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Judge Orders Washington State Private Special Education School to Turn Over Records

2 years 2 months ago

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

A King County judge ruled last week that a private special education school that has been the subject of a recent Seattle Times and ProPublica investigation has to comply with public information laws and release records to the Times.

The ruling has the potential to shed light on an obscure part of Washington’s special education system, in which school districts send students with disabilities to private programs at taxpayer expense. Few other legal rulings have defined how the state’s public records laws apply to private organizations that assume the functions of government agencies.

The special education schools operate with little state oversight and aren’t required to disclose key data, like discipline rates or test scores, as traditional public schools are.

The investigative series, published late last year, found significant problems at the Northwest School of Innovative Learning, the largest program in the system, including allegations of abuse by staff, a lack of basic resources and unqualified aides instead of certified special education teachers leading classrooms.

While researching the story, in December 2021, Times reporter Mike Reicher sent a request to Northwest SOIL seeking records related to restraint and isolation of students, staff training materials, complaints against the school, government inspection reports and other documents.

These documents would be available at any public school under the state’s Public Records Act, which requires government agencies to make documents available for public review to ensure transparency but typically does not apply to private entities. Northwest SOIL is owned by Fairfax Hospital, the largest private psychiatric hospital in Washington and a subsidiary of the Universal Health Services hospital chain. UHS denied the Times’ request, noting the school was not a government agency.

The Times sued Fairfax in February, arguing that Northwest SOIL should be subject to state transparency laws because it was a “functional equivalent” of a public agency — all its students were placed by public school districts, and their tuition was paid entirely using tax dollars.

In a Jan. 18 order, King County Superior Judge Annette Messitt agreed with the Times, granting its motion for summary judgment. Messitt wrote that Northwest SOIL “has essentially stepped into the shoes of the school districts to carry out the state’s duty to provide special education to children with disabilities.”

Fairfax and its attorneys did not respond to requests for comment and haven’t indicated whether they plan to appeal. Previously, Fairfax denied that it understaffed its schools and said restraint and isolation were only used as a last resort.

“They are paid with public tax dollars, and they are charged with educating and nurturing public school students — and only public school students,” Seattle Times Executive Editor Michele Matassa Flores said. “They should be held accountable, which starts with parents and the taxpaying public being able to see what’s happening there. This disclosure is a step toward transparency and ultimately better outcomes for the students.”

The Times and ProPublica pieced together details about Northwest SOIL by sifting through more than 17,000 pages of documents obtained under public records laws from more than 40 schools districts, three police departments and the state education department.

The series prompted a sweeping reform bill in the Washington State Legislature and an investigation by the state Office of Superintendent of Public Instruction. OSPI noted that some allegations were “previously unknown” to the education office and other government agencies.

The ruling has potential implications for parents of children who have attended private programs that have operated for years with little accountability or oversight.

Emily Ragan, whose son attended Northwest SOIL last school year, said the school needed to be more transparent. In a declaration in support of the Times’ lawsuit, Ragan described how her son, then 9 years old, came home from school with bruises at least seven times. When she asked Northwest SOIL for video footage that might explain how her son was injured, the school similarly denied her request.

Ragan supported the Times’ lawsuit because “I believe that would help parents like me find out what really goes on at Northwest SOIL,” she wrote in her declaration.

Messitt’s ruling last week compels Fairfax and Northwest SOIL to provide the Times with all documents and information that the newspaper requested, with the exception of those that are exempt under state law, in February and March, absent an appeal. The ruling also awarded the Times attorney fees and potential penalties, to be determined later, for the withholding of the records.

“This important ruling will shine a light on how a large for-profit corporation carries out the state’s educational duties at enormous public expense,” said Katherine George, the Times’ attorney. “It will help the public assess whether vulnerable students are getting the services and humane treatment they deserve.”

Messitt used a four-pronged legal assessment, known as the Telford test, to judge whether the private school was subject to public records. The judge wrote that three of the four factors applied to Northwest SOIL to some degree: the school performs a government function, it receives significant government funding and it is subject to government involvement or control. The fourth factor — whether an entity was created by the government — does not apply, Messitt wrote.

In 2017, the state Supreme Court applied the test in a public records case involving an animal rights activist who requested records from the private nonprofit group that ran the Woodland Park Zoo. In that case, the court ruled in favor of the zoo and against public disclosure, but it found the Telford test was an appropriate way to decide whether a private entity must comply with the Public Records Act.

Mike Reicher of The Seattle Times contributed reporting.

by Lulu Ramadan, The Seattle Times

Nearly Half of All Sheriffs in Louisiana Are Violating Public Records Laws

2 years 2 months ago

This article was produced for Verite by Richard A. Webster, who covered the Jefferson Parish Sheriff’s Office as part of ProPublica’s Local Reporting Network in 2021-22. Sign up for Dispatches to get stories like this one as soon as they are published.

Nearly half of Louisiana sheriffs are in violation of a state law regulating the preservation and destruction of public records, according to documents provided by state officials.

The disclosure follows an article this month by Verite, also published by ProPublica, on accusations that the Jefferson Parish Sheriff’s Office illegally destroyed documents in a lawsuit involving an autistic boy who died in custody. It also comes on the heels of increased scrutiny on the outsize power wielded by Louisiana sheriffs.

The new reporting found that the lack of a records retention policy extends far beyond Jefferson Parish. Of the 64 sheriffs statewide, 23 have never secured state approval for their policy, three allowed their policies to expire (one as far back as 1980) and the policies of an additional four are so limited they only address a small fraction of the records in their possession.

State law requires all public agencies to submit a records retention policy for approval to the State Archives, a division of the Secretary of State’s Office.

Further, in the past decade, nearly two-thirds of all Louisiana sheriffs failed to file a request with the state for permission to dispose of public records, as required by the same law. The State Archives, the agency responsible for overseeing and approving the handling of records, keeps disposal requests on file for 10 years.

The lack of governmental oversight of elected sheriffs — despite years of complaints and allegations of civil rights abuses — has made it difficult for alleged victims of police abuse to prove misconduct. It has also led to impunity for bad actors, according to civil rights attorneys, community activists and criminal justice experts.

And the lack of state approval for the disposal of public records means sheriffs offices are not fully accounting for information about alleged deputy misconduct, which can be crucial in investigations and litigation over claims of civil rights violations. These records can include internal affairs investigations into the use of excessive force and in-custody deaths, as well as more mundane documents such as payroll records.

Verite requested the records retention policies and disposal requests filed by every sheriff from the State Archives, the agency responsible for overseeing and approving the handling of records.

Some of the largest sheriff’s offices are among those that didn’t follow the public records law.

The Orleans Parish Sheriff’s Office under former Sheriff Marlin Gusman never sought approval for a records retention policy during his 17 years in office, according to the State Archives. In addition, Gusman did not obtain permission to destroy records for at least 10 years.

The parish jail overseen by the sheriff has been under a federal consent decree since 2013 following evidence of rampant violence — at the hands of both the guards and of those jailed — and unsafe living conditions. The consent decree is concerned with federal, not state, law and does not require the OPSO to get a state-approved records retention schedule.

As part of the federal consent judgment, Emily Washington and Elizabeth Cumming, attorneys with the MacArthur Justice Center in New Orleans, represent the men and women held in the Orleans Justice Center. They said they have been forced to request court assistance in accessing records related to in-custody deaths and uses of force by jail deputies. This highlights the need for records retention policies, Cumming said, not just for public accountability and transparency, but also for ensuring that jails are being operated in accordance with the Constitution.

“Comprehensive and accurate records are critical if patterns and causes of harm are going to be identified and corrected, for example when looking at staff deployment or employee discipline,” Cumming said. “Without a robust practice of record generation, maintenance, review and assessment, our clients will continue to experience preventable violations of their rights.”

Sheriff Susan Hutson, who defeated Gusman in the 2021 election, completed and signed a new records retention policy draft on Jan. 24, which will be submitted to the state for approval. Improving the agency’s handling of public records is a priority, she said.

“One of the things I told our communities is that this is going to be a well-run department, and that includes following the law,” Hutson said. “These are the community’s records. It’s their information. And we should be making sure it’s collected, preserved and available.”

The problems with the Jefferson Parish Sheriff’s Office came to light in a federal civil rights lawsuit filed by the family of a 16-year-old autistic boy who died in January of 2021 while being restrained by JPSO deputies. Attorneys for the family of Eric Parsa accused the sheriff of illegally destroying the disciplinary records of the accused deputies.

U.S. Magistrate Judge Donna Phillips Currault in a November ruling found that JPSO should have known to preserve the disciplinary and training records of deputies involved in the case. However, she denied the family’s request to place sanctions against the sheriff, stating that the family failed to prove JPSO destroyed evidence in “bad faith” or with a “desire to suppress the truth.”

According to its written policy, the sheriff’s office destroys its deputies’ disciplinary records after three years. Yet, as previously reported, it has not secured approval for that policy, nor has it submitted requests to dispose of public records in at least a decade, according to the State Archives.

This month, JPSO attorney Danny Martiny said the office doesn’t comment on pending litigation. Jefferson Parish Sheriff Joe Lopinto, who did not respond to requests for comment, denied all wrongdoing in court filings.

Attempts to reach Gusman were unsuccessful.

Record retention policies, or schedules, determine how long public records are preserved, and they provide guidelines on how they should be destroyed. Every public agency is required by law to submit one for approval with the State Archives.

State law instructs the secretary of state to notify the head of any agency of the “impending, or threatening unlawful removal, defacing, alteration, or destruction of records … and initiate action through the attorney general for the recovery of such records.”

Destroying, damaging, altering or removing public records “required to be preserved in any public office or by any person or public officer” is punishable by up to a year in prison, a fine of up to $1,000 or both.

State Archivist Catherine Newsome said aside from “ongoing outreach” to agencies throughout the state, there is little more State Archives can do since it is not a “law enforcement or compliance agency.”

Michael Ranatza, executive director of the Louisiana Sheriffs’ Association, in an email said that the group’s interpretation of the law allows sheriffs to retain public records for at least three years in the absence of a “more detailed records retention schedule.”

“We believe that Sheriffs utilizing the statutory alternative of a three year minimum retention period in the absence of a more formal retention policy are not acting unlawfully,” Ranatza said.

He did not address why 42 sheriffs do not have any disposal requests on file for at least 10 years.

Guidance from the secretary of state’s office says, “State agencies are required under La. R.S. 44:411 to submit a records retention schedule” to the State Archives for approval.

Asked if every agency is required by law to submit a records retention schedule to the secretary of state for approval, Newsome said, “Yes.”

by Richard A. Webster, Verite

The Museum Built on Native American Burial Mounds

2 years 2 months ago

ProPublica is a nonprofit newsroom that investigates abuses of power. This story is part of an ongoing series investigating the return of Native American ancestral remains. Sign up for ProPublica’s Repatriation Project newsletter to get updates as they publish and learn more about our reporting.

Every day when Logan Pappenfort is at work, he tries not to dwell on what’s under his feet. Beneath the south wing of the museum where he’s interim director are the remains of at least 234 of his ancestors.

For more than 800 years, they laid undisturbed, carefully buried inside a mound of earth overlooking a quiet valley and a slow river. Then in the 1920s, a chiropractor named Don Dickson dug open the mound, eventually exposing the remains of hundreds of Native Americans. He left them in place, and his family turned the excavation into a roadside attraction they called Dickson Mounds. They charged visitors 50 cents for admission.

In 1945, the state of Illinois purchased the site and later expanded it into a museum. The exposed human remains were used for decades to teach schoolchildren, visitors and local residents about what the museum presented as a long-gone culture of Illinois Indians.

.repat-intro-block .repat-tag h2{ color: var(--black); text-align: left; font-family: var(--fonts-sans); } .repat-intro-block{ background-color: #E1DCD0; padding: 1em; border-radius: 5px; } p a.intro-block-link{ text-decoration: none; color: var(--color-accent-70); font-weight: 700; } p a.intro-block-link:hover{ text-decoration: underline; } .repat-intro-block p{ font-size:var(--scale-1); font-family:var(--fonts-sans); line-height:var(--line-height-1); padding-top: 1em; } .repat-intro-block h6{ font-size: var(--scale-2); font-family: var(--fonts-sans); line-height: var(--line-height-1); color: var(--warm-60); padding-top: 1em; } .repat-tag{ display: block; position: relative; } .repat-tag h2{ font-size: var(--scale-1); text-align: center; padding-bottom: 1em; color: var(--warm-10); font-family: var(--fonts-sans); font-weight: 700; } The Repatriation Project A series investigating the return of Native American ancestral remains.

View the Full Series

The exhibit closed in the early 1990s, after Congress passed legislation requiring museums to begin returning Native American human remains and funerary objects to their rightful owners. Contractors installed cedar floorboards over the pit. They left no doorway, no hatch.

The remains at the Dickson Mounds Museum, which is a branch of the Illinois State Museum, account for a sliver of all the Native American human remains still in the hands of the state of Illinois. Federal records show the Illinois State Museum has reported that it holds the remains of at least 7,000 Native Americans. In three decades, it has returned only 2% of them — 156 individuals — to tribal nations who could claim them under the Native American Graves Protection and Repatriation Act. That is among the lowest return rates in the country.

ProPublica found that the museum avoided repatriating any remains dating to before 1673, when European records of the area begin, which marks the start of what archeologists call the “historic era.” Museum leaders believed anything older than that could not be traced to living people and therefore could not be repatriated. Those decisions were based solely on geographic, scientific and historical evidence — including the maps and journals recorded by Europeans during their travels down the Mississippi River in 1673 — despite the law requiring institutions to also weigh linguistics, folklore and oral history. NAGPRA does not require absolute certainty in order to repatriate.

In its initial inventory, the museum declared 98.4% of the Native American remains in its collections “culturally unidentifiable,” and after completing required tribal consultations in the mid-1990s, it did close to nothing to advance repatriations for more than 20 years. Instead, ProPublica found, the museum prioritized the scientific study of Native American human remains over their return.

The Repatriation Project,” an ongoing investigation by ProPublica and NBC News, has found that some of the nation’s most renowned museums have exploited loopholes in the law to hold on to Native American human remains and related items.

D. Rae Gould, executive director of the Native American and Indigenous Studies Initiative at Brown University and a member of the Hassanamisco Band of Nipmucs of Massachusetts, said it’s common for institutions to say they can’t figure out who they should return remains and items to. Gould said such institutions often “use arbitrary analysis they call science to say there’s no cultural affiliation with modern day tribes.”

Cinnamon Catlin-Legutko, who until her death earlier this month was the director of the Illinois State Museum, said that using the year 1673 to decide whether tribes have connections to the human remains and can reclaim them is “not OK.” Many museums, including ISM, “have been superb at avoiding the spirit of the law,” she said.

A new generation of leadership at the museum aims to reverse its abysmal repatriation record. Curator of Anthropology Brooke Morgan said the institution no longer privileges archaeological and historical evidence over tribal knowledge. She and Pappenfort hope to set a new precedent for how the museum handles repatriations — one that relies less on finding a scientific link to prove a tribe’s cultural connections to ancestral remains.

“Cultural affiliation is kind of a moot point,” said Pappenfort, who joined Dickson Mounds Museum as a curator of anthropology in 2021 and now serves as its interim director. “The reality is many tribes can lay claim to affiliation.”

Logan Pappenfort, a member of the Peoria Tribe of Indians of Oklahoma and interim director at the Dickson Mounds Museum, is part of a group of people who have started to confront the history of the museum, including its lack of repatriations. (Sky Hopinka for ProPublica)

Pappenfort is the first tribal citizen on the museum’s payroll and a member of the Peoria Tribe of Indians of Oklahoma, which includes descendants of more than a dozen tribes that collectively were known as the Illinois.

Growing up in Kansas City, Kansas, Pappenfort said kids teased him when he would tell them he was Native American. He could not be an Indian, they would say, because Indians are extinct.

In college, he came across a photograph in a textbook of the exposed burials at Dickson Mounds Museum. He realized the kids who taunted him in grade school had something in common with the Dicksons: “They weren’t actually looking at my ancestors as people.”

That was on his mind as he drove across the state line into Illinois.

“My ancestors put me here,” Pappenfort said. “They came from Illinois, and it’s my responsibility to do everything I can to get them where they’re supposed to be again.”

A tent covers remains at a site excavated by Don Dickson in 1927. (Illinois Digital Archive, Illinois State Library) The Land and Its History

High on a limestone bluff overlooking the Mississippi River, two painted monsters stared down at the Frenchmen below. Jesuit priest Jacques Marquette described them in his journal as having men’s faces, with horns on their heads, scales on their bodies and long tails that ended in fins.

“These two monsters are so well painted that we cannot believe that any savage is their author; for good painters in France would find it difficult to paint so well,” Marquette wrote upon arriving in what he called the Illinois Country in 1673.

Marquette and fur trader Louis Jolliet had entered a land that Indigenous people had inhabited for more than 12,000 years. More than 30 federally recognized tribes can trace their ancestry or cultural connections to the land that is now the state of Illinois. At the time of the Frenchmen’s arrival, though, most of that land was under the control of nearly a dozen tribes — including the Kaskaskia, Cahokia, Michigamea, Peoria and Tamaroa — who lived along the Mississippi and Illinois Rivers.

Tribes With Ties to Illinois

Absentee Shawnee Tribe of Indians of Oklahoma • Citizen Potawatomi Nation, Oklahoma • Delaware Nation, Oklahoma • Eastern Shawnee Tribe of Oklahoma • Forest County Potawatomi Community, Wisconsin • Hannahville Indian Community, Michigan • Ho-Chunk Nation, Wisconsin • Iowa Tribe of Kansas and Nebraska • Iowa Tribe of Oklahoma • Kaw Nation, Oklahoma • Kickapoo Traditional Tribe of Texas • Kickapoo Tribe of Indians of the Kickapoo Reservation in Kansas • Kickapoo Tribe of Oklahoma • Little Traverse Bay Bands of Odawa Indians, Michigan • Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians of Michigan • Menominee Indian Tribe of Wisconsin • Miami Tribe of Oklahoma • Nottawaseppi Huron Band Potawatomi, Michigan • Osage Nation • Omaha Tribe of Nebraska • Otoe-Missouria Tribe • Peoria Tribe of Indians of Oklahoma • Pokagon Band of Potawatomi • Ponca Tribe of Indians of Oklahoma • Ponca Tribe of Nebraska • Prairie Band Potawatomi Nation • Quapaw Nation, Oklahoma • Sac and Fox Nation of Missouri in Kansas and Nebraska • Sac and Fox Nation, Oklahoma • Sac & Fox Tribe of the Mississippi in Iowa • Santee Sioux Nation, Nebraska • Seneca-Cayuga Nation • Shawnee Tribe, Oklahoma • Winnebago Tribe of Nebraska

Some of these tribes accommodated Marquette and Jolliet as the pair traveled through the Mississippi and Illinois River valleys in the summer of 1673 aiming to introduce Indigenous people to Catholicism and expand the French trading empire.

Marquette and Jolliet would have passed what today is called Dickson Mounds. There, a winding little tributary called the Spoon River floods into the slow waters of the Illinois and transforms the prairie into a Midwestern Everglades, teeming with life.

Marquette and Jolliet left no records of people who may have lived or camped at that spot in 1673, but archaeological research indicates that between 1100 and 1350, thousands of people lived in the Central Illinois River Valley — many in a large town near Dickson Mounds and others in smaller communities nearby.

The burial mounds that remain are testament to their lives, explained Pappenfort. A massive network of Indigenous communities stretched from Florida to Michigan’s upper peninsula. They shared similar ways of life, such as trading and farming, and traditions that included burying the dead in large earthen platforms. The mounds were built by moving thousands of pounds of dirt, basket by basket, often over many generations, said Pappenfort.

The Dickson Mounds Museum (Sky Hopinka for ProPublica)

Between 1350 and 1450, something changed. Groups began to move out of centralized communities, including the area around Dickson Mounds. About 150 miles to the south, Cahokia, a multicultural metropolis that’s sometimes called America’s first city, also experienced relatively fast population loss. Archaeologists have estimated that at its peak, around the year 1200, more than 20,000 people lived in Cahokia and its outskirts.

Recent research suggests a changing climate that made growing maize difficult might have forced people to leave Cahokia. But there’s no widely accepted explanation for why they left or where they went.

