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Are Abortion Bans Across America Causing Deaths? The States That Passed Them Are Doing Little to Find Out.

5 months 2 weeks ago

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In states with abortion bans, ProPublica has found, pregnant women have bled to death, succumbed to fatal infections and wound up in morgues with what medical examiners recorded were “products of conception” still in their bodies.

These are the very kinds of cases state maternal mortality review committees are supposed to delve into, determining why they happened and how to stop them from happening again.

But panels in states that have recently imposed strict bans on abortion have done little to uncover whether the laws are contributing to maternal deaths, including tracking delays in care for pregnancy complications and making these problems known, a ProPublica investigation shows.

In fact, we found that in a few states, political leaders who backed the bans have stood in the way of measuring their consequences.

They have dismissed committees, slowing down their work. They have weeded out members openly critical of abortion bans and supportive of transparency.

Texas has gone as far as to legally prohibit its committee from reviewing deaths that are considered abortion-related. This could include some miscarriage care, health officials told ProPublica.

In two deaths of Texas women that ProPublica investigated, Porsha Ngumezi and Josseli Barnica had already miscarried when they were given misoprostol to help complete the process. The committee does not review cases that involve that drug because it’s also used for abortions, said committee chair Dr. Carla Ortique: “If they received medication, if they received any procedure, we will not get those records.” Chris Van Deusen, the spokesperson at the Texas Department of State Health Services, would not say whether Ngumezi’s and Barnica’s deaths would be reviewed.

First image: Porsha Ngumezi with her husband, Hope. Second image: Josseli Barnica with her infant daughter. (First image: Danielle Villasana for ProPublica. Second image: Courtesy of the Barnica family.)

Other state committees have not made changes to systematically examine the role abortion bans are playing in maternal deaths, officials acknowledged, though some said they might note it as a contributing factor if it appears in the records. “If the committee discovers a trend that raises a particular concern, it could decide to include that information in its reports,” South Carolina officials said.

Some noted that they follow guidelines from the Centers for Disease Control and Prevention, and that those recommendations don’t direct committees to consider abortion access or delays in abortion care. Indiana’s law directs committee members to determine whether the person who died had an abortion and whether that contributed to their death; it does not focus on delays in access to abortion care.

States can direct their committees to look at any important health issue; Texas’ panel added new questions to its process to help capture the role of the coronavirus pandemic in deaths, for example.

ProPublica asked governors in 15 states with strict abortion bans whether committees should examine the impact of the laws on maternal deaths; most did not respond. None directly answered the question or advocated for specific changes. (Read their responses here.)

“We’re not acting like we want to know the answer to this question. And that concerns me,” said Caitlin Myers, an economics researcher at Middlebury College who is studying the impact of abortion access on maternal health. “However you feel about the ethics of abortion, we should want to understand how these policies are affecting women’s health.”

Experts interviewed by ProPublica say state maternal mortality review committees are uniquely well-positioned to examine the impacts of abortion bans on maternal health. The panels are often made up of practicing OB-GYNs, cardiologists and nurses, and they can also include doulas, medical examiners and experts in mental health, substance abuse and domestic violence. They review summaries of medical records to determine whether deaths were preventable and to identify contributing factors. This allows researchers and government officials to see patterns and come up with ways to improve the country’s poor maternal health outcomes.

Committees are not systematically tracking an issue that came up throughout ProPublica’s reporting on deaths in states with abortion bans: delays and denials of procedures, like dilation and curettage, which are used to empty the uterus during miscarriages to avoid hemorrhage and infection. The procedures are also used for abortions, and doctors face prison time for violating restrictions. Women have died after they could not access these procedures, ProPublica found.

Nevaeh Crain, a teenager whose organs were failing, was made to wait 90 minutes for a second ultrasound to confirm fetal demise. Amber Thurman suffered for 20 hours while sepsis spread. And Barnica was subjected to serious infection risks for 40 hours while doctors monitored the fetal heartbeat until it stopped.

First image: Nevaeh Crain. Second image: Amber Thurman with her son. (First image: Danielle Villasana for ProPublica. Second image: Via Facebook.)

Studying such delays “needs to be a part of these kinds of reviews,” said Dr. Daniel Grossman, a leading reproductive health care researcher and professor of obstetrics and gynecology at the University of California San Francisco.

Grossman has collected dozens of accounts from health care providers detailing substandard treatment and poor outcomes in states that banned abortion. But he and others recognize who is ultimately in charge of state maternal mortality review committees.

“I can’t imagine the states that passed restrictions saying, ‘Now we want to know if that caused any deaths,’” said Eugene Declercq, a professor at Boston University’s School of Public Health who serves on Massachusetts’ maternal mortality review committee. “The clinicians and the public health people might want to know, but the political leaders would be aghast.”

Even if they start to pursue such answers, states are years behind in reviewing deaths, ProPublica found in a survey of 18 states with the most restrictive abortion laws. Most have not finished reviewing deaths from 2022, the year most bans became effective after the Supreme Court overturned the constitutional right to abortion. Two states are still reviewing 2021 deaths. Three states — Florida, North Dakota and South Dakota — did not respond.

Most States With Abortion Bans Are Years Behind in Reviewing Maternal Deaths Criminal abortion bans went into effect after the Supreme Court overturned Roe vs. Wade in June 2022. Texas enacted a civil law banning abortion at six weeks in 2021. This data was gathered by contacting each state agency that oversees the maternal mortality review committees in the states we surveyed. It is current as of November 2024. Some states did not submit a response to our outreach last month, so we are including their most recent response. Idaho is reviewing 2023 cases before it reviews 2022 cases. Texas began reviewing 2024 cases in December, skipping 2022 and 2023.

Reviews typically lag years behind deaths because of the time it takes state health department employees to learn of cases, track down records and wrestle them free from hospitals and doctors before they summarize and redact them for review. “We have one person in the entire state that has to collect all that data. Literally one,” said Dr. Stacie Geller, a founding member of Illinois’ committee. “I live in fear of her retiring.”

The CDC, which has pumped tens of millions of dollars into helping states establish these committees and standardizing their work, has tried to reduce the backlog by setting a goal for committees that receive funding to review cases within two years. However, there’s no way to compel states to do so, and not all have caught up.

Such lags matter more in places where there has been a seismic shift in abortion access, experts told ProPublica, because there isn’t a full understanding yet of the laws’ effect on maternal health care.

Marian Knight leads the United Kingdom’s maternal mortality review program, widely seen as the world’s best. She said if there were a major legal shift like this in her country, she and her colleagues would adapt to track the impact in close to real time. “I would be monitoring that in the same way as I did during COVID, where we were analyzing data weekly and feeding it in,” Knight said.

As of last month, only five states — Iowa, West Virginia, Indiana, Georgia and Tennessee — had finished reviewing cases from 2022, ProPublica found. None had yet published a report on its findings for that year.

Seven other states were still examining 2022 cases: Alabama, Oklahoma, South Carolina, Mississippi, Missouri, Arkansas and Louisiana.

Idaho, Texas and Kentucky had not yet started looking at cases from that year.

Even though North Dakota did not respond to ProPublica’s survey, reporters found that its committee, formed by state legislation in 2021, has never met to review cases, according to two members.

In some instances, state officials are responsible for delays.

Idaho disbanded its committee in summer 2023 after a conservative group argued it was unnecessary and attacked members for recommending that the state expand Medicaid for postpartum patients. The move froze the group’s work until last month, when a reconstituted, smaller committee met for the first time. Two members who had spoken out against the ban’s impacts on maternal health, and are suing the state over it, were not brought back onto the committee. The state is defending its anti-abortion laws; the Idaho Attorney General has said he “will not stop protecting life in Idaho.”

It is unclear how long Georgia’s reviews will be stalled after state officials dismissed its committee last month, citing a violation of confidentiality rules after ProPublica reported on internal documents in stories about two preventable deaths examined by the group. The Georgia Department of Public Health said in a letter about the dismissal that this would not result in any delays to the committee’s responsibilities.

