criminal charges at least 2,000 times from 2019 to 2022 in just 19 counties, meaning the statewide figure is almost certainly higher. Most of the jail stays we tallied lasted longer than three days, and about 130 were longer than 30 days.

Some people have died after being jailed purportedly for their own safety.

Every state has a civil commitment process in which a court can order someone to be hospitalized for psychiatric treatment, generally if they are deemed dangerous to themselves or others. But it is rare for people going through that process to be held in jail without criminal charges for days or weeks — except in Mississippi.

If you’d like to share your experiences or perspective, contact Isabelle Taft at itaft@mississippitoday.org or 601-691-4756.

In Mississippi, the process starts when someone files paperwork with a county office alleging that another person’s mental illness or substance abuse is so serious that they are a danger to themselves or others. That person is taken into custody by sheriff’s deputies until they can be evaluated and go before a judge. Although people may wait at a medical facility, if no publicly funded bed is available, they can sit in a jail cell until a treatment bed opens up.

We have spoken with people who were jailed solely on the basis of mental illness, family members of people who went through the commitment process, sheriffs and jail administrators, county officials, lawmakers, the head of the state Department of Mental Health, and experts in mental health and disability law. We have filed more than 100 public records requests and reviewed lawsuits and Mississippi Bureau of Investigation reports on jail deaths.

Here are five key findings from our reporting so far.

People Jailed While Awaiting Mental Health Treatment Are Generally Treated the Same as People Accused of Crimes

We spoke to more than a dozen Mississippians who were jailed without criminal charges as they went through the civil commitment process. They wore jail scrubs and were often shackled as they moved through the jail. They were frequently unable to access prescribed psychiatric medications, much less therapy or other treatment. They had no idea how long they would be jailed, because they could get out only when a treatment bed became available. They were often housed alongside people facing criminal charges. One jail doctor told us that people going through the commitment process were vulnerable to assault and theft of their snacks and personal items.

“They become a prisoner just like the average person coming in that’s charged with a crime,” said Ed Hargett, a former superintendent of Parchman state penitentiary and a corrections consultant who has worked with about 20 Mississippi county jails. “Some of the staff that works in the jail, they don’t really know why they’re there. … Then when they start acting out, naturally they deal with them just like they would with a violent offender.”

A woman going through the civil commitment process, wearing a shirt labeling her a “convict,” is transported from her commitment hearing back to a county jail to await transportation to a state hospital in north Mississippi. (Eric J. Shelton/Mississippi Today) Jails Can Be Deadly for People in Crisis

At least 14 people have died after being jailed during the commitment process since 2006, according to our review of lawsuits and records from the Mississippi Bureau of Investigation. Nine died by suicide, and three died after receiving medical care that experts called substandard. Most recently, 37-year-old Lacey Handjis, a Natchez hospice-care consultant and mother of two, died in a padded cell in the Adams County jail in late August. Her death was not a suicide and is still under investigation.

Brandon Raymond died in the Quitman County Jail in 2007 while awaiting a rehab bed. His sister, Stacy Raymond, has few pictures of her brother; she got this one from a Facebook memorial post. She said if she had known he would die so young, she would’ve taken more photos. She described him as big-hearted, always happy and a devoted father to his son. (Courtesy of Stacy Raymond)

Adams County Sheriff Travis Patten said he asked the state Bureau of Investigation to review Handjis’ death. “It just hurt me because I just know that people who are suffering from those type of conditions shouldn’t be in jail,” he said in September.

Mental health providers we spoke with said jail can exacerbate symptoms when someone is in crisis, increasing their risk of suicide. Jail staff with limited medical training may interpret signs of medical distress as manifestations of mental illness and fail to call for additional care.

After three men awaiting treatment died by suicide in the Quitman County jail in 2006, 2007 and 2019, chancery clerk Butch Scipper no longer jails people going through the commitment process. His advice to other county officials: “Do not put them in your jail. Jails are not safe places. We think they are, but they’re definitely not” for people who are mentally ill.

Mississippi Is a Stark Outlier in the U.S.