In the 1800s, a racist myth that the mounds were too sophisticated to have been built by the local Indigenous people led some to theorize that an extinct race of “mound-builders” had once inhabited the area. Though it was disproved as early as 1884, the remnants of that myth, in tandem with the unexplained depopulation of Cahokia, gave rise to an oft-repeated story that the people responsible for the mounds throughout Illinois had “vanished” or that their culture “ceased to exist.

Then Marquette and Jolliet showed up in 1673. That summer, Marquette chronicled the locations and customs of various tribal groups, including the Peoria and Kaskaskia. Archaeologists and anthropologists rely on the information in Marquette’s journals, but the missionary didn’t record the histories of any tribe he encountered. More than 300 years later, in 1995, some tribes would tell the Illinois State Museum curators that their oral histories describe their ancestors as mound-building people. But because that history wasn’t written down, the museum dismissed it.

The year 1673 also marked the beginning of the end of tribally held lands in what is now the state of Illinois. By the 1830s, after Indigenous people were devastated by warfare and disease brought by Europeans — and after some tribes resisted ceding the land of their ancestors — the U.S. government gave Native people in Illinois two options: move or perish.

Illinois Was Built on Native Land

Maps of the land acquired through treaties show the rapid takeover of tribal land in the early 1800s.

(Source: “Indian Land Cessions in the United States” via the U.S. Department of Agriculture, Illinois Geospatial Clearinghouse, Natural Earth. Map by Shane Loeffler.)

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White settlers soon arrived in larger numbers. Some, like the Dicksons, dug up burial mounds and speculated about who had built them. Amateurs were later joined by professional archaeologists and anthropologists.

In the 1920s and 1930s, Fay-Cooper Cole and Thorne Deuel of the University of Chicago set up a field school just north of Dickson Mounds on land owned by Joy Morton, the founder of Morton Salt. Cole and Deuel lamented that many mounds had been leveled and looted in Fulton County. “Nearly every village had its local collection from the ‘Mound Builders,’” they wrote. “Mounds were looted and valuable data relating to the prehistory of the state were destroyed.” They still surveyed roughly 900 archaeological sites in the area, prompting their development of a cultural classification system that archaeologists still use today.

“Their field school at the Morton site is often referred to as the ‘Birthplace of American Archaeology,’” wrote a former Dickson Mounds Museum curator, Alan D. Harn, in a 2010 paper.

The Dickson family burial mound exhibit in the 1940s (Illinois Digital Archive, Illinois State Library)

Federal records show that the remains of at least 15,461 Native Americans were excavated in Illinois, more than in any other state. Most are still in the state, and many are property of the Illinois State Museum.

When the Illinois State Museum opened its Dickson Mounds branch in 1972, an elevated pathway guided guests around Don Dickson’s excavation. Below, exposed and broken, were the remains of a fetus with a shell pendant on her chest; two men in their mid-40s lay beside her. A woman, about 20 years old, rested with her left hand on her pelvis. She once wore a necklace of shells, but at some point it was stolen. Someone misplaced her mandible. A man lay with two fishing hooks made of bone, and another had five arrows between his knees. A 2-year-old child was buried with a rattle made of mussel shells, but that, too, was lost.

Pappenfort stops at the Ogden-Fettie Mound, a burial site near the museum. (Sky Hopinka for ProPublica) Inviting Tribes Back to Illinois

In the fall of 1995, the Illinois State Museum invited tribes from across the Midwest to discuss the remains in its possession. The Native American Graves Protection and Repatriation Act required institutions receiving federal funds to inventory their Native American holdings by the end of that year; they were then to consult with tribes about how to return the material to the appropriate groups.

Leaders of tribes in Oklahoma, Wisconsin, Michigan, Kansas, Nebraska and Iowa were invited to Dickson Mounds Museum. Some tribal members were returning to Illinois for the first time since their ancestors had been forcibly relocated.

Archaeologist Duane Esarey, who retired from the museum in 2021, said he remembers many on staff felt nervous before the meeting because it would be their first time speaking with the tribes.

Johnathon Buffalo, historic preservation director of the Sac & Fox Tribe of the Mississippi in Iowa, was skeptical that the museum actually wanted to return anything to the tribes. Images of the Dickson Mounds burial exhibit and the controversy over its recent closure were fresh in his mind.

A protest against the museum’s open burials in the early 1990s (Illinois Digital Archive, Illinois State Library)

In early 1990, the museum’s leadership had recommended that the exhibit close, acknowledging changing norms and anticipating the passage of NAGPRA later that year. Illinois Gov. James Thompson agreed, then reversed his decision, claiming the closure would harm tourism while arguing that Native American tribes had no special say in the matter because they weren’t related to the ancient people who built Dickson Mounds. Protesters swarmed the museum, and some jumped into the pit with shovels to rebury the ancestors. The debacle, which drew the attention of national news outlets, ended in 1992, when a new governor, Jim Edgar, allowed the exhibit to close.

In his office at the tribe’s headquarters in Tama, Iowa, last summer, Buffalo flipped through a packet of information that the Illinois State Museum had given to tribal members during the 1995 consultations. He read off the names that the museum uses to divide up thousands of years of history — the archaic period, woodland period, Mississippian, prehistoric — and arrived at the number of human remains in the museum collection that it said were from the historic era, beginning in 1673. There were 88.

The museum had preemptively designated the rest of the remains — at least 5,450 ancestors excavated from at least 55 counties in Illinois — as culturally unidentifiable. All of them were dated to before 1673.

Bruce McMillan, director of the Illinois State Museum from 1977 to 2005, told ProPublica the museum did that because “it’s very difficult — regardless of what the NAGPRA regulations say — to trace things prehistorically,” meaning before there are written records. He said that during the prehistoric era, between roughly 1450 and 1673, many Native groups in the Illinois region were “fissioning, coalescing, and migrating” because of war and disease, and that they were constantly reorganizing.

“We wanted to make sure that if remains and associated objects prior to the time [were going to be repatriated], that we had some kind of written records,” McMillan said. “We wanted to make sure that they were going to the correct group or tribe.”

At least two tribes claimed during the 1995 consultations that oral histories traced their ancestry in Illinois to mound-building cultures. And Robert Warren, the museum’s curator of anthropology at the time, wrote in a report to the National Park Service that the museum was open to evidence that might counter its previous conclusions. But when the museum finished its four months of consultations with six tribal nations, curators did not change a single determination of cultural affiliation.

No tribe formally requested the return of remains that dated to before 1673. Many of the tribes invited to the museum viewed the ancestors as their collective responsibility. Connecting the remains to a specific tribe mattered less than ensuring they were reburied in the areas they’d been taken from. Every tribal leader told the museum that their ancestors should be reburied in Illinois.

Johnathon Buffalo holds a photograph of a group invited to the museum’s 1995 consultations with tribes. (Sky Hopinka for ProPublica)

The conversations did lead to the Illinois State Museum returning the remains of at least 117 ancestors to the Peoria Tribe of Indians of Oklahoma. The museum also transferred ownership of more than 32,000 funerary objects to the tribe, though the museum continues to hold the objects on the tribe’s behalf. (At the time of the repatriation in 1997, the tribe lacked the resources to appropriately store the objects.) Those human remains and funerary objects had been excavated from several sites throughout the state, not including Dickson Mounds, and all dated to after 1673.

The Illinois State Museum submitted reports to the National Park Service and, with that, it had complied with the law. (The museum later submitted a grant proposal to the park service to help fund a reburial facility, but funding was denied.)

And even though every tribe had said during the 1995 consultations that they believed the human remains in the museum’s collections should be reburied in Illinois, the reburial has yet to take place.

“They show us their stuff — our stuff — but it’s a ‘look at it but don’t touch it’ kind of thing,” Buffalo recalled of those early consultations. “And then that’s it. When they close, we leave and we never hear from them again.”

Buffalo points to binders containing information on museums whose inventories he believes include ancestors of the Meskwaki Nation, also known as the Sac & Fox Tribe of the Mississippi in Iowa. (Sky Hopinka for ProPublica) Research Instead of Repatriation

In the late 1960s, the state excavated more human remains from Dickson Mounds to make way for the museum. Archaeologists found at least 10 burial mounds and two cemeteries, unearthing the remains of more than 800 people.

All of them were sent to Massachusetts. George Armelagos, a new assistant professor recruited by the University of Massachusetts, Amherst to help start its anthropology Ph.D. program, had requested them for research.

Anthropologists hoped that the remains, which were on loan from the Illinois State Museum, would offer a window into how people who lived for hundreds of years in roughly the same spot adapted to the expansion of agriculture and population growth.

George Armelagos, second from left, accepts a teaching award at the University of Massachusetts, Amherst in 1973. (Robert S. Cox Special Collections and University Archives Research Center, UMass Amherst Libraries)

Over the next 20 years, Armelagos published at least 15 papers based on his research using the remains, and his students produced even more. Their work on the Dickson Mounds ancestors helped convince the field that Native American remains had scientific value (before then, many were kept in storage but not examined), and by 1990, the collection was dubbed by prominent anthropologists as “one of the most intensively studied skeletal samples in North America.”

“Unfortunately, in retrospect, I think there just weren’t many conversations about who were the likely descendant communities of these individuals,” said Alan Goodman, one of Armelagos’ students who now teaches biological anthropology at Hampshire College and previously served as president of the American Anthropological Association.

After the passage of NAGPRA, the museum continued to allow scientific research on human remains it had deemed culturally unidentifiable. The law does not prohibit it, nor does it require that tribes consent.

ProPublica obtained records showing the museum approved almost every request to research its Dickson Mounds collections from 1990 to 2018. Museum leaders hoped studies would lead to groundbreaking findings and bring prestige to the institutions.

So, when the museum received a request in 1991 from Anne C. Stone, a Ph.D. student at Pennsylvania State University, the institution’s leadership was interested. Stone wanted to extract DNA from the ribs of 43 people excavated from Dickson Mounds and compare it to another group buried nearby. The process, according to her proposal, would require freezing bone samples to -112 degrees Fahrenheit, crushing them and soaking the powdered bone in an enzyme.

The museum approved Stone’s request.

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Former Illinois State Museum Anthropology Curator Michael Wiant told ProPublica that at the time he believed DNA might answer big questions about migration and genetic continuity. Wiant said he hoped it also “would give tribal people a better sense of their history” and add to conversations about who may be culturally connected to people who lived near Dickson Mounds 1,000 years ago.

Wiant said that, in hindsight, tribal leaders should have been involved in conversations about using the remains for research.

Stone kept the remains for seven years. The museum approved her requests to experiment with different DNA extraction methods, and even to travel abroad with the samples. But none of the methods she tried were successful.

In an interview, Stone, who now runs an anthropological genetics lab at Arizona State University and is a member of the National Academy of Sciences, explained that at the time, methods of extracting ancient DNA, or aDNA, were fairly new and far more destructive than current methods.

Today, she said, any of her research that involves destructive analysis is done in consultation with descendant communities.

In 2010, a new rule was added to the federal repatriation law that created a pathway for tribes to bring their ancestors home without establishing a cultural affiliation. It also required institutions to consult with tribes about “culturally unidentifiable” remains. Professional organizations, including the Society for American Archaeology, opposed the rule, as did the Illinois State Museum.

A sign at the Ogden-Fettie Mound warns that visitors are banned from digging and collecting artifacts. (Sky Hopinka for ProPublica)

“The Rule would deprive the entire world of valuable scientific knowledge and historical information on biological and cultural heritage, diversity, and change,” wrote Bonnie Styles, then-director of the Illinois State Museum, in public comments.

Under Styles’ leadership, from 2005 to 2015, records show that the Illinois State Museum repatriated the remains of only seven Native Americans. Records show she allowed Dickson Mounds remains to be loaned to various institutions and approved destructive analysis requests from her own staff until as recently as 2014.

In a written statement, Styles said that during her tenure “these actions were not disallowed by NAGPRA and its associated rules” and that the museum followed its board-approved policies on collection management, the treatment and disposition of human remains, and destructive analysis.

“The Illinois State Museum did not willfully ignore NAGPRA and associated rules in order to hold onto collections of culturally unidentified human remains,” said Styles.

“Home No Matter What”

In a wooden crate from Piggly Wiggly, Pappenfort keeps letters written by his great-great-great-grandfather George Washington Finley. Finley was Piankashaw, an Illinois people with roots in the Miami tribe that merged with the Wea, Peoria and Kaskaskia in the 1850s.

Finley’s first language was his native one, Pappenfort said, and he was one of the few survivors of removal to record some of the Miami-Illinois language and oral histories his parents and elders shared with him. As Pappenfort deliberated in the summer of 2021 whether to accept the job as curator of Dickson Mounds Museum, he thought about what Finley would want him to do. He read the letters to help him decide.

Accepting the job would mean moving to a place where the scars of forced removal are still visible on the land: dozens of burial mounds, many of them excavated or disturbed, surround the museum. But leaving Oklahoma would also mean reconnecting with a place he felt he’d lost.

“Two hundred years,” said Pappenfort from his desk at Dickson Mounds Museum, “that’s how long it took to have more of an active voice in Illinois.”

For the first time in more than 25 years, the museum has again entered formal consultations with tribes about repatriation. This time, the museum is asking different questions. Instead of trying to answer who, exactly, is the right tribe to repatriate to, the museum is asking tribes to lead in deciding what’s the best way to right a wrong.

“Our institutional will is to get the ancestors home no matter what,” Pappenfort said.

So far, conversations with tribes have led to reuniting many ancestors’ remains with the belongings they were buried with — a task that required a recall of all loans and a moratorium on new research and imaging.

Then Dickson Mounds began cleaning up its own house.

An exhibit at the Dickson Mounds Museum shows spaces where some objects have been removed from view. (Sky Hopinka for ProPublica)

In September 2021, the museum closed its most popular archaeology exhibit. For weeks, Pappenfort worked with the museum’s then-director Esarey and anthropology curator Morgan to disassemble each display case and remove funerary objects that tribes had requested not be displayed. When they were finished, about 40% of the exhibit was gone.

Pappenfort and Morgan found solace in the work. To Esarey, who earlier in his career had excavated some of the human remains and pulled out funerary objects to put on display, it was the bittersweet dismantling of a world he helped build.

The objects from 75 years of Illinois excavations had guided visitors through a categorized chronology as archaeologists understand it: from the archaic period, to the woodland, the Mississippian, the prehistoric and, following the arrival of Europeans in 1673, the historic. Archaeologists can spend decades seeking to connect the past and the present, Esarey realized, but they’ll always find more questions than answers. Doing the work of repatriation required a willingness to let go: Finding the “right” answer mattered less than doing what is right by tribal nations.

“There’s nothing special about 1673,” said Esarey. “It’s all history.”

The museum intends to repatriate about 1,100 ancestors from Dickson Mounds, including those excavated in the 1920s whose gravesites are still covered by cedar planks in the south wing. If the effort is successful, the remains will be reclaimed by a coalition of more than two dozen tribes with ancestral lands in Illinois. It would be the largest repatriation in the state’s history.

Until then the door to the south wing is locked.

An emptied display case at the Dickson Mounds Museum (Sky Hopinka for ProPublica)

Ash Ngu contributed data analysis.

by Logan Jaffe

What to Know About TurboTax Before You File Your Taxes This Year

2 years 2 months ago

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Under the Free File agreement, Americans who make less than $73,000 per year should be able to file their taxes for free with one of the tax preparation companies that partners with the IRS. But this program has been historically underutilized, with just 4% of eligible Americans filing for free in 2021.

The story of the Free File program is long and twisting, and it can seem more like a fight against free tax filing than a fight for it. One of the biggest players is Intuit, the maker of TurboTax, one of the largest tax preparation software companies in the country.

ProPublica has reported on Intuit and the Free File program since 2013. Here’s what we’ve found.

The Truth About TurboTax

In 2002, Intuit, H&R Block and other tax prep companies signed a deal with the IRS to provide free tax filing services to millions of Americans. In return, the IRS agreed it would not create its own tax filing system that could compete with the tax prep companies.

A government-run tax filing system, often known as return-free filing, is already a reality in many countries around the world. With a return-free filing system, the government fills out the tax forms with the information it already has, and taxpayers simply have to review the forms for accuracy. This is not the case in the U.S.

Switching to such a system would devastate tax prep company profits. That’s why Intuit and other members of the industry spent millions through the years lobbying to preserve the Free File agreement, particularly the part that restricts the IRS from creating its own free filing system.

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That’s not all Intuit did to limit the scope of Free File. Intuit purposefully suppressed its own Free File product. It added website code to block its Free File page from showing up in search engines and used manipulative marketing patterns to trick customers into paying for TurboTax even when they qualified for Free File. It later removed the code.

Internal documents previously obtained by ProPublica show these strategies were intentional on the part of Intuit and H&R Block.

In previous statements, Intuit and H&R Block maintained that they support and encourage free tax filing options through Free File and other avenues within their businesses.

ProPublica’s Reporting Impact

As ProPublica reported on Intuit and the Free File program, government officials took note.

When ProPublica pointed out that codifying the existing Free File agreement into law would permanently bar the IRS from creating its own free filing system, the bill got new scrutiny in Congress and the restriction on an IRS-created filing system was scrapped.

Senior IRS leadership and a New York state regulator began investigating Intuit and the Free File program. The Federal Trade Commission started investigating Intuit too, looking into the company’s allegedly deceptive marketing practices.

Ultimately, Intuit was found to have tricked millions of Americans into paying to file their taxes when they should have been able to do so for free. The company reached a $141 million dollar settlement in May 2022 in a case led by New York Attorney General Letitia James and covering all 50 states and the District of Columbia. (Intuit did not admit any wrongdoing in the settlement.) More than 4 million people are expected to receive money as part of the settlement. It’s not clear when the payments will be made.

The Current State of Free File

Following ProPublica’s reporting in 2019, the IRS reformed the Free File program. It barred companies from using deceptive practices to deter taxpayers from using Free File and removed the prohibition on the IRS creating its own tax filing system.

Intuit left the Free File program in October 2021, citing a desire to innovate beyond what the agreement would allow. In March 2022, during the first tax season in which TurboTax did not participate in the Free File program, the FTC sued Intuit over deceptive ads for its so-called “Free” edition. Intuit disputed the FTC’s arguments but agreed to pull the ads in question for the remainder of tax season.

After both Intuit and H&R Block left the Free File program, the future of the program was unclear. It’s still difficult to find truly free tax filing options. The IRS created a tool to help you find this year’s Free File options.

More changes may be on the horizon for Free File. In August 2022, IRS received a mandate to look into creating a public filing system, with $15 million allocated to the study.

Justin Elliot and Paul Kiel contributed reporting.

by Sophia Kovatch

Nevada’s New Governor Vilified Lobbyist’s Influence in COVID Lab Scandal, Then Asked Him to Help With Budget

2 years 2 months ago

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During his contentious campaign to become Nevada governor, Joe Lombardo accused the Democratic incumbent of catering to the family of a donor and their lobbyist who helped an error-prone COVID-19 testing lab get licensed in the state.

Shortly after he won the race, Lombardo, a Republican, quietly turned to that same lobbyist for help building the state budget, giving him access to confidential documents and putting him in a position that allowed him to advocate for state funding sought by his clients.

Lobbyist Mike Willden’s name doesn’t appear on the list of people Lombardo appointed to his transition team as he takes the reins from former Gov. Steve Sisolak. But emails and budget documents obtained by ProPublica show Willden was invited to budget meetings with each of Lombardo’s department directors, provided advice on health care spending and was involved in discussions on changes to the spending plan worth nearly $30 million a year to his clients — though not all of those changes were ultimately approved.

He also was involved in discussions on an effort to extend a nearly $600 million contract for one of his clients to continue administering Nevada’s Medicaid program.

Willden has expertise in state government, including the complex Medicaid budget. He served as chief of staff to the last Republican governor, after decades working for the Department of Health and Human Services, including 13 years as director.

The owner of the lobbying firm that employs Willden said in a statement that he volunteered hundreds of hours to help Lombardo’s transition team with the budget and that none of his clients “materially benefited from Mike’s involvement.”

“He has been involved in five gubernatorial transitions and has played a vital role in the preparation of more than 20 budgets,” said Richard Perkins, owner of The Perkins Company and a former state assemblyman. “He has unique expertise, experience and integrity. His involvement is especially critical, in the incredibly compressed time frame” a new governor has to prepare a budget.