In a move that confused maternal research experts, Texas’ committee said it would not review data from 2022 and 2023 and begin with reports from 2024 to get a more “contemporary” view of deaths. The committee has skipped years in the past to address gaps, and at its recent meeting, Ortique, the chair, said that the decision had “absolutely no nefarious intent.” The period it plans to skip includes two of the preventable deaths ProPublica reported.

Dr. Romy Ghosh, an OB-GYN in Austin, Texas, pleaded with the maternal mortality review committee at a public meeting this month to reconsider its decision to skip those years.

“There’s been a lot of fear in my patients. They wonder, can I save their life if something goes wrong?” she said. “I think that this information will tell us there’s either nothing to worry about or it will be damning.”

Dr. Romy Ghosh addresses Texas’ maternal mortality review committee at a public meeting in Austin this month. (Ilana Panich-Linsman, special to ProPublica)

Between the decision to skip years and the legal prohibition against examining cases involving abortion-related care, it appears Texas will not review any of the three preventable deaths ProPublica identified.

There is a limit to how much committee members can push back against state leaders.

When Texas delayed publishing its maternal mortality report in 2022, an election year, then-committee member Nakeenya Wilson, a community advocate, spoke out, saying “withholding data that does not make us look good is dishonorably burying those women.”

The next session, Texas lawmakers passed a bill changing the requirements for the position that Wilson held, effectively removing her from the committee. State officials appointed Dr. Ingrid Skop, a Texas OB-GYN who is the vice president of a prominent anti-abortion organization.

Wilson said maternal mortality review committees must be free to speak candidly about patterns they see in maternal deaths and to release information in a timely fashion.

“If it’s not the committee, then who is it?” she said. “There has to be increased accountability.”

First image: Crain’s mother, Candace Fails, cries at her daughter’s grave. Second image: Ngumezi’s husband, Hope, touches his wife’s grave in Pearland, Texas. (Danielle Villasana for ProPublica) Thurman’s grave in McDonough, Georgia, on the day after what would have been her 31st birthday. (Nydia Blas for ProPublica)

Audrey Dutton, Anna Maria Barry-Jester, Lizzie Presser and Amy Yurkanin contributed reporting.

by Kavitha Surana, Mariam Elba, Cassandra Jaramillo, Robin Fields and Ziva Branstetter

Endo’s End Around: How One of the Nation’s Largest Opioid Makers Escaped a $7 Billion Federal Penalty

5 months 3 weeks ago

This article was produced in partnership with The Philadelphia Inquirer, which was a member of ProPublica’s Local Reporting Network in 2020-21. Sign up for Dispatches to get stories like this one as soon as they are published.

This spring, the Justice Department announced a major victory against a drug firm that manufactured billions of opioid painkillers. Endo Health Solutions, the agency said, would face $1.5 billion in fines and forfeitures and plead guilty to a corporate criminal charge.

Prosecutors said the massive fine would hold accountable a suburban Philadelphia company that profited by “misrepresenting the safety of their opioid products and using reckless marketing tactics to increase sales.”

But in the end, federal prosecutors offered far friendlier terms than those trumpeted by the agency.

Endo would not have to pay the $1.5 billion in criminal penalties, which was already a deep discount from the billions federal officials said Endo owed for dodging taxes and driving up Medicare costs.

In what amounted to a liability fire sale by the Justice Department, the company’s woes with the federal government would all be resolved by a $200 million payment.

In sentencing Endo in federal court in May, Judge Linda Parker wondered how the amount paid to the U.S. could be so low.

“I don’t understand. I really don’t understand,” Parker said. “I just don’t understand how it went from $1 billion to $200 million.”

Federal prosecutor Benjamin Cornfeld explained: Endo was broke. 

“The reality is that there are limited funds available because the debtors were in bankruptcy,” Cornfeld said.  

But a fuller explanation, drawn from corporate filings, interviews, and criminal court and bankruptcy records, shows how the DOJ, after years of aggressively prosecuting opioid companies, delayed for a decade a winning criminal case against Endo. In the intervening years, Endo vastly expanded its narcotic-pill empire before executing a corporate escape plan.

Codenamed Project Zed, the plan allowed Endo to restructure its debt to retain control of the company and hand out $95 million in executive bonuses before seeking protection in bankruptcy. The result for U.S. taxpayers: Endo paid a tiny fraction — three pennies on the dollar — of the $7 billion that officials said it owed the U.S. government, including $4 billion in taxes.

Endo is not a household name. But by 2018, a year when 15,000 Americans overdosed and died on prescription painkillers, Endo and the firms it purchased had sold 33 billion opioid pills over two decades, almost three times the number sold by Purdue Pharma, the Sackler family’s OxyContin powerhouse.

Though federal prosecutors first learned about Endo’s criminal behavior in a 2013 whistleblower suit, they dropped their investigation, even as they doggedly pursued Purdue. By the time DOJ prosecutors revived the allegations against Endo early this year, the company was bankrupt.

Hundreds of lawyers, paralegals and financial advisers litigated Endo’s bankruptcy, billing more than $350 million. Some lawyers charged more than $2,000 an hour. Paul Leake, Endo’s lead attorney, said in a court filing that the bankruptcy plan “extinguished” Endo’s liabilities for “a fraction of the debtors’ total criminal and civil exposure.”

Individual opioid victims didn’t fare as well. They got just $40 million from Endo — a sum that works out to about $1,000 per victim. In comparison, people hurt by bankrupt Purdue, the poster firm for the U.S. painkiller trauma, were to share up to $750 million. Purdue victims are to receive sums ranging from $3,500 to $48,000.

Margo Siminovitch, an attorney representing opioid victims, was the fiercest critic of the plan. At the bankruptcy’s last major hearing, she told the judge that lawyers in the case earned hourly rates that “exceed what an opioid victim who’s had their life devastated is going to get.”

Endo “came with a strategy purposely intended to reduce payments to opioid victims,” Siminovitch said in an interview. “All of the [Endo] opioid victims were burned by this process, in that they were going to get virtually nothing.”

The Federal Government Sought $7 Billion. It Got a $200 Million Payment.

When Endo filed for bankruptcy, federal agencies brought claims against the drug firm seeking $7 billion in back taxes, Medicare overpayments, and criminal and civil penalties. But the Justice Department’s slow-moving prosecution and Endo’s financial maneuvers left little cash in the coffers. In the end, Endo paid the U.S. government just $200 million.

(Sources: Court and bankruptcy records; corporate filings (John Duchneskie/Philadelphia Inquirer, adapted by ProPublica)) Profiting From Pain Management

Spun out of DuPont Merck in 1997, Endo — the name is Greek for “inside” — set out to make money “in the changing landscape of pain management,” and for 20 years it did just that.

The company started with Percocet: It upped the per-pill opioid dosage and whipped up sales through promotions and a contest among salespeople where BMW corporate cars were the prize. Revenue soared.

Endo’s next big bet was Opana ER, an extended-release painkiller that won the Food and Drug Administration’s approval in 2006. Opana ER became its flagship opioid, Endo’s answer to Purdue’s OxyContin. Endo launched the brand with a $48 million marketing campaign and began, in a phrase Endo used internally, “hyper-targeting” heavy opioid prescribers.

To ease deep-seated concerns over opioid addiction, Endo also linked up with other pharma companies to try to reshape the public image of prescription narcotics. The firm poured millions into advocacy front groups, notably the American Pain Foundation, which contended doctors feared opioids “because they mistakenly think their patients will become addicted.” The foundation shut down the day a Senate committee announced it was probing the industry groups.

Larry Romaine, Endo’s senior vice president for sales, told subordinates in a 2012 voicemail that salespeople had to be “laser focused” on selling Opana ER. “If we have reps out there, I don’t care who they are, that can’t sell Opana ER clinically, they can’t be with Endo. OK?” he said.

His voicemail and other material from inside Endo, including emails, became public court records in lawsuits filed against the company.

Endo declined to comment for this story and would not respond to detailed questions sent to the firm. Former Endo employees, including those whose communications were entered into court records and are cited in this story, did not return emails and phone calls seeking comment.

In an email sent in 2009, Endo sales manager Bret Anderson wrote to his team, referencing requirements to identify and cut off doctors who prescribed suspiciously high volumes of opioid drugs, with a warning that if too many doctors were flagged it could hurt business. “I also consider the rule: ‘if you are not aware of any major issues, it is probably not a problem.’”