Mississippi Today and ProPublica surveyed disability rights advocates and state behavioral health agencies in all 50 states and the District of Columbia. Nowhere else did respondents say people are routinely jailed for days or weeks without criminal charges while going through the involuntary commitment process. In three states where respondents said people are sometimes jailed to await psychiatric evaluations, it happens to fewer people and for shorter periods. At least a dozen states ban the practice altogether; Mississippi law allows it when there is “no reasonable alternative.” In Alabama, a federal judge ruled it unconstitutional in 1984.

Disability rights advocates in other states and experts on civil commitment or mental health care used words like “horrifying,” “breaks my heart” and “speechless” when they learned how many Mississippians are jailed without criminal charges while they wait for mental health care every year.

Wendy Bailey, head of the Mississippi Department of Mental Health, has said it’s “unacceptable” to jail people simply because they may need behavioral health treatment, and staff have encouraged chancery clerks to steer families toward outpatient treatment instead of the civil commitment process when appropriate.

The Department of Mental Health says it prioritizes people waiting in jail when making admissions to state hospitals, and the average wait time in jail after a hearing has dropped. The state has expanded the number of crisis unit beds and plans to add more. And it has increased funding for local services in recent years in an effort to reduce commitments.

In early January, Bailey said the agency has been reviewing commitment statutes in other states that restrict jailing people during the process. During the current legislative session, she said, the agency will support “changes to the commitment process that we hope will divert Mississippians from unnecessary commitments.”

Cassandra McNeese, left, and her mother, Yvonne A. McNeese, in Shuqualak, Mississippi. Cassandra’s brother, Willie McNeese, has been held in jail during civil commitment proceedings at least eight times since 2008. Cassandra McNeese said Noxubee County officials told her jail was the only place available for him to wait. “This is who you trust to take care of things,” she said. “That’s all you have to rely on.” (Eric J. Shelton/Mississippi Today) Despite a State Law, There Has Been Almost No Oversight of Jails That Hold People Awaiting Treatment

In 2009, the Mississippi Legislature passed a law requiring any county facility that holds people awaiting psychiatric treatment through the commitment process to be certified by the Department of Mental Health. The department developed certification standards requiring suicide prevention training, access to medications and treatment, safe housing and more. But the law provides no funding to help counties comply and has no penalties if they don’t. Only a handful of counties got certified, and after 2013 the department’s efforts to enforce the law apparently petered out.

As of late last year, only one jail — out of 71 that had recently held people awaiting court-ordered treatment — was still certified. There is no statewide oversight or inspection of county jails.

After we asked about the law, the Department of Mental Health sought an opinion from the Mississippi Attorney General’s Office, which opined that it is a “mandatory requirement” that the agency certify the county facilities, including jails, where people wait for treatment. In October, the department sent letters to counties informing them of the attorney general’s opinion and encouraging them to get certified. Department officials are waiting for counties to initiate the certification process, though they know which jails have held people after their hearings. Department leaders, including Bailey, have emphasized that they have limited authority over counties and can’t force them to do anything.

A padded cell used to hold people awaiting psychiatric evaluation and court-ordered treatment at the Adams County jail in Natchez, Mississippi. Lacey Robinette Handjis, a 37-year-old hospice care consultant and mother of two, was found dead in one of the jail’s two padded cells in late August, less than 24 hours after she was booked with no criminal charges to await mental health treatment. (Eric J. Shelton/Mississippi Today) The Practice Is Not Limited to Small, Rural Counties

According to data from the Mississippi Department of Mental Health, 71 of the state’s 82 counties held a total of 812 people prior to their admission to a state hospital during the fiscal year ending in June. According to state data and our analysis of jail dockets, the two counties that jail the most people during the commitment process are DeSoto and Lauderdale — together home to three of the state’s 10 largest cities. DeSoto has one of the highest per capita incomes in the state, and Lauderdale’s is above average. (Those counties’ chancery clerks, who handle the civil commitment process, and officials with the boards of supervisors, which handle county finances, haven’t responded to questions about why they jail so many people going through the commitment process.)

Meanwhile, some smaller, rural counties don’t jail people or do so rarely. Guy Nowell, who served as chancery clerk of Neshoba County until the end of 2023, said the county arranged each person’s commitment evaluations and hearing to take place on the same day to eliminate waits between appointments. If no publicly funded bed is available after the hearing, the county pays for people to receive treatment at a private psychiatric hospital.

by Isabelle Taft, Mississippi Today