“I know that cynicism and skepticism dominate our political and governing environment these days, however, it’s a shame that a long time, trusted public servant, like Mike Wilden, is criticized, and not truly appreciated,” Perkins added.

Willden played a central role in a controversy that rocked the final year of Sisolak’s administration. In late 2021, Willden leaned on his relationships with state regulators and Sisolak’s office to speed the licensing of COVID-19 testing laboratory Northshore Clinical.

Last year, ProPublica detailed serious problems with the lab’s operations in Nevada, including questionable billing practices and a high rate of false negative results. At the time, Willden said he was trying to help the state address a critical shortage in testing by assisting Northshore’s two Nevada representatives, who were family friends of Sisolak’s. Willden said he wasn’t paid by the company or its representatives and was unaware of problems with the lab’s services.

During the gubernatorial race, Lombardo and Republicans spent heavily on advertising that used the Northshore debacle to portray Sisolak as corrupt and accuse him of jeopardizing the safety of Nevadans to enrich his friends. Lombardo described it as the “biggest scandal in our history” on Twitter, and his campaign dubbed Sisolak “Northshore Steve.”

Sisolak denied showing favoritism toward the company and said his administration had acted quickly once problems with Northshore’s tests became known.

Lombardo’s chief of staff, Ben Kieckhefer, said the campaign attacks weren’t on his mind when Willden was asked to help prepare the $11.4 billion, two-year budget, which the governor recommended to the Legislature this week. Under state law, Lombardo had three weeks from the time he took office to complete a proposed spending plan.

“My thought was we needed to get a budget built. That was my focus,” Kieckhefer said. He dismissed the idea that Willden’s involvement could open Lombardo to the same criticisms the Republican leveled against Sisolak.

“You’d be hard-pressed to find someone who knows more about the Medicaid budget than Mike,” Kieckhefer said. “Coping with potential conflicts? That’s on me, not on Mike.”

Documents show Willden worked with Kieckhefer, as well as the incoming deputy chief of staff and two members of the transition team: state Senate Minority Leader Heidi Gansert and Jeremy Aguero, an economic analyst with clients who do business with state and local governments in Nevada. The group held budget meetings with each of the state’s department directors to review funding requests, raise issues and decide what changes should be made to the draft budget from the previous administration.

Kieckhefer said Willden was already part of the transition team’s budget subcommittee when Kieckhefer was named chief of staff and took over management of the budget process.

The documents obtained by ProPublica include an “open issues list” drawn up by the working group in late December. It shows that issues affecting three of Willden’s clients featured heavily in the budget discussion.

For example, Willden lobbies for the Nevada Health Care Association and Center for Assisted Living, an industry group for nursing homes and assisted living facilities. That industry stands to lose $24 million a year in extra Medicaid funding related to the pandemic that’s expected to expire when the public health emergency ends. The document states it’s the industry’s “desire not to experience payment reductions.”

The document also highlights a requested rate increase worth $4.5 million a year to providers of early childhood intervention services. Willden is a paid lobbyist for the Early Intervention Community Providers Association.

The largest issue, and perhaps the thorniest, is a lucrative contract to administer the state’s Medicaid program, which provides health insurance for more than 900,000 lower-income Nevadans. Gainwell Technologies, which holds the $558 million contract, is one of Willden’s clients. The contract expires in June, and efforts to renew it have stalled.

“Immediate action needs to be taken to negotiate a contract extension with Gainwell or there will be no contracted vendor in place as of July 1, 2023,” the document says.

Kieckhefer said he did not include the request for additional money for nursing homes in the recommended budget but did include the rate increase for early intervention providers. That increase was listed as a top priority of the department director before Willden’s involvement, Kieckhefer said. The Gainwell contract has no bearing on the state budget but was flagged as a serious issue that needs attention, he added.

Kieckhefer said Willden was “always forthcoming about who he represented” during his work with the transition team. He said he wasn’t too concerned that Willden’s participation may give his clients an advantage.

“My job is to weigh all the considerations and then act in the way I think is in the best interest of Gov. Lombardo and his priorities,” Kieckhefer said. “I rely on my previous experience and taking counsel from people who also may have experience one way or another. Ultimately, it’s me and the governor making decisions about what’s included in the budget.”

by Anjeanette Damon

Jordan, Latvia and Israel Shake Up Diplomatic Corps After “Shadow Diplomats” Investigation

2 years 2 months ago

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Three more countries have announced reviews of honorary consuls after an investigation by the International Consortium of Investigative Journalists and ProPublica revealed widespread wrongdoing by members of the little-known system of volunteer diplomats.

Jordan, Latvia and Israel have either terminated the status of honorary consuls operating within their borders or ordered reviews of those currently serving.

Meanwhile, reporters at ICIJ media partner El Periódico obtained an exclusive police report with new details about a money laundering probe of honorary consuls in Spain.

Last year, ICIJ and ProPublica, in collaboration with 60 media partners, published “Shadow Diplomats,” an investigation revealing that honorary consuls have repeatedly exploited diplomatic status to threaten international security and the rule of law. The investigation found at least 500 current and former honorary consuls who have been accused of crimes or embroiled in controversy — the majority while they held their posts.

Under international treaty, honorary consuls receive legal protections and privileges that can include immunity from lawsuits and the ability to move consular bags across borders without inspection.

So far, the investigation has prompted action in nine countries. Shortly before publication of our first story and after questions from reporters, Germany and Austria announced the dismissal of one honorary consul in Brazil. After publication, Finland, Brazil and Paraguay promptly announced reforms to their systems of appointing and vetting the volunteer diplomats.

More recently, government ministers in Jordan approved the termination of its honorary consul in Honduras, millionaire businessman Schucry Kafie, according to a Jordanian official.

Kafie had served as honorary consul for Jordan in Honduras for more than three decades. In 2016, a judge cited Kafie’s diplomatic status as honorary consul in allowing the millionaire to avoid detention after an arrest for fraud, the “Shadow Diplomats” investigation found.

Jordan’s council of ministers approved the termination of six honorary consuls, including Kafie, as part of a broader reassessment, according to the official.

The Honduran Foreign Ministry told ICIJ media partner Contra Corriente Honduras that it has not received official notification of the decision. Kafie could not be reached for comment. Previously, Kafie has denied wrongdoing and told ICIJ and ProPublica that the criminal charges, which were dismissed, were politically motivated.

In Latvia, the Foreign Ministry announced an investigation after the project revealed the honorary consul representing Indonesia had once tried to claim diplomatic immunity when facing charges of assaulting his wife. The honorary consul, Valdis Tilgalis, received a fine, records show.

“In light of the information received, the ministry shall look into the matter in depth,” said a spokesperson for the Ministry of Foreign Affairs, adding that it became aware of the assault charges only after receiving questions from reporters. “The ministry is currently vetting the matter in collaboration with law enforcement authorities.”

Tilgalis told ICIJ and ProPublica that the charges against him were untrue and that his attorney told him the case would soon be forgotten. Tilgalis told ICIJ that his lawyer had suggested that he mention his honorary consul status, which could give him immunity from administrative proceedings. “Unfortunately, when the case was already in process, the status of honorary consul did not help,” Tilgalis said.

In Israel, the Ministry of Foreign Affairs launched a review after reporters identified consuls facing corruption allegations and other criminal probes.

ICIJ media partner Shomrim obtained public records showing that Israel requires honorary consuls representing foreign countries inside its borders to be “free from any blemish of moral purity.” Honorary consuls appointed by Israel overseas, records show, may be dismissed if they are found to have “behaved in a manner that is not appropriate.”

Despite the policy governing representatives in foreign countries, the “Shadow Diplomats” investigation found Israel has recognized and appointed one honorary consul to represent it who had previously been convicted of fraud and others who have faced charges of corruption, money laundering, diamond trafficking and rape.

The Foreign Ministry announced it would examine the status of two current honorary consuls, one who was a key witness in a vast corruption case in Africa and another who recently used his honorary consul status to prevent police in Italy from searching his home as part of an illegal political financing probe.

In Spain, the police report obtained by El Periódico detailed links between honorary consuls and Simón Montero Jodorovich, a member of a prominent Barcelona family who is suspected of trafficking drugs. Barcelona police believe honorary consuls helped move money for him.

“We can conclude that Mr. Simón Montero Jodorovich, directly or indirectly, paid an amount of more than 20,200 euros in cash to obtain favors from honorary consuls,” police wrote in the latest report. “Payments would be in consideration for managing contacts with representatives of public administrations, since their position as honorary consuls allowed them direct access to high civil or political positions.”

The consuls — who have represented countries in Africa and Europe — deny wrongdoing and have not been charged. An attorney for Jodorovich previously told ICIJ and ProPublica that his client is innocent and “has never manipulated any consul.”

by Will Fitzgibbon, International Consortium of Investigative Journalists

The Tests Are Vital. But Congress Decided That Regulation Is Not.

2 years 2 months ago

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A number of tests used by patients to make major health care decisions have once again escaped regulation by the Food and Drug Administration, following intensive lobbying on behalf of test-makers, professional associations and academic medical centers.

For years, experts have warned about the dangers of so-called laboratory-developed tests — including certain cancer screenings and diagnostic tests for everything from Lyme disease to autism — reaching patients without FDA oversight.

ProPublica recently published an investigation about popular prenatal screenings that fall into this category, which one expert described as an unregulated “Wild West.” Upwards of half of all pregnant people now receive one of these prenatal screenings. (We also have put together a guide for expecting parents.)

Congress was on the cusp of finally creating a pathway for the FDA to scrutinize these tests, as it does for many other common commercial tests. For much of 2022, the VALID Act seemed on track for passage — and then, in the final weeks of the year, legislators backed away.

The VALID Act, which had bipartisan support, had been developed after nearly a decade of debate among stakeholders about ways to close a regulatory loophole and clarify the FDA’s role in overseeing the testing industry. The legislation had momentum thanks, in part, to Theranos’ fraudulent blood-testing scandal and the coronavirus pandemic, both of which revealed the possible consequences of unchecked tests reaching patients.

But lawmakers left VALID out of a must-pass end-of-year bill that dealt with a range of spending priorities.

Opponents argued that VALID would have created burdensome regulations for lab-developed tests, or LDTs, stunting essential innovation and flexibility while limiting patient access to health care.

The current approach to lab-developed tests goes back to 1976, when Congress revamped the regulation of medical devices. At the time, the tests were considered low-risk and were not in wide use. Since then, the FDA has effectively exempted this type of lab test from its requirements.

Today, the number and complexity of lab-developed tests has grown. A study by the Pew Charitable Trust said there’s no way of knowing how many are used on patients each year because there are no tracking measures. But Pew estimated that 12,000 labs are likely to use LDTs, many of which process thousands of patient samples each day.

“The needs were getting bigger and bigger, and also the potential risks get bigger and bigger, too,” said Mark McClellan, who served as the head of both the FDA and the Centers for Medicare and Medicaid Services during President George W. Bush’s administration. He had urged Congress to pass the bill.

Several people involved in bill negotiations told ProPublica that concern over how it would affect academic labs is what killed it.

“University laboratories and their representatives in Washington put on a full-court press against this,” said Rep. Larry Bucshon, a Republican from Indiana. A former cardiothoracic surgeon, Bucshon co-sponsored VALID in the House, along with Rep. Diana DeGette, Democrat of Colorado.

Bucshon pointed to the Association of American Medical Colleges and the Association for Molecular Pathology as particularly influential forces that persuaded his colleagues to leave VALID out of the end-of-year bill. According to disclosure forms, AAMC spent at least $300,000 on lobbying activities that included the VALID Act in 2022, while AMP spent at least $189,000. Since 2018, AMP spent at least $957,000 on lobbying activities that included VALID.

AMP had also urged academic lab leaders to reach out to elected officials about this issue. It shared sample letters for them to sign and send, and it organized a “Virtual Advocacy Day,” where AMP scheduled meetings between members and their representatives in Washington, providing them with talking points, background information and best practices.

“Here’s the thing,” Bucshon said. “The academic medical centers, and big medical centers, are in every state.” They employ a lot of people and have significant economic impact in every lawmaker’s turf, he said, “and so that gives them a pretty big voice.”

Heather Pierce, AAMC’s senior director for science policy and regulatory counsel, said that many academic medical centers make and use a number of lab-developed tests, and they typically don’t have the infrastructure or staff to handle the type of FDA oversight set out by VALID. FDA review, she said, would also add time to the process of developing tests for patients with urgent needs.

The makers of prenatal screening tests weighed in on the bill, too. Illumina, for example, spent more than $3 million over two quarters of 2022 on lobbying activities that included provisions of the VALID Act. And since 2019, Invitae paid at least $950,500 on lobbying activities that included VALID.

“While we support efforts to make sure that lab-developed testing is high quality, Invitae believes that the VALID Act would increase the cost of testing, slow innovation, and force consolidation in the industry while imposing many requirements that do little to improve patient care,” said a spokesperson in an email.

While some proponents of the bill still hold out hope for the VALID Act, others said it’s unlikely to get traction again anytime soon. Several of those involved said they anticipate the FDA, which has long claimed jurisdiction over the tests, will try to use its current powers to take direct action, though that will likely take more time and could face litigation from opponents.

“While we stand ready to work with Congress, we are considering all options,” an FDA press officer said in a statement. “One of those options is administrative action, which could include rulemaking.”

Speaking at a trade conference in October, FDA Commissioner Robert Califf said that going it alone is “not something we want to do, because having a clear law passed leads to the best situation.” But, he said, if nothing passes, “we also can’t stand by.”

Current and former FDA officials have expressed befuddlement at how difficult it has been to regulate these tests. “There’s almost a point of, what do I need to do?” Jeff Shuren, director of the FDA’s Center for Devices and Radiological Health, said to a trade journal in October. “Do I need a pile of dead bodies before somebody says enough is enough?”

Some opponents of VALID acknowledge that lab testing reform is needed. But they said it should be done without involving the FDA. AMP’s proposed policy, for example, would update the existing oversight system under the Centers for Medicaid and Medicare, which reviews lab operations.

Sen. Rand Paul, a Republican from Kentucky and a former physician, introduced an alternative bill that would do just this, dubbed the VITAL Act. An aide to Paul said the issue came to his attention after AMP approached him about it several years ago. Paul is expected to re-introduce the VITAL Act this year.

While the Centers for Medicaid and Medicare monitor the quality standards in labs, no federal agency checks to make sure lab-developed tests work the way they claim to before they reach patients; similarly, no agency vets the marketing before the tests are sold. Companies aren’t required to publicly report so-called adverse events — incidents that happen when the tests get it wrong. And no federal agency has recall authority.

The VALID Act would have phased in the FDA review process over time, with the agency evaluating only high-risk tests — ones where an inaccurate result could lead to serious harm.

Momentum for VALID began to stall in the summer, with a push for an amendment that would exempt academic medical centers.

“I do think that the fact that we couldn’t get it done in July and August really created this opportunity for people to poke holes in the boat, as it were,” said Cara Tenenbaum, a former FDA policy adviser. “This protracted process allowed people who maybe were not otherwise engaged, or fully engaged, to have an outsized effect that I don’t think was in the interest of patients.”

Pew declined to comment on the proceedings. Tenenbaum lobbied in support of VALID on behalf of Pew.

Bucshon said he understands the concerns of regulatory skeptics. “Include me in that category, if it’s unnecessary and inappropriate regulation that stymies innovation and technology advancements,” Bucshon said. “This isn’t one of those situations, in my opinion.”

by Anna Clark

Promoters of Election Lies Also Hyped a Hospital for Ukraine. That Never Happened Either.

2 years 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. This article was published in partnership with The Dallas Morning News.

Gregg Phillips and Catherine Engelbrecht are best known as the election deniers behind True the Vote, a Texas-based nonprofit responsible for amplifying conspiracies that the 2020 presidential election was stolen.

But soon after Russia invaded Ukraine in early 2022, they shifted some of their focus to the war effort, jumping into the fray with an inspiring idea — to bring a mobile hospital to the region to care for victims of the conflict.

They called it The Freedom Hospital.

Phillips solicited donations on conservative media platforms, linked up with American veterans working in Ukraine and traveled to the region in March to meet with local officials. The Freedom Hospital’s website announced it was halfway to its goal of raising $25 million.

“Our recent project, The Freedom Hospital, in Ukraine helps old folks, women and kids near the fight receive healthcare,” Phillips wrote on the conservative social media site Truth Social on June 5.

But that was one of a series of misrepresentations from Phillips and The Freedom Hospital about the operation’s donations and accomplishments, according to a joint investigation by ProPublica and The Dallas Morning News. The Freedom Hospital never got off the ground, and, through their lawyers, Phillips and Engelbrecht now say they never raised significant amounts of money for the project.

They never brought the mobile hospital to the region.

Both Phillips and Engelbrecht declined to answer questions. According to their lawyers, who spoke to ProPublica and the News, the pair’s Ukraine project was a good-faith effort that was unsuccessful.

They said Phillips realized during his March trip to the region that the mission wasn’t feasible because local officials weren’t interested, because potential donors felt the U.S. government was already funneling enough money into the war effort, and because he was worried about the potential for local corruption.

“They pretty much abandoned it all as of, like, April,” Cameron Powell, a partner at Gregor, Wynne, Arney who’s one of the pair’s attorneys, said during a December interview. “Pretty much during his trip, he was deciding it’s probably not going to be feasible.”

Phillips continued to seek donations for months after that and gave the impression that the project was still in the works. The lawyers now say that is because the pair kept pushing forward “with their due diligence for a while longer” and declined to clarify exactly when the project was abandoned.

Asked about Phillips’ statements that The Freedom Hospital had raised half of its $25 million goal, the lawyers said that amount was an in-kind donation from the mobile hospital manufacturer, not cash. The manufacturer's CEO disputed that account, saying it never pledged to make such a donation.

The Freedom Hospital’s Twitter account shared a quote from True the Vote’s Gregg Phillips on April 21, 2022. (Screenshot by ProPublica and The Dallas Morning News)

Created by Engelbrecht in 2010, True the Vote vaulted to national prominence after its work was featured in the 2022 Dinesh D’Souza movie “2000 Mules,” a film that included voter fraud claims that have been widely discredited.

The Ukraine venture is the latest in a string of failed initiatives and misleading statements from Engelbrecht and Phillips. Phillips has been a longtime True the Vote board member, and he and Engelbrecht have raised millions on the promise that they would reveal widespread voter fraud. But they have never supplied any evidence the election was stolen, leaving a trail of disappointed donors and frustrated partners, even as the false election-theft narrative has continued to be a potent force in American politics.

An “Awe-Inspiring” Mission

A former health and human services official for the states of Texas and Mississippi, Phillips was eager to use his expertise to aid the people of Ukraine when Russia invaded, his lawyers said.

The Freedom Hospital’s website, which is now defunct, described the project as “awe-inspiring.” A group of Americans had “banded together” to bring to the region “a state-of-the-art mobile emergency hospital system that can skirt battle zones to treat the wounded,” according to the site’s archive. “Every penny of your donation will be used to save lives,” the website stated, with a link to a PayPal donation site.

In March 2022, Phillips traveled to the region and discussed the project with several local governmental and religious officials.

The next month, he explained the ongoing effort to a podcaster. Phillips said his team was “ensuring that we could clear supply paths and ensure that the hospitals could remain sort of fully supplied and fully staffed” and that they had secured a warehouse.

The hospital’s Twitter account described the facility as a 100,000-square-foot warehouse donated by an unnamed family behind “Europe’s biggest transport company.”

The lawyers now say an unnamed citizens’ group offered use of an empty auditorium that was not ultimately needed.

A March 20, 2022, Facebook post from Artur Muntyan, a local official in Chernivtsi, Ukraine, shows him with other local government and religious officials as well as Gregg Phillips, who appears in the top left photo on the left side of the back row, and in the bottom middle photo on the right. (Screenshot by ProPublica and The Dallas Morning News)

Over the course of the spring, Phillips continued to promote the humanitarian effort, seeking donations and other support. On Twitter, he called it “history in the making.” In early June, he repeatedly discussed the project on Truth Social and said it was responsible for extracting “dozens” of elderly refugees from the region.

“My work and my calling is to create a private healthcare and extraction ecosystem for old folks, women and children,” he wrote in a post on June 5. “The Freedom Hospital is my commitment to God come to life.”

In the December interview, Powell, one of the pair’s lawyers, said Phillips finished the project’s feasibility study by the time he returned from Ukraine, at which time he told donors he couldn’t ask them to fund the project.