In a 2009 email, Endo manager Bret Anderson told staffers that reporting too many doctors who were prescribing suspiciously high volumes of opioids could harm business, saying, “it may risk that territory being a viable territory.” (Documents obtained by ProPublica and The Philadelphia Inquirer. Highlighting added by The Philadelphia Inquirer.)

At Endo’s headquarters, Linda Kitlinski oversaw Endo’s education programs for doctors for 16 years. In 2009 she sent an email to her husband documenting her concerns that “Endo’s senior leadership” was pressuring her to improperly use her program as a sales tool. Soon after she raised these issues internally, her boss called her into his office and warned her that she had nearly been fired because she was “an impediment to the business.” She needed to stop “playing policeman.”

When Endo salespeople alerted bosses to dangerous doctors, lawsuit testimony revealed that the company, unlike other manufacturers, never reported those suspicions to the Drug Enforcement Administration. Those reports were required by law.

In Alabama, Endo sales reps made 1,200 visits to a Mobile clinic where two doctors wrote “thousands of Opana ER prescriptions after Endo knew the clinic to be engaged in abuse,” the government said this year in its criminal case against Endo. Prosecutors said the clinic had a crowded waiting room with intoxicated customers, armed guards and medical staff “abusing controlled substances on-site.”

In Knoxville, Tennessee, where Endo sold more Opana ER pills than in New York City, Los Angeles and Chicago combined, a sales rep reported to supervisors that one doctor had “patients waiting in the parking lot in lounge chairs,” and “it is just a matter of time before the DEA closes him down.”

In Pittsburgh, more than 100 pharmacies refused to fill prescriptions for a reckless doctor, yet Endo continued to supply him. He was the nation’s largest Opana ER prescriber, according to an Endo email.

Doctors in those clinics were eventually sentenced to prison.

Separately, records show that of Endo’s 20 biggest Opana ER prescribers in the Medicare program in 2016, four clinic operators would later be convicted of running multimillion-dollar pill mills. A fifth would lose her medical license for dangerous prescribing.

Linda Kitlinski, who oversaw Endo’s education program for doctors, sent an email to her husband in 2009 contending that senior management was pressuring her to use her program as a sales tool. The email was made public as evidence in New York state’s lawsuit against Endo. The drug company settled the suit in 2021 for $50 million. (Documents obtained by ProPublica and The Philadelphia Inquirer. Highlighting and redactions added by The Philadelphia Inquirer.)

As it became clear that opioids were causing a health crisis, Endo came up with a response. It engineered a new, purportedly safer pill with a hard outer shell to make it more difficult to extract the active opioid, branding it as Opana ER “with Intac Technology.”

But there was a big problem: The FDA found the retooled drug to be no safer than the old version. For three years, the agency warned Endo that the pill could be “readily prepared for injection” — an even riskier high than snorting because of the danger of sharing needles.

I just don’t understand how it went from $1 billion to $200 million.

—Federal Judge Linda Parker, on reviewing the final deal with Endo

Within Endo, Bob Barto, the vice president for regulatory affairs, warned in a 2010 email against using the Intac slogan “because we don’t have any data to demonstrate that the technology conveys any benefit to the patient.”

Endo leaders didn’t drop the marketing approach. In the new drug’s slogan, the company said the pills were “designed to be crush resistant,” stopping short of saying they actually were crush resistant.

In early 2012, William Best, an Endo executive who dealt with regulators, emailed internally to say he was comfortable with promoting Opana as designed to be safe. While acknowledging that the language might provoke FDA disapproval, Best wrote, “it is likely to be a warning letter.”

As the company began selling its new formulation, the firm declared in marketing material: “At Endo, we are doing our part to limit abuse.”

Warning Signs for Endo

In 2013, a whistleblower emerged from the Endo salesforce. Her name was Loretta Reed.

A veteran in the pharma industry, Reed had worked for Endo for seven years when she filed a lawsuit in Philadelphia federal court alleging that top executives were intent on selling the updated version of Opana ER as safer, despite the FDA’s rejection of that claim. The 50-year-old’s job was to market Endo’s pain drugs to doctors in the Atlantic City, New Jersey, area.

Endo leaders distributed marketing gimmicks, notably kits with samples of Opana ER’s new hard covering, Reed disclosed. Salespeople deployed the kits, she said in the suit, to demonstrate the toughness of the pills, pounding samples with hammers and microwaving them — the kinds of misleading tactics cited later as part of Endo’s guilty plea.

But while hammering and microwaving demonstrated the new pill’s exterior strength, it left doctors uninformed about the other ways the narcotic active ingredient, oxymorphone, could be extracted by abusers, including by cutting, chewing, grinding and heating the pills for injection.

Endo’s marketing was “purposely designed to fraudulently manipulate prescribing physicians,” Reed’s suit charged. She said the company’s management misled the sales force about the FDA’s concerns.

Indeed, Endo’s own research, provided to the FDA in 2016, showed that many users switched to shooting up when abusing the product.

You had to cook them. … It pretty much forced me to have to inject really.

—A drug user on the hard cover added to Opana ER pills

In 2017, a senior medical adviser with the Centers for Disease Control and Prevention investigated the role Opana ER had played in an HIV outbreak in Indiana after doctors diagnosed 135 people with the disease, all of them tightly concentrated in a rural county. Narcotics users had extracted the oxymorphone from Opana ER and shot it up, with many sharing needles.

In his report, the CDC investigator quoted a drug user as saying that once Opana ER added its hard cover, “You had to cook them. … It pretty much forced me to have to inject really.”

Said another: “I couldn’t find any [original] Opanas or other pain medicine to snort. It became almost non-existent. So I was turned on to shooting up. So that’s pretty much how that went down.”

Reed’s allegations of mislabeling were strikingly similar to those made by an Endo salesperson eight years earlier. In a 2005 federal lawsuit, sales rep Peggy Ryan had reported that top executives had relentlessly pushed the sales force to sell the nonopioid shingles drug Lidoderm off-label for everything from sore backs to carpal tunnel. Ryan declined to comment for this story.

Federal prosecutors had embraced Ryan’s suit, using her to gather evidence. Ryan wore a wire for the FBI for two years. The criminal investigation advanced slowly, but in early 2014, Endo admitted it had illegally misbranded Lidoderm. It paid a $192 million fine and signed a “corporate integrity agreement” promising to improve its ethics. The deal permitted it to keep doing business with Medicare, despite a law mandating that criminal pharma firms be cut off.

As for new whistleblower Reed’s allegations involving Endo’s leading narcotic painkiller — a far more dangerous drug than Lidoderm — the Justice Department took them seriously at first. Federal officials put together a task force of prosecutors and FDA investigators.

By the fall of 2014, eight months after charging Endo over Lidoderm, prosecutors had decided to end their probe regarding Opana ER, Philadelphia court documents show. That led Reed to withdraw the case in 2015. Prosecutors would not discuss their reasons for dropping the Opana ER investigation.

The Justice Department did not answer questions in detail for this article, but in a statement it praised the deal it finally reached with Endo this year that “secured a victory for American taxpayers and other stakeholders.”

Reed’s lawsuit aside, Endo still saw promise in opioids. New chief executive Rajiv De Silva, who took charge in 2013, executed an ambitious acquisition strategy, taking on debt to buy Par Pharmaceuticals, a maker of generic opioids that was churning out billions of pills a year, for $8 billion.

The timing was terrible. After Endo’s expensive wager on Par, the national conversation over opioids darkened. Tens of thousands had overdosed and social costs exploded. Cities and counties across the nation, linking up with aggressive personal-injury law firms, sued opioid players at every rung of the business, from pillmakers to distributors to pharmacies to doctors. More than 40 state attorneys general joined together to demand compensation from opioid firms.

In 2017, the FDA held two days of emotional public hearings on Opana ER that laid bare its dangers.

Not long after, the agency asked Endo to take Opana ER with Intac Technology off the market, a first in modern times for an approved opioid. If Endo didn’t remove the drug, the FDA said it would. Endo complied. By then, Endo had made $543 million in profits over six years selling the painkiller.