But this week, after being sent questions ahead of publication of this article, Powell was vaguer about the project’s timeline. When asked why Phillips continued promoting the hospital into June, he acknowledged his clients began to “harbor doubts” about the project months before without specifying when it was officially shuttered.

“The group came to the realization sometime after Gregg returned that the project was ‘probably’ not feasible, but it would be unrealistic to expect that realization occurred during a single, identifiable moment in time. There was no epiphany,” Powell said.

The project’s Twitter account still exists but has not tweeted since May 5.

Gregg Phillips continued to post about The Freedom Hospital on Truth Social through early June. (Screenshot by ProPublica and The Dallas Morning New)

True the Vote was listed as The Freedom Hospital’s fiscal sponsor on the project’s website and Engelbrecht successfully applied for nonprofit status for the hospital from the IRS in March.

Phillips and Englebrecht planned to get a medical unit from MED-1 Partners, a mobile hospital manufacturing company based in North Carolina. Phillips’ lawyers said he worked with sales representatives and was told the unit would come at “a substantial reduction in price, which MED-1 spoke of as an in-kind donation to help the effort.”

MED-1 Partners CEO Tim Masud told ProPublica and the News this account is not true.

MED-1 Partners was selling an older demo unit for a reduced price, the same price that would be offered to anyone interested in purchasing it, he said. Masud added neither he nor his authorized liaison on the deal described this reduced price as a donation or pledged to provide a donation to The Freedom Hospital.

In March, Masud said the company drafted a letter of intent for a project called “The Freedom Children’s Hospital” that required a $150,000 deposit. But it was never signed and no money changed hands.

“All we did was offer a hospital for sale to a group of people. That’s it,” Masud said.

Powell said his clients raised only $268 for the project through PayPal, which the lawyers said was returned “at Mr. Phillips’ direction.” Another of the group’s attorneys, Michael Wynne, said in a December phone call that the project had raised no other funds through other means.

The Freedom Hospital’s website, which is now defunct, called for donations and said it was halfway to raising $25 million. (Screenshot of the Wayback Machine by ProPublica and The Dallas Morning News)

On April 21, The Freedom Hospital posted a video on its YouTube account with a caption saying that its “team” was “reporting” from Ukraine. But The Freedom Hospital had no role in producing the video.

Christopher Loverro, a Los Angeles-based actor and veteran, made the video, which he said was shot in front of a recently bombed Ukrainian preschool.

In an interview, Loverro said he has never had any connection to The Freedom Hospital and had not given anyone permission to use his work. After being contacted by ProPublica and the News, Loverro said he reported the video to YouTube and commented on the post, warning: “This is a scam. Do not donate to this organization.”

After ProPublica and the News sent the lawyers questions about the video, Loverro said a woman named Catherine, who was associated with the project, contacted him for the first time to discuss The Freedom Hospital. Following that conversation, he said he had no reason to doubt the woman, who told him the project was a legitimate humanitarian effort with “no fraud involved” that simply came to naught.

Phillips’ lawyers said he did not post the video and does not have access to The Freedom Hospital’s YouTube account to remove it. It was likely posted by one of “several volunteers working on the Freedom Hospital project at that time,” they added.

The video and a donation request still remain up on the project’s YouTube channel.

The Freedom Hospital’s YouTube channel has posted one video. An actor and veteran said he produced the video and did not give the project permission to use it. (Screenshot by ProPublica and The Dallas Morning News) Complaints

The Freedom Hospital project and other efforts troubled one of True the Vote’s contractors enough that he submitted a complaint in June referencing the hospital and a number of other concerns to the Texas attorney general’s criminal investigation division.

“After a series of bizarre calls and communications over several months, Gregg told us he’d raised the money for [The Freedom Hospital]. Several times he told us it was $2.5 million. He also gave us the figures of $10 million. He also marketed that they needed $25 million,” Kyle Reyes, whose company had worked on marketing initiatives for True the Vote, wrote.

ProPublica and the News obtained the complaint through a public records request.

In the document, Reyes accused True the Vote of a wide range of questionable business practices and said the organization had not paid his marketing firm for the services it performed.

Wynne said the complaint is “demonstrably false.” It’s unclear what the status of Reyes’ complaint is; the Texas attorney general’s office did not respond to a request for comment.

The questions about The Freedom Hospital come as Engelbrecht and Phillips are facing new scrutiny over continued failed efforts to prove widespread fraud in the American election system.

The pair have frequently profited handsomely from their election denial work, according to an investigation by Reveal that found loans issued to Engelbrecht and self-dealing contracts to nonprofit insiders. (Their attorney at the time said that there was nothing inherently wrong about the contracts.) The outgoing attorney general of Arizona, once an ally, now wants the group investigated for potential “financial improprieties” related to this work. In November, the pair spent a week in jail on contempt of court charges for failing to disclose a source behind their election fraud claims.

Reyes told ProPublica and the News that he terminated his firm’s contract with True the Vote in June. After Reyes filed his complaint, he said, True the Vote paid his company the outstanding invoices about $25,000.

“As conservatives, we need to hold our fellow brothers and sisters to the same standard that we hold everyone in America to — no matter what side of the political aisle you’re on,” he said.

by Cassandra Jaramillo, ProPublica, and Lauren McGaughy and Allie Morris, The Dallas Morning News

What to Know About the Risks of Gas Stoves and Appliances

2 years 2 months ago

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As a climate reporter, I was well aware of the growing concern about the gas stoves in people’s homes leaking dangerous pollutants, like methane, a potent greenhouse gas and explosive hazard; nitrogen dioxide, which worsens asthma; and benzene, which causes cancer. But I was a renter who had no control over my appliances. So I mostly ignored it — until one day last fall when I smelled the rotten-egg odor of leaking natural gas while baking focaccia.

I borrowed a $30 gas leak detector from a friend (a fellow climate reporter, of course). When I turned on the oven in my New York City apartment, the lights for a “significant” leak lit up. My kitchen was filling up with methane. According to the user manual, that meant I should “VENTILATE THE AREA IMMEDIATELY and move to a safe location” in case of an explosion. I opened the windows and ignored the evacuation advice (don’t follow my example), too intent on taking a video of the leak as proof for my landlord before turning off the oven. Then I vented my frustration by panic-texting friends and eating too much focaccia — after cutting it into pieces and baking it in my toaster oven. Luckily, my landlord replaced my faulty stove within days. I made sure to check the new stove (still gas, alas) for leaks after it was installed.

“People still don’t recognize that there are health downsides to cooking with gas in your home,” said Regina LaRocque, a Harvard Medical School professor who does research on medicine and public health. “This is the 21st century, and we have better ways of cooking than over a fire.”

The issue has caught national attention in recent weeks, as the U.S. Consumer Product Safety Commission considers regulating gas stoves. Public health experts and environmentalists have long warned of the risks of gas ranges. One study found that indoor gas stoves were responsible for roughly 13% of childhood asthma cases in the U.S. The American Public Health Association and American Medical Association have urged consumers to transition away from gas.

LaRocque uses a traditional electric coil stove at home. But she and other experts advocated for induction stoves, which use electromagnets to heat up food. These stoves are growing in popularity as consumers choose them for climate, health and safety reasons, though they can cost more than twice as much as a gas range.

The federal Inflation Reduction Act will provide rebates to upgrade to electric or induction home appliances (here’s a Wirecutter guide on that program). Some states, including Massachusetts, offer their own rebates as well.

Induction stoves are much more common in Europe, LaRocque said. That cultural shift has yet to occur in the United States, where more than a third of households use gas stoves. As Mother Jones reported, the gas industry embraced the term “cooking with gas” in the 1930s; an executive even made sure to get it worked into Bob Hope’s comedy routines. More recently, the industry has opposed electrification efforts with lobbying and social media influencers who tout gas as a “super cool way” to cook.

I consulted multiple experts on the hazards of gas stoves and what people can do about them. Their advice boiled down to this: homeowners who can afford it should switch to an induction or electric stove. For renters and others who can’t replace their appliances, the experts provided tips on lowering the health risks.

What Are the Risks of Gas Appliances? (Illustration by Laila Milevski, special to ProPublica)

Methane is a greenhouse gas. The gas that’s piped into your house is virtually all methane. When you burn methane to cook food, it turns into carbon dioxide. But unburned methane trickles out from loose fittings and faulty stovetop igniters. Every pound of methane released into the air is 30 to 86 times more effective at warming the planet than a pound of carbon dioxide.

When researchers analyzed 53 homes in California last year, they found methane leaking from almost every stove. More than three-quarters of that methane came from stoves that were turned off. The act of igniting a burner or oven released additional puffs of methane. If these leaks are consistent across the nation, then annual methane emissions from U.S. gas stoves would equal the greenhouse gas emissions of half a million cars.

These leaks are “pretty much universal,” said Robert Jackson, a Stanford University professor and a study co-author. Jackson, who’s spent more than a decade studying methane leaks from gas wells, pipelines and other fossil fuel infrastructure, said it can be hard to predict where the leak is coming from. Based on the description of the leak in my kitchen, he told me it likely was caused by ignition problems with the oven. Jackson’s research has inspired him to ditch his gas stove, furnace and hot water heater in favor of induction and electric appliances.

“I did not expect to see the high levels of indoor air pollution we saw consistently,” he said. “It strongly motivated me to replace my own stove.”

Large methane leaks can cause explosions. If you smell gas in your home, leave the building and call your gas company. The distinctive rotten-egg odor comes from chemicals that gas companies add to the methane to make it easier to detect, since the gas is naturally odorless.

Some people are much more sensitive to the smell than others, so it’s not a foolproof warning for explosive risk. Eric Lebel, lead author of the methane study Jackson worked on, recalled smelling gas in some of the homes where he did the testing, even though the homeowners couldn’t smell anything. Lebel is a senior scientist at PSE Healthy Energy, a nonprofit science and policy research institute.

Burning natural gas releases nitrogen dioxide, a respiratory irritant. Nitrogen dioxide exacerbates asthma and impairs lung function. The Environmental Protection Agency regulates these emissions from cars and power plants with national air quality standards, but those regulations don’t apply to indoor air.

The Lebel and Jackson study measured nitrogen dioxide and a related compound. They found steadily rising emissions after turning on burners and ovens.

“Simply having a combustion stove in your home is a health risk,” LaRocque said. In poorly ventilated kitchens, nitrogen dioxide levels could exceed outdoor air standards. “It would be like standing behind an idling car, or standing in a smoke-filled room,” she added. “I think if my child had asthma, I would definitely want to intervene.”

Gas stoves leak benzene, a carcinogen that can cause leukemia. In a separate study published last fall, Lebel and his colleagues analyzed gas samples from residential kitchens. Out of 160 samples, all but one contained benzene.

“If there’s a leak from that appliance, it likely contains benzene,” Lebel said. “It’s a rather unavoidable cost of owning a gas appliance.”

Raw natural gas contains a mix of methane and toxic chemicals like benzene, toluene or formaldehyde. Gas companies strip out the impurities before piping the processed gas to homes, but they don’t eliminate all the toxins.

Lebel’s team modeled the benzene concentrations from the leaking stoves and found a handful that failed to meet California’s benzene safety guidelines. They also found traces of other harmful compounds, including toluene, ethyl benzene and xylene, which can cause dizziness, nausea and liver damage. A separate study of gas appliances in the Greater Boston area found benzene in 95% of samples, though at lower levels than Lebel’s study.

How Can I Protect Myself? (Illustration by Laila Milevski, special to ProPublica)

Turn on the range hood above your stove. Paul Francisco, associate director of building science at the University of Illinois Urbana, Champaign, suggests cooking on the back burners and using the hood whenever you turn on the stove or the oven. The fans improve ventilation and will pull benzene, methane and nitrogen dioxide outdoors.

However, this only works if the hood connects to the outside of your house. Follow the piping on the hood: If the top of the device goes through the ceiling or the wall, then it should help with air quality.

Another type of range hood, called a “ductless” hood, simply recirculates indoor air. If your hood has grilles or vents on the front, then it’s likely, but not guaranteed, to be ductless, Francisco said. These fans won’t cut down on harmful gases, but they might be able to reduce particulate matter — tiny particles created during cooking, which can cause or exacerbate respiratory illness. A 2014 study found that cooking on induction stoves produced far fewer particles than cooking on gas or electric stoves.

Open a window to improve ventilation. At a minimum, an open window will dilute toxic gases.

If your kitchen is in the upper half of a building, opening the window should draw the contaminants outside as long as there’s no wind and it’s warmer inside than outside, Francisco said. If you live in the lower half of a building, opening a window in the winter won’t be as effective, he said, though any ventilation is better than none.

Get an induction hot plate. If you can’t replace your stove, experts said the next best thing is to buy an induction burner. Here are some consumer guides with reviews of portable hot plates.

During last summer’s heat waves, when I couldn’t fathom lighting a fire inside my kitchen, I did almost all my cooking using an induction hot plate, an Instant Pot and an electric toaster oven. Excessive heat is another reason why some chefs advocate for induction burners.

What about air purifiers? These devices have become more popular as a way to improve air quality and reduce the risk of COVID-19 infections. Most air purifiers won’t have any effect on toxic gases, though they do remove particulate matter, Francisco said. Some specialty models filter out volatile organic compounds, a class of chemicals that includes benzene.

Should I buy a gas detector? There are a number of methane monitors that are designed for consumers, priced from roughly $30 to $200. Some will tell you about the presence of a leak. Others are sensitive enough to detect specific concentrations of methane. You can also find indoor monitors that detect particulate matter for $200 to $300.

It’s much harder to monitor for benzene or nitrogen dioxide. The types of instruments used by Lebel and Jackson cost tens of thousands of dollars and require users to undergo extensive training.

The South Coast Air Quality Management District, a regulatory agency in California, maintains a list of “low-cost” air quality sensors (less than $2,000) that can be used by citizen scientists and advocacy groups. These sensors can be used to detect particulate matter, nitrogen dioxide and volatile organic compounds.

Lebel said it shouldn’t be up to individuals to solve a systemic issue. It seems problematic, he said, “to be asking citizens to be scientists and try and discover if their stove is leaking.”

by Lisa Song

U.S. Investigators Uncovered Alleged Corruption by Mexico’s Former Security Minister Years Before He Was Indicted

2 years 2 months ago

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Leer en español.

When federal prosecutors walk into the United States Courthouse in Brooklyn on Monday to present their opening statements against Genaro García Luna, the highest-ranking Mexican official ever tried in the United States for drug corruption, they will unveil a complex case that took years to build.

But the fuller story of the government’s investigation of García Luna — a former security minister who was arguably the United States’ most important Mexican partner in a long and failed effort to transform his country’s criminal justice system — is hardly a triumph of determined American law enforcement.

Investigators from the Drug Enforcement Administration uncovered evidence of García Luna’s secret alliance with violent drug traffickers more than 10 years ago, months before he stepped down from office in 2012. By the next year, they had enough to present their findings to the head of the DEA, who urged them to press ahead to an indictment.

But as the investigators continued to build their case over the next few years, federal prosecutors in Houston rejected it repeatedly as insufficient, several current and former officials told ProPublica. Finally, the case stalled.

“They wanted more,” said Steven S. Whipple, who supervised the investigation for several years as a deputy chief and then head of the DEA office in Houston. “I thought we had enough to charge the guy, but they said no — and they were the lawyers.”

The case did not move forward until early 2019, after a government witness in the trial of the Mexican kingpin Joaquín Guzmán Loera, known as El Chapo, told of paying García Luna more than $6 million in cash on behalf of Guzmán’s so-called Sinaloa Cartel.

Soon after that testimony, prosecutors from the Eastern District of New York, based in Brooklyn, began putting together the case on which they arrested García Luna in December of that year. The evidence developed by the Houston agents quickly became a central part of their case, officials familiar with the inquiry said.

García Luna has pleaded not guilty. But if he is convicted, his betrayal would point to one of the more extraordinary intelligence failures of the decadeslong U.S. battle against the drug trade in Mexico.

The Eastern District prosecutors have also indicted two of García Luna’s closest former aides, Luis Cárdenas Palomino and Ramón Pequeño García, on similar charges and will likely seek their extradition after the trial, officials said. A third former García Luna aide, Iván Reyes Arzate, who for years oversaw elite police units that worked with U.S. agents on sensitive investigations, has already pleaded guilty to U.S. corruption charges.

Starting in the late 1990s, when García Luna left Mexico’s civilian intelligence service to help reorganize the federal police, he spent nearly 15 years at the center of the two governments’ joint efforts to build a more effective, less-corrupt criminal justice system in Mexico.

For six years, García Luna ran the Federal Investigative Agency, a police force modeled vaguely on the FBI. Starting in late 2006, as President Felipe Calderón sought much wider U.S. help to fight drug mafias and transform the criminal justice system, García Luna served for years as his powerful secretary of public safety.

Yet even as he won public praise in Washington, García Luna was the target of repeated accusations of corruption by others in the Mexican security apparatus. Some of those officials said they confided their suspicions to Calderón. Some shared what they knew privately with U.S. Embassy officials. A few spoke out openly.

García Luna speaks with then-Secretary of State Hillary Clinton in March 2009. (Luis Acosta/AFP via Getty Images)

American officials who served in Mexico City at the time described an environment perpetually clouded with rumors of corruption that were almost always difficult to verify. They said they tried to investigate the most significant allegations but rarely came to satisfying results. Former American diplomats also said that while they had access to U.S. intelligence, they had little or no information that was developed about García Luna and other officials in federal law enforcement investigations.

“I never saw any CORROBORATED information of involvement in drug trafficking,” a former U.S. ambassador to Mexico, Roberta S. Jacobson, tweeted following García Luna’s arrest.

Yet, given García Luna’s central role in both the fight against organized crime and the longer-term police reform project, the due diligence done by U.S. officials who worked with him is certain to look less compelling against the incriminating information that federal prosecutors will start to reveal in their opening statements on Monday.

The Eastern District prosecutors have prepared more than 60 possible witnesses and tens of thousands of pages of documentary evidence, people familiar with the case said. The star witnesses are expected to include the Mexican trafficker who first told his story to DEA agents in Houston in 2012, Sergio Villarreal Barragán, a hulking former police agent known as El Grande.

But the case still faces some legal hurdles. The most important may be the five-year statute of limitations that covers drug and corruption crimes. The prosecutors have sought to circumvent this obstacle by charging that García Luna joined the Sinaloa capos in a “continuing criminal enterprise.”

Like the more commonly used Racketeer Influenced and Corrupt Organizations, or RICO, Act, the so-called CCE statute is used to impose longer prison sentences on crime bosses, and it specifically targets drug crimes. The CCE charge allows the prosecutors to argue that García Luna and his lieutenants are responsible for criminal actions that continued years after they stopped taking the traffickers’ bribes.

The strategy is untested, though, as a way to prosecute a corrupt government official after he apparently ended his criminal ties, and some officials believe it will likely be a focus of García Luna’s defense.

Unlike the Eastern District’s abortive effort to prosecute Mexico’s former defense minister, Gen. Salvador Cienfuegos Zepeda, on drug corruption charges in late 2020, the government of Mexican President Andrés Manuel López Obrador has mostly welcomed the U.S. action against García Luna. Officials said his government has cooperated with the U.S. prosecutors in response to some requests for information.

Cienfuegos was vigorously defended by the Mexican army, on which López Obrador has depended heavily throughout his administration. In the face of diplomatic protests, then-U.S. Attorney General William P. Barr dropped the charges and sent the general back to Mexico barely a month after he was arrested. Cienfuegos said he was innocent of any wrongdoing.

García Luna is closely associated with former Mexican President Felipe Calderón, right. (Alfredo Estrella/AFP via Getty Images)

By contrast, García Luna is closely associated with Calderón, a pro-American conservative who defeated López Obrador in a bitterly contested 2006 election and remains his hated rival. The Mexican government has filed its own corruption charges against García Luna and sued him in a Florida court, demanding $250 million that the authorities say he and his associates stole while he was security minister. He has denied those allegations.

In hindsight, some of the many American officials who worked closely with García Luna said they had cause to suspect him long before he was charged with working for Guzmán’s Sinaloa Cartel.

One former U.S. Embassy official recalled being invited by García Luna to a party at what he described at the country home of his wife’s family in Cuernavaca, a weekend retreat south of the capital favored by wealthy Mexicans.