In 2018, federal prosecutors subpoenaed opioid-related records from Endo. After the FBI contacted Reed, now living in Florida, about the allegations made in her withdrawn Philadelphia case, her lawyer, Eric Young, refiled the whistleblower suit in Florida. But it would be another five years before federal prosecutors would bring criminal charges against Endo.

Launching Project Zed

As the feds delayed, Endo acted.

Facing a growing wave of lawsuits, Endo spent heavily on legal fees — ultimately paying $345 million. Its fierce legal strategy generated its own controversy as Endo’s leading defense firm, Arnold & Porter, faced repeated allegations that it wasn’t fighting fair.

One New York state prosecutor in a civil trial accused the law firm of “concealing vast troves of smoking-gun evidence proving Endo’s grave misconduct.”

In California, a judge barred testimony from former Endo senior director Kitlinski after Arnold & Porter and other defense law firms did not turn over her 2009 memo.

In Tennessee, the legal hardball became a debacle for both Endo and Arnold & Porter. A judge there held them in contempt and found that they had engaged in “a coordinated strategy” to deprive opponents of information. The judge demanded that Arnold & Porter apologize to the court and that its attorneys take an ethics refresher class.

Arnold & Porter declined to comment, but referred reporters to previous statements. The firm said at the time it had acted in good faith and regretted that any document had been produced late. It said its lawyers had worked hard to locate and turn over all relevant documents and had even offered to pay for additional depositions to go over issues raised in any belatedly revealed material.

In 2020, a Tennessee judge held Endo’s lead defense firm, Arnold & Porter, in contempt for failing to disclose potentially damaging information. The firm’s chair apologized to the court, and more than 100 Arnold & Porter attorneys involved in Endo cases nationwide took an ethics class to satisfy the judge’s order. (Documents obtained by ProPublica and The Philadelphia Inquirer.)

Endo turned to another big law firm, Skadden Arps in New York, to deal with a declining business and potential bankruptcy. From Endo’s perspective, the lawyering here proved more successful. Skadden Arps helped develop a plan that Endo confidentially codenamed Project Zed.

When companies declare bankruptcy, all the businesses and people who are owed money file proofs of claims to be paid. These creditors are divided into groups, and those with the strongest legal claims are placed in higher tiers for payment — and thus are more likely to recover funds.

Distressed companies have gotten aggressive with rearranging debt so that some creditors may leapfrog others through a process called “uptiering.”

Endo completed sweeping uptiering transactions in 2019 and 2020, putting liens on assets and replacing unsecured debt with secured debt. Endo said its uptiering under Project Zed gave the firm time to seek settlements for opioid lawsuits by extending debt deadlines.

But the uptiering also shrank the funds available to deal with Endo’s opioid liability. State attorneys general initially sought $3.3 billion from Endo for its role in the epidemic, according to bankruptcy court records. They lost bargaining power, though, as the business declined and Endo uptiered debt. Before Endo filed for bankruptcy, the state prosecutors settled for $274 million.

In total — including pre-bankruptcy lawsuit settlements with a few individual states and payments to private organizations and victims — Endo paid about $635 million for the ravages of the opioid crisis.

In their deal, the Sacklers and Purdue agreed to pay $6 billion in compensation, with most of the money going to state and local governments. Teva and Allergan, pharmaceutical companies that merged their generic opioid businesses, are to pay $6.5 billion.

Mallinckrodt, the nation’s biggest opioid pill maker, agreed to pay $1.7 billion in opioids damages in 2022 in its first bankruptcy. It filed a second bankruptcy last year and cut its payment to $700 million.

In the Endo bankruptcy, lawyers for opioid victims and other unsecured creditors labeled Project Zed a scheme to wall off assets, alleging it amounted to fraud. Endo denied the fraud allegations.

“It’s all the more unfortunate,” attorneys for opioid victims and unsecured creditors said in court filings, “that the victims of Endo’s conduct in this should also be the victims of the opioid crisis from which Endo profited handsomely.”

In interviews, legal experts called uptiering a dangerous trend. Opioid victims are “kind of like sitting ducks,” Berkeley Law professor Kenneth Ayotte said. Opioid victims, he said, “don’t have contracts to protect themselves against these transactions.”

As it failed to pull out of a financial tailspin, Endo accelerated bonuses to about two dozen executives. Records show a total of $95 million was paid in less than a year.

Four days after the last bonus round of $22 million was paid to chief executive Blaise Coleman and his three top lieutenants, Endo filed its bankruptcy petition in federal court in New York. The total Endo paid its top bosses dwarfed the controversial $7 million in pre-bankruptcy bonuses granted to a handful of Purdue executives.

The bonuses immediately came under fire from a federal bankruptcy watchdog, opioid victims and many creditors. The critics told U.S. Bankruptcy Court Judge James Garrity Jr. that the payouts violated a law, championed by then-Sen. Ted Kennedy, D.-Mass., nearly 20 years ago after scandals involving windfalls paid to executives of bankrupt firms, most notably Enron.

In interviews, professors who specialize in bankruptcy said that the bonuses appeared to be an end run around Kennedy’s reforms. “It looks like pre-petition theft,” said Gregory Germain, a widely published bankruptcy expert at the University of Syracuse.

They marketed these drugs inappropriately and wrongly and flooded the streets. They did nothing about it because money was number one.

—Emily Walden, whose son died from an overdose

Skadden lawyer Lisa Laukitis defended the bonuses in a bankruptcy hearing. “These are not windfall payments that were made to line the pockets of executives on the eve of the filing,” she said.

The bankruptcy went on for months. Hedge funds and other investors — led by GoldenTree Asset Management, a New York firm that specializes in buying distressed debt — agreed to use their secured debt to buy Endo out of bankruptcy. In negotiations to take ownership, the group sweetened the deal by increasing the payments going to individual opioid victims and other unsecured creditors. As part of the deal, the critics dropped their complaints about Project Zed and the bonuses.

Garrity, the judge in New York, confirmed Endo’s bankruptcy plan in March. Federal prosecutors, engaged in a parallel criminal investigation of Endo, had reached their own deal. All that remained was for Parker, the judge in the criminal court in Michigan, to approve the intertwined deals.

Winners and Losers

On the afternoon of May 2 in Detroit, federal prosecutors and Endo’s defense lawyer explained to Parker how the financial penalty facing Endo had dwindled to $200 million.

Along with the criminal fine, a final “global resolution” signed by U.S. officials and Endo wiped out virtually all of the potential $4 billion IRS bill. The agreement also mostly erased claims of another $1.5 billion for false health care billing and Medicare costs generated by the opioid crisis.

Endo’s attorney, Carole Rendon, a former U.S. attorney from Cleveland, blamed the misconduct at the firm on a “very small number” of rogue salespeople.

She told the judge the company had cleaned up its act, including firing its 375-member opioid sales staff back in 2016. The firm at one point had called them “pain solution brand ambassadors.”

A near-defunct Endo subsidiary pleaded guilty to a misdemeanor, allowing the parent company to again sidestep a law barring convicted firms from doing business with federal health care programs. No Endo executives or employees were criminally charged in the case. Endo is still selling Percocet and other opioids that bring in 7% of its revenue.

With the bankruptcy case closed, law firms and financial advisers won big. Skadden Arps billed for the labor of nearly 350 lawyers and paralegals. Its total fees: $114 million.

Two law firms, Akin Gump and Cooley LLP, represented painkiller victims. In total, the lawyers and other advisers for victims are set to receive $48 million — more than the $40 million Endo’s individual opioid victims are to share in a court-approved trust.

Reed, the Endo opioids whistleblower, received a reward of about $1.9 million.

Stockholders got wiped out. More than 3,000 victims’ lawsuits were ended.

And Endo continues to reward its veteran and new top executives, setting aside more than $80 million in a stock pool for them, board members and other “key employees.” It gave former CEO Coleman a $6.1 million parachute when he resigned in August.

Individual victims still need to be compensated. If the number of individual victims holds steady, arithmetic shows they might each receive about $1,000 after administrative costs from the court-approved trust. Under the $750 million Purdue plan, the largest checks, for $48,000, were to go to family members who lost someone to a fatal overdose.