At one point, García Luna escorted some of his American guests to an immaculate, warehouse-like garage where he kept a gleaming array of restored vintage automobiles, one of them recalled. It was impossible to estimate the collection’s value at a glance, but the former official thought it might have been worth hundreds of thousands of dollars — perhaps as much as the home itself.

“It was right in front of us,” said the former official, who, like some others, insisted on anonymity to discuss still-secret information about García Luna’s case. “If it wasn’t corrupt, it was suspect. But we didn’t really have a choice about working with him.”

The DEA noticed García Luna early on. While still serving in the intelligence service, he and Cárdenas Palomino, his longtime lieutenant, arrived in Tijuana in the mid-1990s to offer to collaborate with U.S. agents working against the Arellano Félix gang, drug-running brothers who had been implicated in the 1993 murder of the Roman Catholic cardinal of Guadalajara.

“They gave a beautiful briefing,” one former DEA agent said of the two Mexican intelligence agents. “They had an operational plan, but it was all targeted to the Arellanos. When you talked about anybody else, they didn’t care.”

The former agent surmised that García Luna might already have been working for the Sinaloa Cartel, the Arellanos’ rivals. García Luna and Cárdenas Palomino pressed the DEA for information about the Arellanos. But the Mexicans claimed to know little about the Sinaloans, even though they were then operating from nearby Mexicali and pushing violently into Tijuana.

In 1998, García Luna joined a former head of the intelligence service to try to reorganize the notoriously corrupt Federal Preventive Police. That effort ended with the former intelligence chief accused of corruption (he was later exonerated), but García Luna prospered. When Mexico’s first opposition president was elected in 2000, he was named to lead the federal police, which was rebranded once more as the Federal Investigative Agency.

At the AFI, as it was known by its Spanish initials, García Luna impressed U.S. officials as a can-do technocrat (he had a college degree in mechanical engineering) unburdened by the nationalistic mistrust that had always clouded Mexico’s collaboration with the United States in the drug fight.

Members of Mexico’s Federal Investigative Agency, known by its Spanish initials as the AFI, take part in an counterdrug operation in Mexico City in March 2007. García Luna led the agency in the early 2000s. (Daniel Aguilar/Reuters)

When García Luna was chosen in late 2006 to run a powerful new public safety ministry under Calderón, the U.S. Embassy fairly rejoiced in a cable to Washington. When Calderón turned to the George W. Bush administration for urgent help in the fight against surging violence, the two governments signed a landmark agreement, the Mérida Initiative, that would lead to a new era of cooperation and more than $3.5 billion in U.S. security aid.

“Within a very short time, García Luna became our go-to guy because he was the most effective partner we had,” said John Feeley, a senior American diplomat who worked for years on the Mérida plan’s implementation. “There were a lot of things that we did under the rubric of Mérida that were very successful, and many of them involved García Luna.”

At the same time, however, the central Mérida goal of police reform ran into endless difficulties under García Luna’s leadership.

When sensitive intelligence information was shared with Mexican police officials, even those trained and vetted by the DEA, it was leaked to the traffickers almost routinely. American-trained police officials in those units were killed one after another, apparently betrayed to the traffickers by others inside the government.

García Luna, Cárdenas Palomino and other top security officials refused to submit to the screening and polygraph examinations that were given to the vetted agents, and U.S. officials felt they could not compel them to do so. (Reyes Arzate, a García Luna lieutenant who directed the Mexican police units that worked with U.S. agents, did pass polygraph tests before he was charged in Chicago in 2017 with leaking information to the traffickers, two officials said.)

By the time García Luna stepped down in 2012, he had been linked to drug traffickers in several Mexican news articles and implicated publicly and privately by at least three prominent Mexican officials. Two of his accusers, a former police official and an Army general, were themselves jailed on corruption charges, which were later dropped.

Then, in May 2012, U.S. allies in the Calderón administration helped secure the extradition of Villarreal, the feared Mexican trafficker called El Grande. Weeks later, U.S. investigators began to question him at length in a federal prison in Texas.

Sergio Villarreal Barragán, a former Mexican police agent and trafficker, is expected to be one of the star witnesses in García Luna’s trial. (Alfredo Estrella/AFP via Getty Images)

The story he told them was bracing, several former officials said. He described García Luna as having been a paid and trusted protector of both the Sinaloa Cartel and the Beltrán Leyva Organization, a powerful gang headed by brothers who split from Guzmán and his Sinaloa allies in 2008.

Arturo Beltrán Leyva, who led the organization until he was killed in a raid by Mexican marines in 2009, felt so strongly that García Luna worked for him that he berated the minister after one of his brothers was arrested, Villarreal said. Cárdenas Palomino and other García Luna lieutenants were described as having been part of the scheme as well.

At one point, Villarreal told the DEA investigators, García Luna met with a group of high-level traffickers at an isolated ranch and informed them he could no longer accept their cash, at least for a while. He was taking in so much money that he no longer had the means to launder it, former officials familiar with the account said.

Villarreal spoke under oath and laid out specific information that the agents were later able to corroborate. If his accusations against García Luna were true, it suggested that the entire U.S. effort to transform Mexico’s police structure might have been doomed from the start.

A small group of DEA agents in Houston, where Villarreal was being prosecuted, began digging into the case. They conducted surveillance of García Luna in Miami, where he had moved with his family to set up a security consulting firm and other businesses. They also discovered his complicated entanglements with a Mexican security executive, Samuel Weinberg, and his son, who were found to be channeling funds to some of García Luna’s enterprises. The Weinbergs have denied wrongdoing.

As part of their effort to trace García Luna’s finances, the agents first uncovered records in Panama that showed millions of dollars in suspicious transfers from offshore accounts into others that García Luna appeared to control in Miami, including one for a restaurant that appeared to be laundering the money. Through a front company, the Weinbergs had purportedly facilitated the purchase of a $3.3 million house in Golden Beach, north of Miami, where García Luna was living, but he was the person who had picked it out with a real estate agent, one former official said.

In 2013, a senior agent overseeing the case was sent to Washington to brief the DEA administrator, Michele M. Leonhart. She did not hesitate in her assessment of the case, one former official familiar with the meeting recalled. “Get it done,” the official quoted her as saying. “Get him charged.”

But while García Luna recruited clients for his security firm, earned a master’s degree in business administration at the University of Miami and enjoyed his new life, the Houston investigators got a less enthusiastic response from federal prosecutors in the Southern District of Texas, headquartered in Houston.

The prosecutors were not especially interested in a historical corruption case, three former officials said, and they did not think agents had put together sufficient evidence to convict a high-profile figure like García Luna.

“The Southern District felt straight-up that there wasn’t enough information to charge him,” Whipple, the former DEA chief in Houston, said. “We couldn’t get it prosecuted.”

Whipple and others overseeing the case pushed the agents to press forward, but they made slow progress. The financial information was complex and complicated by the difficulty of obtaining records overseas. The agents interviewed former Mexican traffickers and lined up other potential witnesses.

Despite the additional evidence, prosecutors at the Houston office continued to see their findings as insufficient to go after a target as formidable as García Luna, officials said. A spokesperson for the U.S. attorney’s office, Angela Dodge, declined to comment on how it weighed the Garcia Luna matter, but said, “We consider each case based on the evidence and what can be proven beyond a reasonable doubt in a court of law.”

Eventually, though, the DEA investigators began to lose steam, officials said.

“When you’ve pursued every lead you can find and the prosecutors say it’s not quite enough, things get stagnant,” Whipple said. “I thought that we had checked all the boxes. But it was on the back burner until something popped — and the Chapo case finally popped.”

Early in Guzmán’s trial in the Eastern District, a former Sinaloa lieutenant, Jesús Zambada García, testified that he had twice met with García Luna at a Mexico City restaurant to give him cash-filled briefcases, each one with more than $3 million. That revelation and others prompted the U.S. attorney, Richard P. Donoghue, to instruct his prosecutors to begin making cases against García Luna and other corrupt Mexican officials.

Jesús Zambada García, a former cartel lieutenant, testified in another trial that he had twice met with García Luna to give him cash-filled briefcases, each one with more than $3 million. (Alexandre Meneghini/AP)

Those prosecutors and the investigators working with them soon found their way to Houston, where one of the DEA agents and a financial crimes analyst eagerly turned over all the work they had done over the previous seven years.

García Luna was secretly indicted on drug conspiracy charges by a federal grand jury in Brooklyn, and he was arrested in Dallas on Dec. 9, 2019.

Doris Burke contributed research.

by Tim Golden

Washington State Launches Investigation of Private Special Education Schools

2 years 3 months ago

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

Washington education officials have launched an investigation into the state’s largest network of privately run schools for students with disabilities, following a series of stories by The Seattle Times and ProPublica that documented poor conditions at the schools, the state disclosed Thursday.

The investigation was revealed in a seven-page letter from the state Office of Superintendent of Public Instruction on the same day lawmakers considered a sweeping reform bill that would give the state greater oversight of the publicly funded system of private special education schools, known as “nonpublic agencies.”

“We have to figure out, as a state and as a Legislature, how it is that we protect and make sure our children are getting the services and supports they need,” said Sen. Claire Wilson, D-Auburn, vice chair of the Senate education committee and the bill’s prime sponsor.

Both the investigation and the bill came in response to the news organizations’ stories on the Northwest School of Innovative Learning, a program serving students with complex developmental and behavioral disabilities. Owned by Fairfax Hospital, the largest private psychiatric facility in Washington, Northwest SOIL serves the most public school students in the system and only accepts students whose tuition is paid for by taxpayers.

The Times and ProPublica investigation found years of complaints by school districts and parents, including allegations of abuse, overuse of isolation rooms to manage student behavior and unqualified aides instead of certified special education teachers leading classrooms.

Police investigated allegations that one teacher placed a 13-year-old boy in a chokehold. And former staffers, including the school’s top administrator, said they felt pressured by Fairfax and its parent company, Universal Health Services, to skimp on staffing and basic resources and to enroll more students than the staff could handle.

But OSPI routinely approved the schools’ annual application to accept students.

It’s rare for the state to investigate the operations at nonpublic agencies, and in the letter, OSPI called out its authority to suspend or revoke a school’s approval. In the case of Northwest SOIL, a revocation could effectively shut down the school.

Tania May, assistant superintendent for special education at OSPI, sent Fairfax CEO Christopher West the letter earlier this month requesting detailed information about Northwest SOIL’s three campuses from 2019 to present. She followed up this week, setting deadlines in February and March for responses.

“Given the serious nature of the allegations made in the articles, OSPI is examining what, if any, actions need to be taken with respect to Northwest SOIL’s approval to contract with Washington school districts,” May wrote.

Northwest SOIL’s three locations in Redmond, Tacoma and Tumwater are among 89 nonpublic agency campuses approved by the state. The programs provide an alternative for school districts that can’t meet the needs of special education students. Roughly 500 Washington students are sent, at public expense, to the nonpublic agency campuses, which include residential schools scattered throughout the country.

As part of the wide-ranging inquiry, the state demanded records of allegations of “mistreatment, maltreatment, abuse or neglect” by school staff against students as well as calls to law enforcement and restraint and isolation documents. The inquiry is also seeking documents and data relating to staff qualifications and student-to-teacher ratios.

West did not respond to a request for comment Thursday. Fairfax Hospital previously defended the program in a statement to the Times and ProPublica, saying that “use of restraints and seclusion are always used as a last response when a student is at imminent risk of hurting themselves or others.” The company added, “We strongly deny any allegation that we understaff and/or pressure staff to increase admissions in order to maximize profits.”

May’s letter said the Times and ProPublica stories described allegations against staff that were “previously unknown” to OSPI and other agencies, including police, Child Protective Services and local school districts. The state told Northwest SOIL to “explain why such allegations were not reported.”

Disability rights advocates praised the state’s move.

“It is so important that OSPI is taking an urgent and active step to thoroughly investigate the concerns at NWSOIL,” Karen Pillar, director of policy and advocacy at TeamChild, an education rights group, said in an email. “Collecting data is a great first step, but there needs to be simultaneous action to make sure the students attending every day are receiving the support and educational services required by law and designed to keep them safe and learning.”

In Olympia on Thursday, state lawmakers took public testimony on a bill, SB 5315, that would require OSPI to publish a wide range of data — from test scores and graduation rates to incidents of restraint or isolation — for Northwest SOIL and other nonpublic agencies. It would also require the state to develop standards for investigating nonpublic agency contracts.

Unlike with public schools, the state does not track academic progress, restraint and isolation patterns or disciplinary actions at nonpublic agencies, making it difficult for parents of disabled children to vet the programs. Instead, the schools are overseen piecemeal by individual school districts, who are required to monitor the progress of only their students.

“The quality is all over the board and the education information about them is all over the board,” Ramona Hattendorf, director of advocacy for the Arc of King County, a disability rights group, said at the hearing. “I really want to emphasize how critical it is for families to have information about these agencies and faith in their ability to provide the promised and needed support.”

The Times and ProPublica stitched together a troubling picture of Northwest SOIL by filing 80 public records requests and speaking with 26 current and former staffers.

The proposed legislation would also require OSPI and at least one school district that sends children to the program to visit each nonpublic agency before approving its contract — a significant increase in state oversight. As it stands, state law gives OSPI the option of visiting each school, but it’s not required. Also, every nonpublic agency would be inspected by the state or a school district annually. Current law requires a district inspection once every three years.

The legislation would standardize district agreements with nonpublic agencies, including requiring a description of financial safeguards “to ensure that funds are used to provide special education services to students.”

But the bill received pushback from representatives of some nonpublic agency schools, who said they were unfairly being lumped together with more troubled programs. Though all nonpublic agencies are approved by OSPI, some are also approved as private schools by the state Board of Education and say they face additional regulations. Others, such as Northwest SOIL, which is run by a hospital, aren’t accredited private schools.

“They call themselves schools, but they do not go through the rigorous approval or accreditation process we did,” said Melodee Loshbaugh, the founder of Brock’s Academy in Woodinville. “We feel like it’s overreach to even suggest that we are not doing a good job with our documentation.”

Committee members said they were open to modifying the bill to distinguish between different types of nonpublic agencies.

“We have some bad actors. We want to go after the bad actors. We don’t want to make life more difficult for the good actors,” said Sen. Mark Mullet, D-Issaquah.

by Mike Reicher and Lulu Ramadan, The Seattle Times

Pressure Mounts for Hospice Reform

2 years 3 months ago

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Last week, the four largest hospice trade associations jointly sent a detailed memo of policy proposals to the Centers for Medicare and Medicaid Services, which regulates the end-of-life care benefit. Their 34 recommendations, which span eight pages, directly address the alarming business practices outlined by a recent ProPublica-New Yorker investigation.

“The New Yorker-ProPublica investigation shook the industry to its foundation,” said Dr. Diane Meier, a geriatrician at New York’s Mount Sinai hospital and a leading authority on palliative care. “You have four major industry groups coming together, as they don’t always do, on a series of significant policy and regulatory changes for hospice. This suggests — contrary to public messages about this being just a few bad actors — that it’s not just a few bad actors. There are systemic problems with the lack of oversight and the profit motive.”

Industry leaders are not the only bloc pressuring CMS for greater hospice oversight. Senators and government watchdog agencies are also pushing the agency for concrete changes. Last week, the Government Accountability Office released a report asking that hospices be required to report observations of abuse and neglect, regardless of whether the alleged perpetrator works at the hospice. MedPAC, the congressional advisory panel on Medicare spending, has again endorsed modifying the hospice payment structure to reduce part of the financial incentive for enrolling ineligible patients. And in late December, the inspector general’s office at the Department of Health and Human Services announced that curbing the abuse of hospice patients was among its top unimplemented recommendations.

Drawing on state licensing records and federal data, our story highlighted how networks of entrepreneurs are propping up an alarming number of for-profit hospices in Nevada, Texas, Arizona and California. As part of their recommendations, the trade groups flag several specific ways that CMS could use its power to curb the “inappropriate” proliferation of hospice licenses, such as increasing the number of inspections for new providers, limiting Medicare hospice certifications in high-growth areas and cutting off funding to high-risk operators. ProPublica found that some of these new hospices improbably share staff, owners and addresses. These suspicious business practices, the trade organizations note, could be treated as red flags that would trigger prepayment scrutiny or billing audits.

“Providers don’t like surveys” — inspections — “and are usually not the ones to ask for more of them,” said Dr. Joan Teno, an expert on the industry and adjunct professor at the Brown University School of Public Health. “You’ll hear various entities paying lip service to reform, but what they’re saying here is that they want to fix the problem and offering specific recommendations for how to do so. It’s unusual and impressive.”

Among its proposals, the memo discusses the need to rein in predatory marketing schemes. ProPublica’s reporting found that profit-seeking providers can take advantage of the fact that many people don’t know what hospice is to recruit new patients who are not dying. Some hospice marketers — known in the industry as “community liaisons” or “community educators” — aggressively solicit new patients with promises of free housekeeping and trips to the beach and casino. Others treat physicians to cash bounties and bottle service at Las Vegas nightclubs to gin up referrals. The groups ask that CMS update its regulations to require hospices to develop policies on “ethical marketing practices.” (Such policies, they note, must prohibit kickbacks, disclose bonuses to marketers and mandate that hospices clearly explain the benefit to patients.)

ProPublica’s investigation pointed out that practically anyone can open a hospice. I came across hospices owned by vacation-rental superhosts, a man convicted of drug distribution and a criminal-defense attorney (who once represented a hospice employee convicted of fraud and was later investigated for hospice fraud himself). The trade associations have asked CMS to prohibit individuals with convictions for certain crimes from operating hospices and to require training and background checks for hospice administrators, noting that “unqualified or risky hospice leadership” could lead to fraud or poor quality of care.

It’s hard to require that hospice owners have appropriate qualifications, however, if the identity of those owners remains unknown. As private equity firms acquire an ever-greater share of the hospice market, many families have no way of untangling who actually operates their provider. This lack of transparency, the trade groups write, “makes accountability for poor performance difficult and makes it harder for patients and families to choose quality providers.” At the moment, it’s easier to research a hotel for your honeymoon than it is to research the hospice that will care for your loved one. But it doesn’t have to be this way: CMS could make hospices disclose their owners and major investors, the groups say. It could also revamp its Care Compare website — a sort of TripAdvisor for end-of-life care consumers — to prioritize quality metrics and make its data more accessible. In response to questions from a groundswell of readers in the wake of its reporting, ProPublica published a guide to help families research their provider and spot common signs of fraud. The trade groups propose that similar information be incorporated into the official Medicare handbook for hospice consumers.

Throughout the memo, the trade groups emphasize that CMS already has the authority to implement many of their suggested reforms. The next step, they say, is making sure the agency has the funding to actually carry out its essential oversight role. “Part of our plan is to offer support in advocating for the agency to have the resources it needs, and that’s part of our goal in sharing this with Congress,” said Mollie Gurian, a vice president at LeadingAge, an association of nonprofit eldercare providers, which co-authored the memo. Gurian and her peers in the field are in the process of scheduling a meeting with CMS, which did not respond to ProPublica’s request for comment. “We didn’t all come into these discussions with the same list, but we are all committed for hospice to be the special benefit that it is and we all agree that it is under threat,” Gurian said.

by Ava Kofman

Watchdog Seeks Harsher Penalties in Wake of Abuse at Illinois Mental Health Center

2 years 3 months ago

This article was produced for ProPublica’s Local Reporting Network in partnership with Lee Enterprises, along with Capitol News Illinois. Sign up for Dispatches to get stories like this one as soon as they are published.

The watchdog for the Illinois Department of Human Services is seeking harsher penalties against health care workers who obstruct abuse and neglect investigations.

IDHS Inspector General Peter Neumer’s call to action comes on the heels of extensive reporting by Lee Enterprises, Capitol News Illinois and ProPublica last year that revealed a culture of abuse and cover-ups at Choate Mental Health and Developmental Center in rural southern Illinois. The news organizations detailed how uncooperative staff stymied the state’s ability to hold employees facing serious abuse allegations to account.

Specifically, Neumer is asking legislators for a change in law that would allow his office to report workers engaged in similar misconduct to an existing statewide registry. The move could bar those employees from working in the health care field in Illinois.

The Health Care Worker Registry monitors direct care aides, nursing assistants and other non-licensed health care officials; its database of professionals includes those who are barred from working with vulnerable populations. They may have been barred because of criminal records or if they have been found in an administrative proceeding to have engaged in financial exploitation, what is known as “egregious neglect” or physical and sexual abuse.

Under the current system, state workers who help their colleagues by lying to or misleading investigators can face termination if they’re caught, but findings against them can’t be reported to the registry. So short of criminal charges, which are rare, nothing would prevent them from going to work in another health care setting.

The Office of the Inspector General “regularly sees instances where facility or agency staff seek to protect each other from the consequences of their misconduct by remaining silent about what they witnessed or lying to protect their fellow employees," Neumer wrote in a recently released annual report on his office’s work.

In a follow-up interview, Neumer said expanding his office’s authority would help deter employees from “engaging in cover-up behavior or code-of-silence activity if they were aware that by doing so they risked losing their employment and possibly their ability to work in the health care industry in Illinois.”

For the earlier stories, reporters combed hundreds of pages of records, identifying more than four dozen cases between 2015 and 2021 in which the OIG cited Choate employees for providing false statements to the office’s investigators; for failing to make a timely report in accordance with the law; and for other failures to follow department policy concerning reporting and investigating abuse and neglect allegations. The few Choate workers charged with obstruction of justice or official misconduct for interfering with an investigation have had their charges dropped or reduced.

One case involved a mental health technician caught on a 911 audio recording threatening to break a patient’s finger. Though other voices could also be heard on the 911 call that was accidentally placed via a smartwatch, the other workers present refused to identify the perpetrator. The county prosecutor declined to bring charges related to the threats on the 911 call, citing insufficient evidence.

IDHS did not dispute any of the news organizations’ previously reported findings, saying in a statement at the time that the agency requires employees to cooperate with administrative investigations and trains them on the importance of giving law enforcement complete and truthful information. This week, a spokesperson said that although the inspector general works independently, IDHS has closely monitored the situation at Choate, worked with the inspector general and governor to implement reform, and “looks forward to reviewing and working collaboratively with lawmakers and the OIG on any legislative solutions.”

In his report, Neumer cited the inability to issue a finding to the registry in a particularly egregious 2014 abuse case at Choate that the news organizations had highlighted. In that case, at least 48 hours passed before anyone at the facility reported abuse to authorities, though numerous workers later told state police investigators that the patient’s injuries were some of the worst they’d ever seen. Throughout the state police investigation, multiple employees coordinated their stories and lied about what happened and who witnessed it, according to state police records.

Three of those employees were charged with felony obstruction of justice and each later pleaded guilty to a misdemeanor for failing to report the abuse to authorities. But those workers remained on the state payroll for nearly eight years. Others who knew about the abuse but didn’t report it faced no penalties.

This fall, the inspector general issued findings against eight employees it said engaged in the cover-up and recommended firing those who still worked at the facility. The employees were dismissed, but the law only allowed the inspector general to report one worker to the registry, the person whom his office found had committed the abuse. As a result, nothing bars the other seven from working in other health care settings.

Neumer told the news organizations that his proposal defines “material obstruction” as withholding or altering documentation or recorded evidence; improperly influencing, threatening or impeding witness testimony; giving untruthful information during an interview; failing to cooperate in an OIG investigation and lying to law enforcement. Employees would not be punished for exercising their lawful right against self-incrimination in a criminal case, he said.

Legislators in the Illinois House and Senate toured Choate last year in the wake of the news organizations’ reports, and they have held private meetings about issues where legislative solutions may be needed.

A spokesperson for House Speaker Emanuel “Chris” Welch said he was “incredibly troubled” by the reports on Choate and is “closely reviewing” the inspector general’s recommendations.

At an unrelated news conference in September, Gov. J.B. Pritzker said that he had no plans to close Choate but would consider doing so if the facility was unable to improve safety conditions for patients. His spokesperson did not respond to specific questions about whether he believed the facility had since taken adequate steps to improve conditions.

In a statement issued last week, the spokesperson said that the governor worked with leaders at IDHS to implement reforms, and that he “looks forward to reviewing and working collaboratively with lawmakers and the OIG on any legislative solutions.”

by Molly Parker, Lee Enterprises Midwest, and Beth Hundsdorfer, Capitol News Illinois

Inside the Controversial Sales Practices of the Nation’s Biggest Title Lender

2 years 3 months ago

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

ProPublica and The Current previously covered title lending in Georgia in the article “How Title Lenders Trap Poor Americans in Debt With Triple-Digit Interest Rates.”

In her mid-20s, Cordelius Brown thought she had found the perfect job. She was thriving as a store manager at TitleMax, a Savannah, Georgia-based company that dominates a segment of the state’s subprime lending industry known as title lending.

Brown’s easy rapport and hustle made her a natural in convincing Georgians with few credit options to sign up for TitleMax’s lending product. She was earning more than she ever had, thanks to bonuses she received based on a percentage of her store’s profits made from the company’s targeted consumers — people like her own family who were struggling to make ends meet in low-wage service industry jobs, living on a fixed income or out of work because of poor health.

For people written off as credit risks by traditional lending institutions, a “title pawn” from TitleMax can help finance urgent needs. The transaction is straightforward: The company lends money in exchange for collateral — the title to the vehicle in which the customer drove to the store.

But Brown’s customers continued to struggle, despite the financing from TitleMax. A key reason, she came to believe, was that the actual costs of borrowing were being masked by the sales techniques used by the company, which is exempt from Georgia’s usury laws and can lend money at terms that would be illegal for other subprime lenders.

“I carry a lot of guilt,” the 35-year-old said. “My community trusted me. What the company was selling to the community wasn’t good for them.”

Brown believes TitleMax distorts the true cost of borrowing to its tens of thousands of customers annually in Georgia. (Malcolm Jackson for ProPublica)

In 2016, the Consumer Financial Protection Bureau fined TMX Finance, the parent company of TitleMax, $9 million after the federal regulator determined that it violated federal laws with unfair, deceptive and abusive acts toward customers in Georgia, Alabama and Tennessee.

The CFPB also placed TMX Finance under a consent order to ensure the company’s compliance with the laws.

But Brown and two other former managers at TitleMax stores across south Georgia told The Current and ProPublica that, despite ongoing scrutiny by the federal regulator, the company continued similar sales techniques that distorted and hid the true costs of borrowing in Georgia until as recently as 2021.

Brown and another former store manager agreed to go on the record with their experience at five separate stores in Savannah and Columbus, Georgia. The third, who also worked in Savannah, requested anonymity out of fear of legal entanglements for speaking out against the company, which last year posted $735 million in revenue and is known in its key market of Georgia for its litigious nature.

The Current and ProPublica also reviewed internal TitleMax company documents, emails and text messages that corroborated the former store managers’ allegations.

TitleMax’s top executives have been clear publicly that the company’s business model depends on repeated monthly interest payments by its 293,000 customers nationwide. Brown, who worked as a store manager at TitleMax for almost seven years, and former Savannah store manager Ted Welsh Lupica both said that the company’s business model was drilled into them in training, and that they faced repercussions for telling customers how to pay off their debt quickly or in full.

Welsh Lupica, a military veteran, said his supervisors told him to stop being transparent with customers about the true costs of borrowing.

Still, Welsh Lupica kept providing this information to his customers. “I would be explicit. I would tell them, ‘Look, you make $2,000 a month and you want a $2,000 loan.’ I’d tell them, ‘Even if you pay us $200 a month, you are going to be doing that for the rest of your life because that’s not going to pay down the loan’” with the triple-digit interest rate, said Welsh Lupica, who worked with Brown for a few months at a store on Savannah’s east side.

Welsh Lupica joined TitleMax in Savannah when COVID-19 lockdowns started. He didn't like what he saw as high-pressure and misleading sales tactics. (Malcolm Jackson for ProPublica)

The CFPB, which in December extended its consent order with TMX Finance through late January, declined to comment on the former store managers’ allegations.

Welsh Lupica quit TitleMax in September 2020 after he said he received a second oral reprimand for his transparent sales pitch and has pursued a different line of work.

Brown was fired in June 2021 for violating store policies, a move that came shortly after she had filed a complaint with the Equal Employment Opportunity Commission alleging racial discrimination by the company.

TMX Finance did not respond to requests for comment.

TitleMax, the nation’s largest title lender, boasts that it offers a rewarding workplace with plenty of upsides for employees who work hard. The company has a “passion for customer service coupled with a desire to create opportunity,” according to its website. “Fast-paced, dynamic, energetic — and just plain fun!”

In 2015, fresh from earning an associate degree in business, Brown liked what the company was promising. She had always been described as a natural salesperson. And she was familiar with TitleMax’s products: Her sister and some of her family’s acquaintances had taken title pawns.

When she was first hired in Columbus, Brown avidly consumed the company’s slickly produced training folder, paying close attention to TitleMax’s explanations of how employees could boost their monthly pay and get promoted. Employees would boost store profits — and receive a financial bonus — based on closing new accounts, the average size of title pawns and persuading customers to keep monthly interest payments coming in. Each of TitleMax’s more than 200 stores in Georgia tracks its own financials — which means, for store managers, “the more you sell, the more you make,” Brown said.

As an assistant store manager at the time, Brown was not aware that the system that sounded so good to her was running afoul of federal consumer protection laws.

The year after Brown was hired, in September 2016, the CFPB found that TitleMax’s businesses in three states had been violating multiple federal laws intended to protect Americans from predatory lenders or deceitful financial practices. In a 21-page consent order, the federal regulator described how the true costs of borrowing were hidden by TitleMax’s sales pitches and the company’s proprietary document known as a “voluntary payback guide,” which was given to customers to instruct them on ways to minimize their monthly payments without informing them that it could lengthen the time to pay off their debt. Those practices, the CFPB investigators concluded, “materially interfere with a consumer’s ability to understand that the longer the consumer takes to pay off the transaction, the more expensive the transaction will be, or to understand how much more expensive the transaction will be if paid off over a longer time.”

The result was that customers would owe their original debt to the company, even after making payments for many months or years — something that boosted profits for the company but was “unfair, deceptive or abusive” to customers, according to the CFPB.

TMX Finance did not admit to any wrongdoing but agreed to pay a $9 million fine.

Shortly afterward, in a lawsuit filed in the Magistrate Court of Dekalb County, Georgia, a retired Navy veteran made similar allegations that the voluntary payback guide he had signed at an Atlanta-area store was deceptive. (TitleMax successfully had the case transferred to federal court in Georgia.)

In court filings, TitleMax pushed back against the allegations. Its lawyers argued that the voluntary payback guide could not be construed as deceptive because it was not a legally binding document, and that the company followed federal Truth in Lending Act disclosures in its title pawn contracts. The judge cited these two arguments when he dismissed the lawsuit in the company’s favor in 2018.

Still, after TitleMax announced the CFPB’s order internally to its employees, Brown recalled that the voluntary payback guide disappeared from her TitleMax store. Sales techniques, however, didn’t change, she said.

By 2017, Brown had been promoted to store manager and had worked at two Columbus stores. She was being praised by superiors for increasing performance at the outlets, which served a primarily Black clientele. In 2019, she was promoted again and sent to a third store. Within months, her district supervisor and the regional vice president were applauding her work to store managers around the region, according to the emails reviewed by The Current and ProPublica.

Brown said her success came down to building trust with potential customers and her long hours hustling after payments from delinquent customers.

Brown and other store managers in Georgia were still boosting customer interest in the company’s title pawn contracts by emphasizing the monthly interest rate that TitleMax would charge, generally between 9.9% and 12.9%, according to a review of corporate documents and an analysis of contracts by The Current and ProPublica. In Georgia, however, because the contracts are structured to last only 30 days and customers are allowed to roll over the contract an unlimited amount of times, the true costs of borrowing remained opaque.

From July 2019 through June 2022, roughly 210 TMX Finance stores in Georgia under the brand names TitleMax and TitleBucks issued new title pawns for approximately 47,000 vehicles annually. They represented more than 60% of the state’s total volume of title pawns. In November, a review of more than two dozen Georgia title pawn contracts conducted by The Current and ProPublica found that annual interest rates in typical TitleMax contracts ranged from 119% to 179%.

Brown said she focused on collecting those repeat monthly payments in line with her corporate training and relished the role. She couldn’t recall ever talking to her hundreds of customers about an amortization schedule that would reduce their principal and finally get their account balance to zero. Her training made it clear that the company never expected her to do that, she said.

Yet Brown was deeply affected by a wave of customers telling her of their stress and worry when they couldn’t reduce their debt.

Robert Jones, an elderly Black man who lives on fixed income in Columbus, was one such customer. He used TitleMax multiple times when he was facing medical debts from his treatment for emphysema. In the more than two years of making monthly payments to the company, Jones said, he dealt with at least four different managers, and Brown was the only one who cautioned him about adding on to his debt load of $2,000 to pay for a new, expensive medicine with an additional title pawn. Brown “worked hard to help me understand which way was up” in what he saw as confusing contractual terms, Jones said.

Still, Jones eventually had to borrow more money from TitleMax because of his lingering medical debts, a move that compounded his struggles to get out of what he called his “debt trap” with the company.

In other cases, Brown decided to be even more proactive in helping customers find solutions to their debt problems.

In November 2019, Brown advised four longtime TitleMax customers, each of whom owed around $10,000, about securing an installment loan with a lower interest rate from another lender to pay off TitleMax. When they did, Brown’s Columbus-area district director noticed these lump-sum payoffs. He then chastised Brown for losing what had been high-paying repeat monthly accounts, according to a text message reviewed by The Current and ProPublica. The district director told her to “stay aggressive,” according to the text exchange.

“Our customers are decent, hardworking people. They aren’t bums,” Brown told The Current and ProPublica. “But to TitleMax, they just have one purpose: money.”

In February 2020, TitleMax asked Brown to move to Savannah and take over a struggling store there. She was nervous — the city was more than four hours away from her family — but she took the offer that she believed would bring her another promotion. She had dreams of being the first in her family to buy a home, and a career at TitleMax was a way to achieve that.

But Brown couldn’t square the idea of getting ahead personally with what she was starting to believe was an ambiguous business model. That understanding solidified that spring when a new assistant manager was assigned to her store.

Welsh Lupica was mustering out of the Air National Guard just as the global economy was shutting down because of the COVID-19 epidemic. He needed a job to help pay the bills, and TitleMax, which had been declared an essential business by Georgia Gov. Brian Kemp, was hiring as industries across the state remained shuttered.

Welsh Lupica went through his TitleMax training with a more jaundiced eye than Brown had. He recalled asking during his training whether TitleMax used predatory practices and whether TitleMax was among the title lenders that had actively lobbied against a push to cap interest rates in Nevada at 36% to protect consumers against high-interest subprime lenders.

“In the military, I got a lot of financial education. We were always targets for that kind of crap,” Welsh Lupica said, referring to predatory lenders. The Pentagon, alarmed by the national security risks posed by the number of service members struggling to pay off debt, worked to strengthen federal laws protecting them from high-interest financial instruments, including title loans. “I wanted to know, ethically, what I was signing up for.”

Welsh Lupica said he was assured that TitleMax worked within the law, and that the company was a community asset.

Welsh Lupica began to feel differently, however, soon after he went to work with Brown at the TitleMax store on Skidaway Road in east Savannah, a mile away from Georgia’s first historically Black university and surrounded by leafy neighborhoods where a mix of working-poor and professional Black families lived.

Welsh Lupica and Brown formed a quick attachment as she taught him, a white man, how to gain the trust of their majority Black customers. That included tutorials on how to talk to older Black people, to drop some of his ramrod military formality and to be more self-deprecating in the store.

Brown, meanwhile, said Welsh Lupica opened her eyes to how the sales techniques that TitleMax had taught them as standard business practices confused customers about the true costs of a title pawn. Welsh Lupica explained to her how the minimum monthly payments that the company told them to emphasize with customers would lead people into a debt trap. Those minimal monthly payments would never decrease the principal, he told her.

“Customers who come to us looking for $2,000 or even $200 are not the type of people who can pay back that money at the end of the month. I knew that my customers would be paying month after month after month, but I didn’t realize how impossible it was,” Brown said.

Venus Lockett, a single parent who lives near Atlanta, turned to TitleMax when she couldn’t get a traditional loan because of her low credit score. The Atlanta-area store she dealt with never offered a printed contract, she said, and it took multiple trips dealing with multiple managers to get a clear sense of her debt.

Lockett said she would definitely have thought twice about signing a title pawn contract had she received the type of transparent sale pitch that Brown and Welsh Lupica offered. “You walk into TitleMax because you are desperate for any help to keep your kids warm and fed. But even desperate people can hear, if they are told plainly, what a terrible deal” a title pawn is, Lockett said.

In the spring of 2020, Brown decided to implement more transparency before customers signed their contract, something she saw as beneficial for them and the company. “We were there to make money for ourselves and TitleMax, and we could do that by building trust with the customer,” Brown said.

One such strategy was to print the sales contract — the only document that showed the annual interest rate — for customers before they signed it. Verbally, Brown and her team continued to talk about the monthly payments but described that as a fraction of the total annual cost of borrowing. They also clarified with customers that the minimum payment due each month would only cover interest, and that larger monthly payments would be necessary to get rid of the principal. “I would tell them, ‘I don’t care if you only have an extra dollar or $5, you need to give that to me as well,’” Brown recalled. “‘Otherwise, I’m going to see you in here month after month until the day you die.’”

The standard TitleMax procedure is to simply show customers contracts on a digital screen, not in a physical copy, according to the three former store managers. The only time a customer sees the annual interest rate is on the final contract, they said.

The third former store manager, who worked at two other TitleMax locations in south Georgia, confirmed that the sales techniques adopted by Brown and Welsh Lupica were not part of TitleMax’s standard routine. “We were trained to keep customers paying [their monthly interest], not how to tell the customer how to pay off the loan,” the former store manager said.

By late spring, however, the company got wind of the transparent sales pitch that Brown and Welsh Lupica had adopted — and communicated its disapproval, they said. Brown said her relationship with the company deteriorated, as she became emboldened to speak up against what she saw as workplace problems and to advocate for customers struggling to pay their title pawns.

Welsh Lupica, meanwhile, was transferred in June 2020 out of Brown’s store. He was sent to TitleMax’s flagship store in Savannah, which serviced over a million dollars in customer accounts each year. He didn’t adhere to the hard-nosed sales techniques that were routinely employed there, such as trying to get customers to agree to a higher amount of financing than they said they needed.

Instead, Welsh Lupica tried to continue the practice he had adopted at Brown’s store. But he said he was reprimanded and told to stop, especially his habit of printing the sales contracts for customers.

Feeling uneasy about the business practices, Welsh Lupica resigned in September 2020. “Most people who come to us are financially challenged,” said Welsh Lupica, who is now a Chatham County firefighter. “They rely on trust with the store manager.”

As 2020 continued, Brown became increasingly disillusioned with her work, especially with how the company dealt with Black employees and customers.

The pandemic was ravaging Georgia’s Black community — yet TitleMax did not pay for COVID-19 tests for employees in south Georgia, according to the three former store managers. Brown also complained to human resources and her district director that she had to work a full month without a day off or lunch breaks, while white managers in nearby stores were granted those basic rights, according to a civil rights discrimination lawsuit she later filed against the company, as well as the emails and text messages reviewed by The Current and ProPublica. Welsh Lupica confirmed Brown’s predicament. “Black employees were treated differently. I saw it happen,” he said.

The company also ignored pleas from Brown to try to evict a group of suspected drug users who slept in her store’s parking lot and made her and other employees feel unsafe, according to Brown’s lawsuit, as well as the reviewed company communications.

In October 2020, Brown was physically attacked as she was closing her store for the night, according to medical records and company communications. She took a leave of absence and returned to work in February 2021 because she needed a paycheck.

Brown said she resumed her practice of transparently explaining the true costs of borrowing to her customers. But she hit a wall a couple of months later when an elderly Black woman came into her store. Brown remembered watching the woman struggle painfully to walk from the parking lot to discuss her overdue account. The woman had had a stroke, she explained, and TitleMax had repossessed her car while she was in the hospital. Brown fought successfully with the company to have it pay $200 for a towing company to return the customer’s car. Yet what Brown saw as a decision affecting her customer’s life, the company seemed to view it as a mere accounting issue, according to company communications reviewed by The Current and ProPublica.

For Brown, that was the last straw. She filed a workplace grievance with the EEOC, alleging racial discrimination by TitleMax. In her claim, Brown listed multiple occurrences of what she described as unequal treatment she received as a Black woman compared with white colleagues, including being passed over for a promotion, unequal enforcement of the rules for breaks and vacation, and the use of racially insensitive language by her superiors.