The Rappold family has filed for compensation. They lost Nicholas Rappold, 21, a kosher deli waiter and community college student. He was found slumped in his car in 2010, dead from an overdose. Rappold received various prescriptions, including for Percocet, from Dr. Stan Li in the weeks leading up to his death, according to court records from Li’s criminal trial. Li banked thousands in cash from selling painkillers at his New York City clinic to customers who lined up around the block.

Nicholas’ mother, Margaret, faulted the way Endo and other firms marketed to Li. The doctor died in prison while serving a 10-year sentence for manslaughter in the fatal overdoses of her son and a 37-year-old former stockbroker.

“Just to get sales, they don’t care what they sell,” said Margaret Rappold, 75, who works at a school cafeteria. “Whether it’s good for you or not good for you.”

While she says money would never make up for the loss of her boy, it could defray her expenses, including her son’s $14,000 funeral.

So far, the Rappolds and other families have found collecting difficult. They have had to deal with paperwork filled with legalese and footnotes, a short deadline for seeking money, an application website that didn’t work — and, most significantly, rules that barred thousands of victims from getting help.

First image: Emily Walden. Second image: T.J. Walden. (Bryan Woolston for The Philadelphia Inquirer)

Emily Walden, a Kentucky woman whose son, T.J. Walden, died at age 21 on a camping trip after taking Opana given him by a friend, followed the Endo saga closely until she realized that the trust will only help if victims had a doctor’s prescription for an Endo narcotic.

“These prescriptions were not falling off trucks,” Walden said. “They marketed these drugs inappropriately and wrongly and flooded the streets. They did nothing about it because money was number one.”

Some 90,000 individual victims initially filed opioid claims against Endo. Already, two-thirds of them have dropped out.

You can reach reporter Bob Fernandez at bobyardleyfernandez@gmail.com. You can reach reporter Craig R. McCoy at craigmccoy7@comcast.net.

by Bob Fernandez and Craig R. McCoy for The Philadelphia Inquirer

A Strange Alliance: Oxygen Companies and Their Medicare Patients Want Congress to Pay the Companies More

5 months 3 weeks ago

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For years, the home-oxygen industry has failed in myriad ways the million-plus Americans who struggle to breathe. Lincare, the country’s largest distributor of breathing equipment, has a decadeslong history of bilking Medicare and the elderly, as ProPublica has revealed. Philips Respironics hid serious problems with its sleep apnea machines, with devastating consequences, including reported deaths. Other large respiratory companies have paid multimillion-dollar fraud settlements.

But as the current session of Congress hurtles to a close, advocates for oxygen patients — in a seemingly improbable alliance with the companies that have victimized them — are making a final push for legislation that, among other things, would pay the scandal-scarred industry hundreds of millions of dollars more than it currently receives. The patients, many aged and infirm, have been besieging lawmakers with meetings, calls and emails, pressing them to pass the Supplemental Oxygen Access Reform, or SOAR, Act by the end of the year. The corporate and patient advocates vow that if the legislation fails in the current term, as seems possible, they will push to reintroduce it next year.

The SOAR Act would achieve two long-sought goals for the industry, which receives much of its revenues from Medicare. The bill would protect companies from additional reductions in their billings by removing oxygen from Medicare’s competitive bidding program, which has saved taxpayers hundreds of millions of dollars. And it would make it far more difficult for the government to challenge those billings.

The patient groups, in turn, have their own goals: improving the industry’s notoriously poor service and assuring access to costly liquid oxygen for a relatively small group of the sickest patients. That form of oxygen is coveted by patients with advanced lung disease because it provides the high flows they need in easy-to-carry cylinders that last for hours. Emotional accounts of stricken patients, unable to obtain the equipment they need, have been prominent in the lobbying campaign to pass the measure.

“The current situation is pretty horrific,” said Susan Jacobs, pulmonary research nurse manager at Stanford University Medical Center, who has spent more than a decade studying access to oxygen therapy and supports the legislation. “Patients aren’t getting the oxygen devices they need or being educated or trained on use of that device. The SOAR Act addresses multiple issues.”

Jacobs and other advocates acknowledge the history of bad behavior by oxygen companies. “I used to feel like they are the enemy,” Jacobs said. Added Erika Sward, assistant vice president of national advocacy for the American Lung Association, another supporter of the SOAR Act: “Some of the companies were very much acting in bad faith when it came to taxpayer dollars.”

But the patient advocates are now backing the industry’s long-standing complaints that Medicare’s payment cuts have gone too far. “I have become convinced of this over the past five years or so,” Sward said. “They’re not being paid enough under competitive bidding. … I fully believe the suppliers are negotiating from a very good-faith perspective for patients.” She added: “Unless everyone is willing to compromise, nothing is going to change. Obviously they have a financial interest.” (Sward said the American Lung Association receives no funding from oxygen companies or trade groups.)

The SOAR Act, which now has a half dozen sponsors in the Senate and 31 in the House, was first introduced in late February by Louisiana Republican Sen. Bill Cassidy, a physician, and Democratic senators Mark Warner of Virginia and Amy Klobuchar of Minnesota. “Respiratory care is lifesaving for so many patients, but too often access to this care is cost-prohibitive or simply not accessible,” said Warner, in a joint press release issued at the time. Cassidy, Warner and Klobuchar did not respond to requests for comment.

Beyond protecting against further Medicare rate cuts for items such as an oxygen concentrator (the bill would essentially freeze them at current levels), the SOAR Act would create a standardized medical form for authorizing suppliers’ claims; pay companies like Lincare to provide respiratory therapist services; and more than double what the companies are paid for liquid oxygen systems.

The bill is projected to cost taxpayers about $654 million over 10 years, according to a private study partly funded by industry (which the SOAR Act’s supporters have declined to share). The nonpartisan Congressional Budget Office has not yet prepared an estimate. Beneficiaries would also have to pay the companies more as part of their 20% Medicare copay.

Liquid oxygen has long been virtually unavailable even to Medicare beneficiaries who need it most. In 2004, before cuts in the government’s historically lavish payments for oxygen began kicking in, suppliers provided portable liquid oxygen equipment to more than 80,000 Americans.

Fewer than 4,000 Medicare patients received liquid oxygen in 2021, according to Medicare data. That’s a tiny portion of the 1.5 million Americans who now receive some form of supplemental oxygen. The bill’s advocates say there are thousands of Medicare beneficiaries who desperately need liquid oxygen to live more normal lives. “We’re ordering liquid,” Jacobs said. “Our [suppliers] are saying, ‘We don’t have it, and we can’t provide it.’ That’s not acceptable. Patients should be able to have enough oxygen to get out of their house. They’re unable to go to religious services, unable to see family, can’t go to a child’s graduation. These are heart-wrenching stories.”

Under the competitive bidding program that was launched in 2011, oxygen companies were legally required to provide liquid systems to any patient whose doctor prescribed them. But the companies insisted it was too expensive to do it at the rates the companies had agreed to in the bidding process. Providing liquid oxygen, which is stored at freezing temperatures under high pressure in special equipment, requires special trucks, frequent deliveries and hazmat-certified drivers.

Medicare enforcers never cracked down on the companies. Then, in 2019, the federal government “paused” the oxygen bidding program and many of its reimbursement rules — five years later, it can’t say when it may replace or reactivate them — freeing companies from any obligation to provide liquid oxygen.

In a statement, a Medicare spokesperson repeated the program’s long-standing contention, disputed by industry and patient groups alike, that access to liquid oxygen has not been a significant problem: “Although there were some complaints about contract suppliers refusing to furnish liquid oxygen, the suppliers came into compliance and agreed to furnish the liquid oxygen, so no [supplier] contracts were terminated as a result.”

The SOAR Act also includes what advocates call a “patient bill of rights” — and which they view as a major concession by the oxygen companies. Aimed at addressing the dismal service that has predominated, it and other parts of the bill would require suppliers to provide equipment setup assistance and monitoring, patient education and 24/7 coverage for emergencies as a condition for Medicare payment. (Left unresolved is how the federal government, whose enforcement record has historically been less than stellar, would police such rules.)

Lincare has long blamed problems on Medicare’s cuts and what it characterizes as the “flawed” competitive bidding program. The company told the agency in a 2017 letter that low reimbursements and “burdensome documentation requirements” had made it “next to impossible to continue providing quality services to beneficiaries.” Yet Lincare appears to collect substantial profits. It generated about $300 million in profit in 2023, on revenues of $2.4 billion, according to a former company executive. (Lincare declined to comment.) Rotech, another large company in the home respiratory business, was purchased this year for $1.36 billion, after recording $200 million in earnings for fiscal 2023.

Such profits make it possible for the industry to spend lavishly on Capitol Hill. Its lead trade group is the Council for Quality Respiratory Care, made up of six big manufacturers or distributors of oxygen equipment, including Lincare and Philips, and chaired by Lincare’s CEO. Since 2018, each of the six CQRC companies has reached at least one multimillion-dollar settlement with the government alleging it cheated Medicare. The corporations have typically denied wrongdoing.

Lobbying payments by the trade group and its member companies on reimbursement issues have totaled more than $1.4 million since the start of 2023. CQRC’s outside PR firm won an industry “advocacy” award for its 2016 campaign in support of legislation slowing oxygen reimbursement cuts, where it boasted of generating 29,000 emails to members of Congress. Through such efforts, the award commendation read, “an engaged community of concerned citizens was created to help support CQRC’s efforts.”

In a statement responding to ProPublica’s questions, CQRC praised the SOAR Act for providing “long-overdue Medicare reforms” and correcting service woes that patients and their advocates have often blamed on the industry. The trade group blamed “current law” and “chronic underfunding” for leaving patients “often unable to access the medically necessary home respiratory treatments their doctors prescribe,” but it said the bill would establish “clear patient protections and supplier responsibilities” while protecting Medicare beneficiaries from “potential fraud and abuse.”

Meanwhile, a new government-funded academic study is challenging the industry’s claims about the purported harms of competitive bidding for oxygen services. Published in late October in JAMA Internal Medicine, the investigation examined Medicare data to weigh the bidding program’s impact on patients with chronic obstructive pulmonary disease, by far the largest group of Medicare oxygen patients.

Its conclusion: Competitive bidding saved taxpayers and patients hundreds of millions of dollars, without curbing their access to oxygen or hurting their health. Dr. Kevin Duan, an assistant professor of respiratory medicine at the University of British Columbia and the article’s lead author, told ProPublica his team’s review found no evidence of harm: “No drop in claims, no change in clinical outcomes.” Duan said the study has sparked a backlash from the measure’s advocates. “I knew this was directly questioning a part of the SOAR Act,” he told ProPublica. “I feel like I walked into a firestorm.”

“We don’t have a horse in this race,” Duan said. “There’s a lot of blaming the competitive bidding program without much data. Rarely do we have high-quality evidence that can directly inform a piece of legislation. It shouldn’t be ignored.”

Doris Burke contributed research.

by Peter Elkind

As the Olympics Approach, Los Angeles Considers Crackdown on Illegal Vacation Rentals

5 months 3 weeks ago

This article was produced in partnership with Capital & Main, which was a member of ProPublica’s Local Reporting Network in 2022-23. Sign up for Dispatches to get stories like this one as soon as they are published.

As Los Angeles prepares to host tens of thousands of visitors for the 2028 Summer Olympics, city officials are moving to stop property owners from illegally listing their homes as vacation rentals and devouring the city’s already strained housing supply.

The City Council’s housing and homelessness committee is considering adding inspectors, imposing stiffer penalties and requiring websites like Airbnb and Booking.com to use an electronic system already in place in New York City that would automatically reject bookings at properties that aren’t approved for short-term rental.

A July investigation by Capital & Main and ProPublica found more than 60 rent-controlled buildings with units advertised on booking sites despite LA’s Home Sharing Ordinance, which prohibits such stays in rent-controlled apartments. In some cases, entire apartment buildings were listed as boutique hotels on reservation sites.

Rent-controlled units make up nearly 75% of the city’s rental market; the designation caps annual rent increases at about 4% and is intended to preserve affordable housing for city residents.

The number of buildings with illegal listings is likely far higher than the news organizations found because most booking platforms mask the addresses of the properties. The LA Housing Department now estimates that 7,500, or about 60% of the city’s short-term rentals in multiunit buildings, are illegal, according to a memo sent by the agency’s interim general manager, Tricia Keane, to the City Council.

“I think having the capacity to do stronger enforcement is the big missing piece,” said Councilmember Nithya Raman, who chairs the housing and homelessness committee. She said very few violators were receiving citations and fines “because of how broken the process is.”

At a committee hearing in early December, the proposals faced opposition from several property owners, who urged the committee not to impose stricter rules. “I have become absolutely reliant on Airbnb to make ends meet,” said Joni Day, a freelance TV producer.

Airbnb and Booking.com representatives didn’t answer emails requesting comment on the city’s enforcement proposals. Airbnb previously told the news organizations that it works closely with city staff “to address Hosts who try to evade the rules.”

For more than a year, the housing and homelessness committee has been looking into the growth of home-sharing in LA. It has convened representatives of key city departments and the city attorney’s office to learn about enforcement of the 2019 home-sharing law against unapproved listings and what can be done to improve it.

Raman said the dysfunction in the city’s home-sharing enforcement system is a matter of “priorities and staffing.” Additionally, she said, “There are real breakdowns of communication between departments.”

In addition to spotlighting the misuse of rent-controlled apartments, Capital & Main and ProPublica documented how those breakdowns hobbled enforcement as cases were passed between the planning department, whose computer system flags potential home-sharing violations, and the Housing Department, which is tasked with actually citing violators.

Raman has asked city officials to draft plans to establish a single home-sharing task force to streamline the process.

However it’s organized, Housing Department Director of Code Enforcement Robert Galardi said he simply needs “boots on the ground” to investigate what he argues is an “underground” of illegal vacation rentals, which are often disguised as legal monthly rentals by some hosts to evade enforcement.

Capital & Main and ProPublica’s investigation found that relatively few property owners have been cited under the ordinance and that some of those who had been cited continued to offer short-term rentals after paying minimal fines or while their cases awaited appeal hearings.

In one case, residents and neighbors of 1940 Carmen Ave., a 21-unit apartment building in Hollywood, had repeatedly complained to the city about illegal vacation rentals. But the owner had never been fined for home-sharing. However, after the investigation, the owner was fined, and the building appears to no longer accept reservations on booking sites.

Building owner Alexander Stein didn’t return calls seeking comment.

Currently, the city imposes a $587 fine on first-time violators, but the department is proposing higher penalties that would escalate from $1,000 for first violations on the smallest properties to $64,000 for a third violation on the largest.

Another proposal from City Councilmember Bob Blumenfield would give any LA resident the right to sue property owners who offer illegal short-term rentals and to reap some of the damages if they win.

Activists who monitor home-sharing applauded the city’s efforts to strengthen the Home Sharing Ordinance. “Now, the problem is the city still has to develop the will to actually enforce this law,” said Noah Suarez-Sikes, an organizer for Better Neighbors LA.

As the housing and homelessness committee pieces together its proposals, a process that will likely continue well into 2025, it has asked city departments to report back on how the city could put them into effect.

The committee has also ordered the Housing Department to provide annual reports on its enforcement of another law aimed at preserving some of the city’s lowest-cost housing — in LA’s residential hotels, which typically provide single-room dwellings with shared bathrooms.

The Housing Department was granted five new positions this year to enforce the Residential Hotel Ordinance, which prohibits the conversion of residential hotels to tourist accommodations.

The budget allocation came in response to a 2023 investigation by Capital & Main and ProPublica, which found that lax enforcement of the law had allowed the loss of nearly 800 housing units to tourist rooms.

by Robin Urevich, Capital & Main

UnitedHealth Is Strategically Limiting Access to Critical Treatment for Kids With Autism

5 months 3 weeks ago

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There was a time when Sharelle Menard thought her son would never be able to speak. She couldn’t soothe Benji when he cried, couldn’t read him books he could follow, couldn’t take him out in public. “The screaming, and screaming, and screaming,” she said. “He would get so frustrated because he couldn’t communicate.”