In June 2021, TitleMax fired her, citing multiple violations of protocol, including once mistakenly repossessing a wrong vehicle.

Seven months later, the EEOC closed Brown’s complaint, declining to rule either for Brown or for the company. “The EEOC makes no finding as to the merits of any other issues that might be construed as having been raised by this charge,” the final report said. Employment and labor lawyers in Georgia say the EEOC rarely pursues the thousands of complaints it receives each year, leaving aggrieved workers in limbo about their allegations of discrimination. The EEOC declined to comment on the case, citing confidentiality.

At least two other former TitleMax employees in Georgia have sued the company in the last 10 years alleging racial discrimination or sexual harassment after filing EEOC complaints. One case was settled, but its terms are unknown. The other was dismissed before the discovery phase. The company’s employment contract had a mandatory arbitration clause — a closed-door dispute mechanism that companies often use to prevent workplace allegations or criticisms from becoming public. The EEOC declined to provide the total number of complaints filed against TitleMax, citing privacy laws.

In April, Brown filed her lawsuit against the company in the federal district court for the Southern District of Georgia, hoping that the courts would take her complaints more seriously. TitleMax never replied to the substance of Brown's allegations and instead argued for the case to be thrown out on procedural grounds. This month, the judge dismissed the case, which Brown filed on her own and without legal counsel, for technical reasons, faulting her for not presenting the legal complaints in a professional or appropriate manner. He did not rule on the merits of the case.

Brown also emailed a letter to the CFPB, citing her allegations of racial discrimination and TitleMax’s business practices as potential violations of federal law. But she did not use the dedicated email portal or phone number that the CFPB spokesperson said the agency encourages whistleblowers to use, and she has not heard back from the federal regulator. The CFPB declined to comment on Brown’s allegations, citing the ongoing consent order with TitleMax.

Brown now works for another Savannah-based company that sells furniture to elderly residents with mobility issues. She makes less money but feels better about work at the end of the day. At least one former TitleMax manager also works at the business, and they often swap stories about their shared experience.

“You can make money and be honest with your customers,” Brown said. “That’s the bottom line. In seven years at TitleMax, I didn’t see a single supervisor who understood that and wanted to do business in that way.”

Mollie Simon contributed research.

by Margaret Coker, The Current

Websites Selling Abortion Pills Are Sharing Sensitive Data With Google

2 years 3 months ago

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Online pharmacies that sell abortion pills are sharing sensitive data with Google and other third parties, which may allow law enforcement to prosecute those who use the medications to end their pregnancies, a ProPublica analysis has found.

Using a tool created by the Markup, a nonprofit tech-journalism newsroom, ProPublica ran checks on 11 online pharmacies that sell abortion medication to reveal the web tracking technology they use. Late last year and in early January, ProPublica found web trackers on the sites of at least nine online pharmacies that provide pills by mail: Abortion Ease, BestAbortionPill.com, PrivacyPillRX, PillsOnlineRX, Secure Abortion Pills, AbortionRx, Generic Abortion Pills, Abortion Privacy and Online Abortion Pill Rx.

These third-party trackers, including a Google Analytics tool and advertising technologies, collect a host of details about users and feed them to tech behemoth Google, its parent company, Alphabet, and other third parties, such as the online chat provider LiveChat. Those details include the web addresses the users visited, what they clicked on, the search terms they used to find a website, the previous site they visited, their general location and information about the devices they used, such as whether they were on a computer or phone. This information helps websites function and helps tech companies personalize ads.

But the nine sites are also sending data to Google that can potentially identify users, ProPublica’s analysis found, including a random number that is unique to a user’s browser, which can then be linked to other collected data.

“Why in the world would you do that as a pharmacy website?” said Serge Egelman, research director of the Usable Security and Privacy Group at the International Computer Science Institute at the University of California, Berkeley. “Ultimately, it’s a pretty dumb thing to do.”

Representatives for the nine sites did not respond to requests for comment. All were recommended on the popular website Plan C, which provides information about how to get abortion pills by mail, including in states where abortion is illegal. Plan C acknowledged that it does not have control over these sites or their privacy practices.

While many people may assume their health information is legally protected, U.S. privacy law does little to constrain the kind or amount of data that companies such as Google and Facebook can collect from individuals. Tech companies are generally not bound by the Health Insurance Portability and Accountability Act, known as HIPAA, which limits when certain health care providers and health plans can share a patient’s medical information. Nor does federal law set many limits on how companies can use this data.

Law enforcement can obtain people’s data from tech companies such as Google, whose privacy policies say the companies reserve the right to share users’ data with law enforcement. Google requires a court order or search warrant, which law enforcement can obtain with probable cause to believe a search is justified. The company received more than 87,000 subpoenas and search warrants in the U.S. in 2021, the most recent year available; it does not provide a breakdown of these requests by type, such as how many involved abortion medication.

In a statement, Steve Ganem, product director of Google Analytics, said: “Any data in Google Analytics is obfuscated and aggregated in a way that prevents it from being used to identify an individual and our policies prohibit customers from sending us data that could be used to identify a user. Google has strict policies against advertising to people based on sensitive information.”

Google pledged last year that it would delete location history data related to people’s visits to abortion and fertility clinics, but the company has not announced any changes since then related to data involving abortion pill providers or how it handles government requests for data. A Google spokesperson did not respond when asked whether the company has turned over any data to law enforcement about users of online pharmacies that provide abortion medication or whether it has been asked to do so.

“This is problematic and dangerous — both the potential access that law enforcement has to figure out who is violating our new state bans and that we’ve let tech companies know so much about our private lives,” said Anya Prince, a law professor at the University of Iowa who focuses on health privacy. “It shows us how powerful this data is in scary ways.”

Medication Abortion

Using medications to induce an abortion involves taking two drugs. Mifepristone blocks the hormone progesterone, effectively stopping the growth of the pregnancy. Misoprostol, taken a day or two later, helps the uterus contract, emptying it of pregnancy tissue. This drug combination is the most commonly used method of abortion, accounting for more than half of abortions in the U.S.

Demand for the drugs is expected to grow amid reproductive health clinic closures and the enactment of a cascade of state laws banning abortion since the Supreme Court overturned Roe v. Wade last June.

At least 13 states now ban all methods of abortion, including medication abortion, though some allow exceptions for medical emergencies, rape or incest. People who are unable to shoulder the cost of traveling to states where abortion is legal are increasingly turning to online pharmacies to buy abortion pills without prescriptions. The mail-order pills can be taken at home, and they’re generally cheaper than abortion services provided in clinics — about $200 to $470 from online pharmacies, compared to about $500 for a first-trimester abortion conducted in a clinic.

Approved by the U.S. Food and Drug Administration in 2000, mifepristone — the first tablet in the two-step regimen — can be used to help end pregnancies in their first 11 weeks. The agency initially restricted the drug, requiring patients to get it from clinicians in person.

Mifepristone became more accessible during the COVID-19 pandemic, when the FDA temporarily relaxed the requirement that people visit providers in person to get the drug. The agency scrapped the requirement altogether in December 2021, allowing people to obtain abortion medication through the mail after a telemedicine appointment.

Then, on Jan. 3, the FDA published new rules allowing retail pharmacies to dispense mifepristone to people who have prescriptions, potentially expanding access to medication abortion. But those rules do not help pregnant people in more than a dozen states where abortion bans prevent pharmacies from offering the drug.

A week later, Alabama's attorney general said that anyone using abortion pills could be prosecuted under a state law that penalizes people for taking drugs while pregnant — despite the state’s abortion ban, which excludes abortion seekers and penalizes providers instead. He then appeared to back off his statement, saying the law would be used only to target providers.

Nineteen states already ban the prescription of abortion drugs through telehealth, meaning people in those states must see a clinician in person or find abortion medication online on their own. Many appear ready to do the latter. After a draft of the Supreme Court’s abortion decision leaked last May, internet search traffic for medication abortion surged. Dozens of people have posted descriptions online of their experiences getting abortion pills, some in restrictive states. One Reddit user recounted their ordeal on an abortion subgroup in October: “I’m in TX so i ordered through abortion RX. It said it’ll be here soon like 5-6 days. I’m extremely nervous I’m doing this by myself, but I’ve looked and don’t have a lot of time to make a decision. This is the fastest way.”

A New Legal Era

Just two states — Nevada and South Carolina — explicitly outlaw self-managed abortion. But that hasn’t stopped prosecutors in other states from charging people for taking abortion drugs.

Prosecutors have cited online orders of abortion pills as evidence in cases charging people with illegal abortions in several states, including Georgia, Idaho and Indiana. And in at least 61 cases from 2000 through 2020 spread across more than half the states in the country, prosecutors investigated people or ordered their arrest for allegedly self-managing abortions or helping someone else to do so, according to a report by If/When/How, a reproductive justice advocacy organization. In most of these cases, people had used medication for their abortions.

Those prosecutors interested in criminalizing abortion are aided by state and private surveillance.

“This is an entirely new era,” said Ari Waldman, a professor of law and computer science at Northeastern University. “We’re moving to a modern surveillance state where every website we visit is tracked. We have yet to conceptualize the entire body of laws that could be used to criminalize people getting abortions.”

Law enforcement can use people’s behavior when visiting websites that sell abortion pills as evidence to build cases against those suspected of having abortions. Investigations and charges in these cases overwhelmingly stem from reports to law enforcement by health care providers, trusted contacts or the discovery of fetal remains, legal experts say. Once authorities launch an investigation, they can use online searches for abortion pills as part of the evidence.

“This information can tell a district attorney that you went to an abortion website and you bought something,” Waldman said. “That might be enough to get a judge to get a warrant to take someone’s computer to search for any evidence related to whatever abortion-related crime they’re being charged with.”

This was true even under the more limited abortion restrictions under Roe. For example, in 2017, prosecutors in Mississippi charged Latice Fisher with second-degree murder after she lost her pregnancy at 36 weeks. Prosecutors used her online search history — including a search for how to buy abortion pills online — as evidence. Fisher’s murder charge was eventually dismissed.

“We have a private surveillance apparatus that is wide and is largely unregulated,” said Corynne McSherry, legal director at the Electronic Frontier Foundation, a nonprofit that promotes digital rights. “Now Google knows what you’re searching. This is a real threat. If any third party has your information, it means your data is no longer in your control and it could be sought by law enforcement. This is 100% a worry.”

Opting Out

Many people aren’t aware of how to opt out of sharing their data. Part of the problem is that when users visit online pharmacies that share users’ information with third parties such as Google, their information can then be shared with law enforcement if allowed by the privacy policies of those third parties.

“The mere fact that you’ve used the online pharmacy to buy abortion medication, that info is now collected by Google and it is now subject to the privacy policy of Google such that you have no way of opting out of that, because it’s entirely separate from the website you went to,” Waldman said.

Users can install a web browser, such as Brave or Firefox, that offers privacy protections. They can also install browser extensions to block third-party trackers and adjust the privacy settings on their browsers. But these steps aren’t always foolproof. Tech companies can still subvert them using hidden tools that users cannot see, and they likely retain vast troves of data that are beyond users’ control.

“Individuals are not going to solve this problem; technical solutions aren’t going to solve this problem,” said Chris Kanich, associate professor of computer science at the University of Illinois at Chicago. “These trillion-dollar companies of the economy aren’t going anywhere. So we need policy solutions.”

Congressional lawmakers have spent years discussing a national data privacy standard. The bill that has made the most progress is the American Data Privacy and Protection Act. Introduced last June by a bipartisan group of lawmakers who intended to strengthen consumer data protections, the bill limited companies from using any sensitive data, including precise geolocation information or browsing histories, for targeted advertising or other purposes. Companies would have been required to get consumers’ express consent before sharing sensitive data with third parties. The legislation passed out of its assigned House committee in July.

Another bill, the My Body, My Data Act, also introduced last summer, would limit the reproductive health data that companies are allowed to collect, keep and disclose.

But neither bill has passed. The My Body, My Data Act had few, if any, Republican supporters. Plus, legislators couldn’t reach an agreement over whether the American Data Privacy and Protection Act should supersede state privacy laws such as the California Consumer Privacy Act of 2018, which provides data privacy protections for consumers in the state.

Privacy experts say the most effective way to protect users’ data is for online pharmacies that sell abortion medication to stop collecting and sharing health-related data.

Companies selling abortion pills should immediately stop sharing data with Google, said Cooper Quintin, senior staff technologist at the Electronic Frontier Foundation.

“Web developers may not have thought they were putting their users at risk by using Google Analytics and other third-party trackers,” Quintin said. “But with the current political climate, all websites, but especially websites with at-risk users, need to consider that helping Google, Facebook and others build up records of user behavior could have a potentially horrific outcome. You can't keep acting like Roe is still the law of the land.”

Are You in a State That Banned Abortion? Tell Us How Changes in Medical Care Impact You.

Update, Jan. 20, 2023: This story has been updated with additional comment from Google provided after publication.

by Jennifer Gollan

A School Superintendent Says Our Story About Expulsions in His District Is Incorrect. Here’s Why He’s Wrong.

2 years 3 months ago

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

Are you part of the Gallup-McKinley County Schools community? We’d like to hear from you.

Over the four academic years ending in spring 2020, Gallup-McKinley County Schools reported to New Mexico officials that it had expelled students at least 211 times, far more often than school districts in the rest of the state.

Yet on Jan. 9, the district’s superintendent told school board members it had expelled just over a dozen students over the past seven years. He called a New Mexico In Depth and ProPublica analysis spotlighting the district’s high expulsion rates, published in December, “completely false.”

“Being expelled from school is very, very rare in Gallup-McKinley County Schools,” Superintendent Mike Hyatt told the five elected board members. “Only 15 students have actually been expelled from GMCS in the last seven years.” Those expulsions stemmed from serious infractions including possession of drugs, firearms and a knife, physical and sexual attacks, and a stabbing, he said.

Gallup-McKinley’s own discipline data, reported to the state Public Education Department each year, contradicts Hyatt’s assertions.

The district, which enrolls about a quarter of New Mexico’s Native students, was responsible for at least three-quarters of Native expulsions statewide during the four-year period, according to the analysis.

Hyatt’s figure was also much lower than what the district reported to the U.S. Department of Education’s Office for Civil Rights in recent years.

He didn’t explain how he arrived at the figure he cited or the racial or ethnic breakdown of the students involved. Nor did he respond to requests for comment or disclose written materials from his report to the board, which the news organizations requested.

School board members did not ask Hyatt any questions. They unanimously voted to approve his report as a show of their support.

Statewide, Native American students were expelled over the four-year period far more often than any other group and at least four times as often as white students. Gallup-McKinley was responsible for most of that disparity, according to the news outlets’ analysis. The district’s annual expulsion rate was 4.6 per 1,000 students — at least 10 times as high as the rest of the state.

Native Students Face Harsher Punishment Across New Mexico

Native students in New Mexico experience higher annual rates of expulsions and incidents involving police than white students. In Gallup-McKinley, students across the board are punished more harshly than those in the rest of the state, but the large Native student body is still disciplined at higher rates than white students.

(Source: ProPublica analysis of New Mexico Public Education Department STARS data. Chart by Joel Jacobs.)

About three-quarters of Gallup-McKinley’s roughly 12,000 students are Native American, most of them Navajo. It has the largest Native enrollment of any public school district in the United States, according to federal figures.

In his comments to the board, Hyatt distanced himself from disciplinary decisions, noting that the vast majority are handled by teachers and principals. “They’re falsely attacking our staff, our teachers, our administration,” he said of the news organizations. “They’re saying that they are making racial decisions when they implement discipline.”

Hyatt told the board that the district has “cut in half” its discipline referrals. He did not respond to the news outlets’ questions about what time period that was based on or the types of student discipline it included.

His claim that the district had expelled just 15 students in seven years could stem from a new definition of expulsion recently adopted by the district. Student behavior handbooks reviewed for recent academic years, including 2021-22, defined expulsion as the removal of a student from school for 90 days or longer.

The handbook for the current school year defines expulsion as a “permanent” removal. However, that change would not affect the number of expulsions the district reported in prior years.

The news outlets asked Hyatt in an email if the district had retroactively used the new definition to arrive at the lower figure. He did not respond.

School districts are free to develop their own discipline policies. But they all report infractions and punishments to the state via a centralized system. The state uses that data to track racial disparities among special education students, as required by federal law.

Most of the expulsions Gallup-McKinley reported to the state for the four years analyzed by the news outlets listed a duration of 90 days. More than 50 expulsions were longer than 90 days, including roughly two dozen with a duration of 365 days.

At the school board meeting, Hyatt suggested that discipline data reported to the state can be slipshod but said he “wouldn’t go into” the details other than to say errors sometimes happen. “As far as data, there’s no set, hard-and-fast way you have to submit something,” he said.

That’s not entirely true. The state Public Education Department provides a user’s manual that details what districts must report and how to do so. Asked about that, Hyatt did not reply.

He acknowledged at the board meeting that he had refused to speak with the news organizations about student discipline, though he also complained that he was not given a chance to respond before the story was published in the Gallup Independent.

New Mexico In Depth and ProPublica repeatedly sought interviews with Hyatt over most of the last year. He was copied on nearly 100 emails between the news organizations and his staff. More than a month before the story was published, he was provided with a detailed list of findings and invited to respond or correct any inaccuracies. He sought no corrections from the news organizations before or after the story’s publication.

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Students in Gallup-McKinley schools faced 735 disciplinary incidents involving law enforcement, according to the news organizations’ analysis. That amounts to a rate nearly four times as high as the rest of the state.

Hyatt said that was “outlandish.” He claimed the story “tries to paint the picture” that “we call the police all the time and have students arrested.”

He said schools involve the police only when there are “life and safety issues,” when officials need to turn over illegal drugs seized from students “or if there’s other types of things that we notice where there may be something else the police need to be notified about.”

The district’s reports to the state included cases in which law enforcement, including juvenile probation officers, were called for infractions such as disorderly conduct and tobacco use.

Law enforcement was involved in 193 incidents involving Native students accused of disorderly conduct from 2016-17 to 2019-20. About 9 in 10 of those incidents occurred at Gallup-McKinley schools, records show.

Hyatt also claimed that the disciplinary experience of a seventh grade student profiled in the article wasn’t accurately reported. The news organizations obtained the child’s records with permission of his grandmother to verify his account.

Hyatt suggested the child attended summer school in 2022, which his grandmother disputed. “I asked them if he could go online [during his expulsion period] and then asked if he could go to summer school,” she said. “We were denied.”

The child is now repeating seventh grade after missing too many days last year.

Joel Jacobs contributed reporting.

by Bryant Furlow, New Mexico In Depth

Maryland AG Seeks to Preserve Massive Set of Sexual Assault Evidence

2 years 3 months ago

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Two years ago, ProPublica showcased the remarkable tale of a doctor who saved physical evidence from more than 2,000 rape exams starting in the 1970s, years before police began to preserve forensic DNA. Baltimore County police tested just a tiny portion of the samples decades later and solved more than 80 cold cases; they made dozens of arrests and exposed serial rapists, including a man who assaulted at least 25 women and murdered one. The evidence also exonerated an innocent man and gave survivors life-changing closure.

Baltimore County law enforcement could have prioritized testing such a fruitful trove. Instead, it falls through loopholes in laws meant to preserve rape kit evidence and expedite testing.

Each year, the evidence saved by the doctor in the form of glass slides has been excluded from a state-mandated inventory of untested rape kits. A police spokesperson said they did not list the evidence because they were not in possession of it at the time. The slides were collected and stored at the hospital where the doctor worked, the Greater Baltimore Medical Center, before the current standardized sexual assault examination system. The slides are also excluded from a 2019 state law that mandates testing for most newer kits.

Though the samples have been tested in fits and starts over the past two decades, those from about 1,800 cases remain untested and off the books.

Now, Maryland’s new attorney general and several other officials are looking for ways to safeguard the collection, incorporate it into yearly inventories and oversee its processing amid growing concerns of its vulnerability.

“I am concerned that evidence from approximately 1,800 sexual assault exams has not yet been processed and am committed to ensuring that this evidence is protected from destruction,” the recently sworn-in Attorney General Anthony Brown wrote in a statement.

Zenita Wickham Hurley, an attorney in Brown’s office who chairs the state committee overseeing Maryland’s untested rape kit inventory, said the group originally advised police to only catalog evidence they had collected. But she said her panel is in discussions with police officials regarding their progress in testing the hospital slides and “the appropriateness of increased state oversight of this evidence.”