Benji was nearly 3 when he was diagnosed with severe autism and soon after started a specialized therapy to help him develop basic skills. After two years in treatment, his murmuring gave way to small words, with “bubbles” among the first. To celebrate, Menard powered up a bubble machine she found at the dollar store, and for hours, they watched the iridescent orbs drift over their porch.

Menard, who is raising Benji alone in south-central Louisiana, began to picture a future for her son that diverged from the stories she’d heard about some kids with similar diagnoses, who grew up still unable to manage their frustrations and had to live in nursing homes or institutions.

But now, she’s worried again.

The insurer that has been paying for her son’s therapy, UnitedHealthcare, has begun — to the befuddlement of his clinical team — denying him the hours they say he requires to maintain his progress. Inside the insurance conglomerate, the nation’s largest and most profitable, the slashing of care to children like Benji does have a reason, though it has little to do with their needs. It is part of a secret internal cost-cutting campaign that targets a growing financial burden for the company: the treatment of thousands of children with autism across the country.

Sharelle Menard cares for Benji at their home in Louisiana. Benji, who is severely affected by autism, requires a specialized therapy. (Annie Flanagan, special to ProPublica)

ProPublica has obtained what is effectively the company’s strategic playbook, developed by Optum, the division that manages mental health benefits for United. In internal reports, the company acknowledges that the therapy, called applied behavior analysis, is the “evidence-based gold standard treatment for those with medically necessary needs.” But the company’s costs have climbed as the number of children diagnosed with autism has ballooned; experts say greater awareness and improved screening have contributed to a fourfold increase in the past two decades — from 1 in 150 to 1 in 36.

So Optum is “pursuing market-specific action plans” to limit children’s access to the treatment, the reports said.

“Key opportunities” are outlined in bullets in the documents. While acknowledging some areas have “very long waitlists” for the therapy, the company said it aims to “prevent new providers from joining the network” and “terminate” existing ones, including “cost outliers.” If an insurer drops a provider from its network, patients may have to find a new clinician that accepts their insurance or pay up to tens of thousands of dollars a year out of pocket for the therapy. The company has calculated that, in some states, this reduction could impact more than two-fifths of its ABA therapy provider groups in network and up to 19% of its patients in therapy.

Internal company documents reveal the strategy by Optum, a UnitedHealth Group subsidiary, to prevent ABA providers from participating in its network. (Obtained by ProPublica)

The strategy targets kids covered through the company’s state-contracted Medicaid plans, funded by the government for the nation’s poorest and most vulnerable patients. To manage Medicaid benefits, states often pay private insurers a fixed amount of funds per patient, regardless of the frequency or intensity of services used. When companies spend less than the allotted payment, they are typically allowed to keep some or all of what remains, which federal investigators and experts acknowledge may be incentivizing insurers to limit care.

United administers Medicaid plans or benefits in about two dozen states and for more than 6 million people, including nearly 10,000 children with autism spectrum disorder. Optum expects to spend about $290 million for ABA therapy within its Medicaid plans this year, and it anticipates the need increasing, documents show. The number of its Medicaid patients accessing the specialized therapy has increased by about 20% over the past year, with expenses rising about $75 million year-on-year.

So Optum — whose parent company, UnitedHealth Group, earned $22 billion in net profits last year — is “heavily investing” in its plan to save millions by limiting access to such care.

In addition to culling providers from its network, the company is scrutinizing the medical necessity of the therapy for individual patients with “rigorous” clinical reviews, which can lead to denials of covered treatment. Optum has developed an “approach to authorizing less units than requested,” the records state.

Internal company documents reveal Optum is deploying “rigorous utilization management” in response to an increased need for ABA therapy. (Obtained by ProPublica)

Mental health and autism experts and advocates reviewed ProPublica’s findings and expressed outrage over the company’s strategy. Karen Fessel, whose Mental Health and Autism Insurance Project helps families access care, called the tactics “unconscionable and immoral.”

“They’re denying access to treatment and shrinking a network at a time when they clearly know that there is an urgent need,” she said.

United and Optum declined a request ProPublica made more than a month ago for an on-the-record interview about their coverage of behavioral health care. They have not answered questions emailed 11 days ago, citing the Dec. 4 killing of UnitedHealthcare’s CEO as the reason. In an email, a spokesperson said “we are in mourning” and could not engage with a “non-urgent story during this incredibly difficult moment in time.” Offered an additional day or two, the company would not agree to a deadline for comment.

Benji, who is now 10, requires 33 hours of weekly therapy to be able to progress, his therapists have concluded. They have documented the consequences of having even a few hours less: toppled furniture, scratched-up classroom aides, a kid in unremitting tears, unable to learn. But in a letter to Menard, Optum said it was refusing to pay for the full hours, stating that her son had been in therapy for too long and was not showing enough progress to ultimately graduate from it.

“Your child still has a lot of difficulty with all autism-related needs,” Optum wrote. “Your child still needs help, but it does not appear that your child will improve enough to end ABA.”

The response confounded experts who spoke with ProPublica, who said such an approach misunderstands the long-term nature of his condition. “Challenges that often come with autism shouldn’t be looked at like an injury that you’re going to get better from quickly and then the treatment can stop,” said Christa Stevens, who directs state government affairs for the advocacy group Autism Speaks. “Treatment may still be medically necessary even if it’s for skill maintenance or the prevention of regression.”

The company’s denial also appears to contrast with recent professional guidelines for the therapy — which are cited as a reference in Optum’s own clinical criteria — that state “there is no specific limit on the duration of a course of treatment.”

The appropriate duration of treatment, according to those standards and experts interviewed by ProPublica, should be based on the patients’ needs, as evaluated by the clinicians working directly with the patients.

“This is a very blunt instrument to chase after excessive costs,” said Tim Clement, the vice president of federal government affairs at the nonprofit group Mental Health America.

Several advocates told ProPublica the company’s strategy is legally questionable.

The federal mental health parity law requires insurers to provide the same access to mental health and physical care. As ProPublica recently reported, United has gotten in trouble in the past for targeting therapy coverage in a way that violates the law; while denying the allegations, it agreed to a multimillion-dollar settlement. It continues to use arbitrary and one-size-fits-all thresholds to scrutinize its therapy claims, ProPublica previously found.

It would raise legal questions if the company restricted ABA more stringently than comparable physical care, the advocates said.

“Medicaid managed care organizations are subject to the parity act,” said Deborah Steinberg, a senior health policy attorney with the nonprofit advocacy group Legal Action Center. The company may be violating Medicaid regulations, she said, which require managed care organizations to maintain networks sufficient to provide covered services to all enrollees.

Last year, the federal government formally affirmed that ABA therapy is a protected benefit, and it recently investigated health plans for entirely excluding its coverage; legislators have passed laws in every state requiring insurance companies to pay for it.

“Yes, this therapy can be expensive,” said Dan Unumb, an attorney and president of the Autism Legal Resource Center. “But solving the problem by denying kids access to medically necessary care is a terrible solution.”

“What Happens if We Withdraw the Care?” Benji dances with his behavior analyst, Whitney Newton, at Aspire Behavioral Health Center in Lafayette. (Annie Flanagan, special to ProPublica)

Benji was making progress about three years ago.

For more than 33 hours a week in the specialized therapy, his clinicians broke down the learning process into basic steps, using repetition and positive reinforcement to affirm behaviors. The state’s Medicaid contractor, UnitedHealthcare, covered the bill.

Researchers have found that about a quarter of kids diagnosed with autism are severely affected; these children are often minimally or non-speaking or require extensive assistance for basic daily needs. “Things a lot of people take for granted,” said Menard. While experts continue to debate which therapies are most effective and appropriate for these kids, ABA is one of the most widely recommended.

By 7, Benji had accumulated a few dozen words, and his aggressive, prolonged tantrums had grown less frequent, allowing his mother to take him grocery shopping and to mass on Sundays. It was time for him to go to school, she thought.