She credited ProPublica’s reporting for helping to shed light upon the importance of the trove and said that going forward, the committee will be working to increase transparency and oversight of the testing and setting up legal agreements or legislative amendments to protect the slides.

Shelly Hettleman, a state senator from Baltimore County who has led major legislative efforts involving the preservation and testing of rape case evidence, is working to secure either legislation or a legal agreement with the hospital to make sure none of the remaining slides are destroyed. “I am very interested in making sure those slides have legal protection,” she said.

The law should be clarified either through amendment or regulation to protect the slides, and in the meantime, law enforcement and the hospital should commit to preserving them, said Lisae Jordan, executive director of the Maryland Coalition Against Sexual Assault. “The slides are rape kits: They contain evidence collected from the bodies of sexual assault survivors and were retained to help determine who committed a rape. … Any destruction of the slides would be contrary to the spirit of the law and possibly the letter of the law.”

A Baltimore County police spokesperson wrote to ProPublica that once the slides are in their possession, they are handled under “the same investigative guidelines as other Sexual Assault biological evidence.”

Baltimore County Executive John A. Olszewski Jr., who has authority over the Police Department and just replaced its chief, said: “Our administration remains committed to doing everything we can to ensure victims of sexual assault receive the support they deserve and that law enforcement effectively utilizes every resource at their disposal to deliver justice. While we are proud to say that Baltimore County has made improvements, we know that we still have farther to go and welcome additional state support to expand and improve testing progress. Moving forward, we are focused on making sure Baltimore County’s next police chief makes this critical work a top priority for years to come.”

Nineteen states and Washington, D.C., have eliminated their rape kit backlog, according to the national advocacy group Joyful Heart. Maryland’s most recent audit of untested rape kits showed it had about 7,000 (not including slides from the 1,800 hospital cases that are not in the inventory). That would place it near the top in the nation behind California, Texas and North Carolina for untested rape evidence, though many states still have no public inventory.

The Maryland state legislature passed an audit law in 2015 because before that, many police departments refused to count and disclose rape kits. Getting police to comply with the law is still a challenge, Hurley said, despite the evidence being “one of our most critical tools for securing justice for survivors, holding perpetrators accountable and protecting public safety.”

The Baltimore County Police Department also has a long history of destroying rape case evidence. The department used to discard rape kits as early as a year after the exam, citing limited and costly storage space, though officials never put a dollar figure on such storage (a rape kit is the size of a legal envelope, and researchers have found that not testing kits is far more expensive and harmful to public safety). The state legislature mandated a 20-year retention of rape kits in 2017.

Dr. Rudiger Breitenecker had several thousand forensic samples he had saved from over 2,000 exams when he retired in 1997. His two-pronged preservation system of saving multiple glass slides and frozen glass tubes from each exam led to freezers and cabinets full of evidence. Each sample was carefully labeled and documented in logbooks.

The new rape kit system that replaced the doctor’s did not include frozen tubes or retaining the specimens stored at the hospital. Everything would henceforth be sent to the police.

The hospital sent all of the stored frozen tubes over to police headquarters, but it retained the glass slides. The police did not keep the tubes frozen, which the doctor later said would have ruined them. However the forensic lab director at the time said police transferred the frozen tubes to sterile material and stored them at room temperature.

It is unclear what was salvaged from the tubes. The police have been doing their own investigation of what remains from the doctor’s savings and what happened in its own lab decades ago. A Police Department spreadsheet documenting their findings from what the doctor had saved shows only about 50 cases with some vaginal wash material in police storage. Police have not responded to questions about what happened with the rest. Hettleman told ProPublica she did not know of the frozen tubes before our questions.

In 2019, the county police announced a renewed effort to test the doctor’s evidence thanks to private funding. But COVID-19-related delays and a deluge of DNA at private and local government labs have slowed the process.

The survivor community is making a renewed push to test the evidence now that the Attorney General’s Office has concluded a four-year investigation into the Archdiocese of Baltimore. The office identified 158 priests accused of sexually abusing and physically torturing more than 600 victims over the past 80 years.

Among the “credibly accused” is a late priest, Anthony Joseph Maskell, who worked as a counselor at Archbishop Keough High School and served as a Baltimore County police chaplain in the 1970s. The archdiocese has so far paid $462,000 to 16 of Maskell’s abuse victims, according to the Baltimore Banner. As chronicled in the 2017 Netflix series “The Keepers,” former Keough students said they were also abused by police officers he brought into the school.

The doctor’s slides stand as the last remaining evidence from sexual assault going back to the 1970s. Many of the victims did not get rape exams or report to law enforcement. Most victims of sexual assault do not report to police, and many clergy survivors said their lives were threatened. Now, survivors wonder whether other victims of their same predators went to the rape care center at the Greater Baltimore Medical Center while Breitenecker was collecting evidence.

Recent research shows sex offenders are far more serial than previously thought; they also often switch victim types between strangers and acquaintances, young and old and Black and white more than previously assumed.

Though it would require genealogy testing, as the vast majority of the accused men were never arrested, survivors wonder whether the slides might identify former clergy and Baltimore County police.

“I am starting to question whether the Baltimore County police, who have jurisdiction over this DNA evidence, is the right place to be deciding whether or not these cases actually get investigated,” Laura Neuman, a survivor whose attacker has shown up 11 times so far in the hospital slide cases, said in a recent WBAL radio show discussing clergy abuse. Neuman has lobbied local and state officials for quicker DNA testing for survivors, some of whom have since died. “Because we know when we investigate them, we get resolution. We know that cases get solved.”

Former Keough student and survivor Jean Hargadon Wehner spoke about the abuse she suffered by Maskell and police officers in “The Keepers.” Of the Police Department, she asked: “How are they choosing which ones they are going to be testing? And who is observing that decision? I think it is important that there is no bias.”

In response to concerns of bias, Erica Palmisano, a Baltimore County spokesperson, said, “Investigations can and will be based on cases no matter who may be involved, and the county is willing to utilize outside support where appropriate.” She added that the county executive’s current search for a permanent chief of police will be driven in part by a commitment to sustained progress in sexual assault investigations.

Baltimore County police released on Wednesday their first website detailing their sexual assault kit workflow and statistics. The site does not include the evidence saved by the doctor. A spokesperson said police are considering doing so in the future.

Survivors seeking more information about their untested rape kit in Maryland can call the Maryland Coalition Against Sexual Assault at 833-364-0046 or email notification@mcasa.org. The Baltimore County Police Department Special Victims Unit Cold Case Squad can be reached at 410-887-2223.

by Catherine Rentz

A Sheriff in Louisiana Has Been Destroying Records of Deputies’ Alleged Misconduct for Years

2 years 3 months ago

This article was produced for Verite by Richard A. Webster, who covered the Jefferson Parish Sheriff’s Office as part of ProPublica’s Local Reporting Network in 2021-22. Sign up for Dispatches to get stories like this one as soon as they are published.

The Jefferson Parish Sheriff’s Office in Louisiana has been unlawfully destroying its deputies’ disciplinary records for at least 10 years, according to records provided by state officials responsible for overseeing the retention of records by state, parish and local agencies.

The finding comes at a time when the sheriff’s office is facing multiple lawsuits involving allegations of excessive force, racial discrimination and wrongful death at the hands of Jefferson Parish deputies. Attorneys have accused Sheriff Joe Lopinto of failing to discipline deputies and a lack of transparency when it comes to releasing records that might shed light on their history of complaints and disciplinary action.

The illegal destruction of disciplinary records can make it harder to hold deputies accountable in a court of law or track problem officers moving from department to department, said Sam Walker, emeritus professor of criminal justice at the University of Nebraska at Omaha.

The sheriff’s office was recently the subject of a year-long investigation by ProPublica and WWNO/WRKF, which found that JPSO rarely sustains complaints against its deputies. The sheriff’s office refused to provide the news organizations with copies of unsustained complaints, calling it overly burdensome and an invasion of privacy. The agency said it couldn’t even provide the number of complaints filed, stating such a number “does not exist.”

Like all public agencies, the Jefferson Parish Sheriff’s Office is required by law to secure approval from the Louisiana State Archives, a division of the Secretary of State’s Office, before destroying its public records. It also is required to secure approval for policies, or schedules, dictating how long public records are to be retained before they are eligible for disposal.

The sheriff’s office failed to do either, records show. The only JPSO records retention policy on file with the state concerns body-worn and vehicle-mounted cameras. That was approved in November. The sheriff has not sought approval for retention policies concerning any other public record, including disciplinary files, according to the state archives.

As for securing permission to destroy public records, state archivist Catherine Newsome said, “We do not have any disposal requests on file for JPSO.” The state archives maintains records of disposal requests for 10 years.

Newsome said the archives conduct “ongoing outreach” with agencies throughout the state regarding records retention policies, but there is little more they can do.

“We’re not a law enforcement or compliance agency. We don’t have any stick,” Newsome said. “There’s nothing in any of the statutes that say, ‘If an agency doesn’t do this within 30 days, the secretary can fine them $500 or penalize them.’ It is incumbent upon the agencies themselves to comply with these statutes.”

There are more than 4,000 state, parish and local agencies that must comply with state retention records law. The state archives have only four data analysts and a supervisor to handle the workload, making it extremely difficult for them to ensure every agency is following the law, Newsome said.

Destroying, damaging, altering or removing public records “required to be preserved in any public office or by any person or public officer” is punishable by up to a year in prison, a fine of up to $1,000 or both.

JPSO attorney Danny Martiny said the agency could not comment because of pending litigation. The sheriff’s office has denied all wrongdoing in court filings.

“Because They Are Expunged”

The records retention issue was recently raised as part of a federal civil rights lawsuit filed against Lopinto and seven deputies, among others, by the family of 16-year-old Eric Parsa in New Orleans federal court. The teenager died in January 2020 after sheriff’s deputies attempted to restrain him outside the Westgate Mall in Metairie. Parsa had a violent meltdown caused by his severe autism, according to the lawsuit. The suit asserted that one of the deputies, who weighed more than 300 pounds, sat on him for at least nine minutes.

The coroner ruled the teen’s death an accident as a result of excited delirium, with “prone positioning” as a contributing factor.

When attorneys for the family deposed Deputy Nick Vega, one of two deputies accused in the lawsuit of sitting on Parsa prior to his death, they asked him about his disciplinary history. Vega referred to several complaints that had not been revealed to the family’s attorneys during discovery, as required by law.

JPSO’s standard operating policy states that disciplinary records will be maintained for three years. After that period has expired, they will be “automatically expunged on a monthly basis from the date of complaint” for internal affairs cases and “citizen complaints and the date of occurrence” for disciplinary reports. The records will not be deleted if litigation has been filed against an employee, or if a court orders certain records to be preserved, according to the policy.

Though the sheriff’s office has an internal policy, the law requires it to submit that policy to the state for approval, which it has not done. And as the plaintiffs later noted in a court filing, automatic expungement — without first seeking state approval — is also against the law.

In October, Andrew Clarke and William Most, attorneys representing the Parsa family, filed a motion seeking court sanctions against the sheriff’s office for the destruction of disciplinary records. Beyond the apparent state law violations, they claim the sheriff’s office also violated a 2020 state court order the family secured mandating that it maintain all records relevant to the case.

“But despite all this, JPSO did not stop the destruction of officer disciplinary records. It was not until nearly a year later — after the January 2021 filing of this lawsuit — that JPSO began preserving disciplinary records,” the attorneys wrote.

The lawsuit claims the sheriff’s negligence in handling public records speaks to a more systemic problem of failing to “properly supervise, discipline or otherwise hold accountable deputies who failed to comply with the law.”

“Their disciplinary history may show a history of excessive restraint or force, or episodes casting doubt on credibility,” the attorneys wrote. “That history is now unavailable because JPSO destroyed it.”

In a response filed with the court, JPSO claimed it was not ordered or obligated to stop destroying disciplinary records prior to the lawsuit being filed in January 2021. Further, the agency said “to ensure that any relevant deputy was not subject to” Internal Affairs complaints, “the Sheriff had an officer review attendance records to confirm that none was absent due to suspension, which he argues proves no significant disciplinary action near or after the incident.”

The sheriff’s office accused the family of filing the motion for “harassment purposes.”

U.S. Magistrate Judge Donna Phillips Currault in a November ruling found that JPSO should have known that “evidence regarding the disciplinary and training histories of the officers involved in the incident” leading to Parsa’s death “would be relevant to potential future litigation” and had the “duty to preserve that evidence” by March 2020 at the latest. However, the family failed to prove JPSO destroyed evidence in “bad faith” or with a “desire to suppress the truth.” They also failed to prove that evidence relevant to the case had been lost, she stated in denying the request for sanctions.

Ashonta Wyatt, a leader in Jefferson Parish’s Black community who has pushed for reforms of the sheriff’s office, said the real problem with the agency is that it operates free of oversight.

“Who governs them? Who holds them to account?” Wyatt said of the sheriff’s office. “It’s not like you can go to a mayor, like you can in New Orleans, where the mayor is the governing person for the chief of police. There’s no governing body for them. They operate on an island.”

Other Large Agencies Keep Records for Far Longer

The New Orleans Police Department’s disciplinary records are “effectively retained forever,” according to NOPD’s Public Affairs Division.

“Our state-approved record retention states ‘active + 10 years,’ defining ‘active’ to be as long as the department exists, meaning these records should be kept until 10 years after NOPD no longer exists,” the division stated in an emailed response. NOPD secured approval from the state for its policy, along with the destruction of any documents.

The Louisiana State Police doesn’t dispose of disciplinary records until one year after the end of someone’s employment, according to a September report by the Louisiana Legislative Auditor entitled “Louisiana State Police: Comparison with Law Enforcement Agencies in Southern States.” The Texas Highway Patrol keeps them for five years after the end of a person’s employment, the Alabama Highway Patrol for six years and the South Carolina Highway Patrol for 15.

Emily Dixon, a coauthor of the auditor’s report, said securing state approval for the preservation and disposal of disciplinary records is vital to public safety given deputies or officers might move from parish to parish.

by Richard A. Webster, Verite

Help Us Investigate Museums’ Failure to Return Native American Human Remains and Cultural Items

2 years 3 months ago

Museums and other American institutions hold the remains of more than 100,000 Native American individuals and several hundred thousand funerary objects, despite a 1990 law requiring that they be “expeditiously” returned to tribes.

ProPublica reported on how institutions amassed these remains in the context of violent colonization and created a tool allowing readers to explore the data.

We’d like to hear from you to further our reporting. We’re interested in learning:

  • If institutions have reported incorrect data on human remains or funerary objects subject to NAGPRA.
  • What’s happened behind the scenes at institutions, especially private ones, that has prevented repatriation.
  • How institutions are responding to reporting from ProPublica and other outlets.

We’re also interested in hearing from our Indigenous readers, whether it’s feedback about our project, personal stories about repatriation or ideas for future reporting.

If you have a story to share or question to ask, we invite you to fill out our form.

by Asia Fields, Mary Hudetz, Logan Jaffe and Ash Ngu

Behind ProPublica’s Reporting on Repatriation

2 years 3 months ago

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our other stories about repatriation.

When ProPublica set out to report on Native American remains and cultural items held by U.S. institutions, we knew we would need to listen closely to Indigenous people and gather feedback.

Repatriation can be a sensitive topic. Museums, universities and agencies in the United States hold the remains of more than 100,000 people and several hundred thousand funerary objects, a legacy of looting and the displacement of Native Americans during North America’s violent colonization.

“In life, they were not respected. They were forced to march. Removed,” said Danelle Gutierrez, the tribal historic preservation officer for the Big Pine Paiute Tribe of the Owens Valley. “Even in death, they aren’t respected.”

We heard similar sentiments from many Indigenous people. In May, we published a post inviting people to share what they knew, and sent it to hundreds of tribal leaders and historic preservation officers, as well as museum workers. We also showed tribal representatives an early version of our interactive tool and collected their feedback.

We heard some common questions about our reporting process, so we’ve created this post to answer them. If you have additional feedback, we’d like to hear from you. If you want to learn more about our specific efforts, we’re also happy to answer questions.

Why did ProPublica decide to report on repatriation?

ProPublica journalists Mary Hudetz (Apsaalooke/Crow), Logan Jaffe and Ash Ngu were interested in investigating whether the promises of the Native American Graves Protection and Repatriation Act, considered landmark human rights legislation, had been fulfilled.

Answering this question was consistent with ProPublica’s mission to investigate issues and hold powerful institutions and people accountable, with the goal of creating real-world impact. The journalists, along with others across ProPublica, spent almost two years working to understand the complexities and failures of NAGPRA. They plan to continue this reporting this year.

What are ProPublica’s intentions in reporting on repatriation?

From the outset of our reporting, it was clear that NAGPRA was not meeting its objectives. We wanted to understand why and what had happened in the 30-plus years since its passage. We’ve created an interactive tool that shows each institution’s progress — or lack of progress — on repatriation. The stories in this series and this tool reveal the scope of the failure of museums, universities and others to return human remains and objects.

We hope this tool is helpful to anyone interested in comparing institutions’ progress and to tribes and organizations seeking to facilitate repatriation. It also includes information about which institutions still have control of human remains that may be connected to specific tribes.

Like all of ProPublica’s journalism, the Repatriation Project does not advocate for specific reforms.

Why does ProPublica think its work can lead to change when Indigenous people have worked on repatriation for decades?

Tribal representatives, including some of those who informed our stories, advocated for the creation of NAGPRA and have pressured institutions to adhere to it since. For decades, they’ve testified in front of Congress, protested and worked with limited funding to reclaim their ancestors’ remains and dignity. We hope our reporting will encourage broader awareness of the slow progress of repatriation and those responsible for fixing it.

How did ProPublica incorporate community feedback in The Repatriation Project?

There are diverse viewpoints among and within the nearly 600 federally recognized Native American and Alaska Native tribes and villages, Native Hawaiian organizations and hundreds of tribes without federal recognition.

We received a wide range of feedback, especially after showing our interactive tool to 14 tribal representatives and several repatriation experts and museum officials. Some tribal leaders agreed the information should be published as a way to hold institutions accountable. Others regarded repatriation as a private matter within their communities.

We incorporated what we heard in ways that aligned with our journalistic mission. We also included important context and precise language, such as clarifying the limitations of the data — it’s reported by the institutions themselves — and what it means to “return” human remains.

We welcome additional feedback about the project.

How did ProPublica get access to the data on repatriation? Is this information public?

The data itself is not new, but the way we combined and visualized it is.

The inventory data that ProPublica used is public and is maintained by the National Park Service’s National NAGPRA Program. The program is only able to look up data by institution, rather than by tribe. We supplemented this data with information about tribes to which institutions made human remains available. We did this using notices that institutions publish in the Federal Register to notify tribes of human remains that they are making available for return.

You can read more about the data.

How accurate is the data on repatriation?

The inventory data was obtained from the National NAGPRA Program on Dec. 9. The amount of unrepatriated Native American remains reported by institutions is a minimum estimate of individuals, and institutions frequently adjust these numbers when they reinventory groups of remains. Some institutions that are subject to NAGPRA have also entirely failed to report the remains in their possession. As a result, the numbers provided are best taken as estimates.

If you work for an institution and believe any particular piece of data is incorrect, please email repatriation@propublica.org.

Is ProPublica profiting from The Repatriation Project?

No. ProPublica is a nonprofit organization, meaning that we are primarily supported by donations and grants. We don’t charge people to access our stories, which can be read for free on our website, or even republished at no charge under a Creative Commons license.

What do you plan to do next regarding repatriation?

ProPublica will publish additional stories about repatriation over the coming weeks, as well as a series of newsletters, which you can sign up for here. We plan to continue reporting on the topic.

If you have information about a particular institution or issues with repatriation, we’d like to hear from you. We’re especially interested in hearing Indigenous readers’ reactions to or personal stories about repatriation. We may feature these in future articles, but will make sure we have permission first.

How can I get in touch with ProPublica about repatriation?

You can reach us using this form or by contacting repatriation@propublica.org or 206-419-7338 (calls or Signal messages). If you would prefer to use an encrypted app, see our advice at propublica.org/tips. We won’t publish anything you write without getting your permission first.

We also welcome additional questions and may update this page as we receive more.

by Asia Fields, Mary Hudetz, Logan Jaffe and Ash Ngu