Menard enrolled him in their public school district, St. Martin Parish. He attended Breaux Bridge Primary twice a week in a special education classroom and continued therapy the other days. Menard urged the district to allow a therapeutic technician to shadow him in school, but it refused. (The district declined to respond to ProPublica’s questions, citing privacy restrictions.)

With the diminished hours of treatment, Benji grew increasingly disruptive. “It was a disaster,” said Menard. He snapped a swing in gym class and struggled to sit still during lessons. When teachers tried to give him instructions, he hit them. His speech plateaued and eventually regressed.

Menard, who cleans pools for a living, grew to fear the moment her phone rang. School employees, unable to soothe Benji’s tantrums, frequently called her to take him home. One morning last spring, they told her Benji had lashed out when an aide tried to persuade him to work, aggressively poking their hand with a pencil. He hadn’t broken the skin, but after a dozen incidents, the situation was becoming unsalvageable. The district made her sign a behavioral contract, his second in two years: If Benji didn’t behave, he could be suspended or expelled.

Menard felt she had no choice but to withdraw Benji. She enrolled him full time in a home-study program run by his therapy group, Aspire Behavioral Health Center in Lafayette, which costs about $10,000 a year in tuition, a substantial portion of her paycheck. That was in addition to the therapy cost, which his insurance still covered.

Benji’s clinicians determined he needed direct support for most of the day and told Optum they wanted him to scale up his therapy from 24 hours a week to 33. They expected the insurer would approve the request; after all, it was less than what was previously covered and only nine hours more than it was currently paying for.

But Optum denied the increase in a letter to Menard this past May. “Your child has been in ABA for six years,” the insurer wrote. “After six years, more progress would be expected.”

The response disturbed Whitney Newton, Benji’s behavior analyst and a clinical director at Aspire; it didn’t seem rooted in the established medical standards for the treatment. She’d seen firsthand how critical the therapy had been to his growth. “We know what he needs. It’s in our scope of practice and it’s our right as the provider to determine that,” she said. “They’re cutting and denying an unethical amount.”

Newton has worked with Benji since he was 3. (Annie Flanagan, special to ProPublica)

The center’s founder, psychologist Joslyn McCoy, has grown accustomed to battling insurers. Her practice serves about 160 patients between the ages of 2 and 19 across five centers, and many have Medicaid coverage. In 2022, Louisiana expanded its Medicaid parameters, allowing parents with higher incomes to access coverage for children with complex medical needs.

“What I’m seeing is that children now have this ticket to access this care, but then once they go to try to access it, it’s being denied,” she said.

Nearly two years ago, Optum selected her center for a payment integrity audit, demanding to inspect its clinical and billing records. After her team turned over thousands of pages of documentation, Optum conducted a separate in-person quality review.

Internal company records show Optum is targeting ABA providers for scrutiny based on how much they invoice and how many services they provide. Groups like McCoy’s can be flagged for patterns that providers told ProPublica are typical in the delivery of ABA therapy: billing on weekends or holidays, serving multiple family members in one practice, having long clinician or patient days, providing an “above average delivery” of services, or abruptly increasing or decreasing the number of patients or claims.

Internal company documents reveal Optum’s strategy for identifying ABA providers for scrutiny based on “outlier patterns.” (Obtained by ProPublica)

McCoy said that a company executive who visited her office for the quality review told her that she approved of the center’s work and thought Aspire should expand across the state.

But Optum has continued to challenge her patients’ individual therapy claims.

When her team received the denial for Benji’s care, McCoy set out to gather hard evidence to demonstrate the necessity of his treatment. “It’s what we call a reversal to baseline, where we will withdraw the treatment for a short period of time,” McCoy said. “The reason is to demonstrate what happens because we’re curious, too: What happens if we withdraw the care?”

Joslyn McCoy, founder and director of Aspire Behavioral Health Center (Annie Flanagan, special to ProPublica)

Much of the therapy is driven by positive reinforcement; for example, if Benji pays attention and engages in his academic exercises, he can take a break to play on his iPad. But the reward is contingent on him not hitting anyone for at least 10 minutes at a time. During the experiment, the clinicians took away the possibility of his reward, and without an incentive, they had limited leverage to manage his behavior.

At first, Benji lightly hit the staff, they said, as though testing the limits. But when there was no response to his behavior, it began to escalate. He tossed chairs and flipped tables. He pushed Newton into a bookshelf, which collapsed to the ground. He hit walls and windows, eventually turning his fists on his aide. They stopped the experiment early, both for his safety and theirs.

Once they resumed the interventions, Benji was able to calm down.

Newton drafted a report, including line charts that quantified his behavior with and without the interventions and photographs of her team’s injuries. She faxed it to Optum, asking the company to reconsider the denial.

The insurer did not change its decision.

“The Need Is Not Going Away” Benji works with registered behavioral technician Hortencia Cervantez during ABA treatment. (Annie Flanagan, special to ProPublica)

Last month, inside a cubicle decorated with posters of Minions and Mario Brothers, a behavior technician placed a laminated card with an image of a sneaker in front of Benji.

“What is this?” she asked him.

Benji paused, rubbing the edge of his baseball cap and pursing his lips. “Sh,” he said, stuck on the consonant.

“Shoes, that’s right,” the technician responded. She pulled out another card, showing a slice topped with white frosting. “Is this cake?”

“No,” Benji said.

“Is this cake?” she repeated, before adding, “yes.”

“Yes,” echoed Benji, but her correction appeared to frustrate him. He hit the technician on the leg, softly but with determination.

“We’ll let it go,” she warned with a sugared voice, “but hands to self, OK?”

After 10 minutes, a timer beeped. It was time for Benji’s reward, getting to hear a reggaeton hit by Daddy Yankee. “It’s a big reinforcer here,” Newton said.

Even though Optum denied the additional hours of treatment, Benji has continued to receive them. “We’re giving the hours even if they were not approved,” McCoy said. “We don’t think it would be safe for him to do what the insurance is saying.”

Next month, a state administrative law judge will hear an appeal for the additional hours. If the request is approved, Benji’s clinicians will be paid for the six months of services that they’ve provided without reimbursement.

Even if that happens, their battle with the insurer will go back to square one. Each insurance authorization typically lasts for only six months, and soon after the hearing date, the clinicians will have to request coverage for his treatment again.

They will be doing so at a time when internal records show Optum has deployed more than 90 “care advocates” to question clinicians about the medical necessity of their patients’ ABA treatment, using “quality initiatives to decrease overutilization and cost.”

Optum is focusing on states whose Medicaid plans yield the highest costs for ABA therapy, including Arizona, Nebraska, Tennessee, Virginia, New Jersey, Indiana and Louisiana, where Menard and her son live. ProPublica reached out to the state Medicaid programs with questions about their oversight of United’s practices. Arizona’s Medicaid agency told ProPublica that all managed care organizations, including United, are required to provide timely services within their networks, and that the agency has been closely monitoring ABA networks. (Read its full response.) No other state Medicaid agencies responded to ProPublica’s questions.

Internal company documents reveal Optum’s strategy for managing its ABA coverage. (Obtained by ProPublica)

Autism experts said such a strategy may not only be harmful to children, it could also ultimately be more expensive for states, as children age and require more intensive services, like residential or nursing care.

“If these kids get the intervention they need as children, then there will be tremendous cost savings over the course of their lives,” said Lorri Unumb, an attorney and CEO of the Council of Autism Service Providers.

Menard worries about what will happen to her son’s hard-fought gains if he can’t get the level of therapy he needs. And even if the additional nine hours are approved, she fears that with the next authorization, they could face a more drastic denial that could be challenging to overturn.

“This motivation and momentum — when you lose that,” she said, “it’s so hard to get it back.” She doesn’t believe that Benji needs to be fixed or cured or changed from who he is. She just hopes the therapy helps him to be better able to advocate for himself and, ultimately, be safe. “There’s nothing else that I’ve known to work,” she said.

McCoy resents being put in the position of scaling back care that her patient needs because an insurer is refusing to pay. “It puts us in a tough place, because we don’t want to discontinue therapy of our client who’s not ready,” she said.

When such denials become common, it disincentivizes clinicians from working with insurance companies, she said, and can ultimately drive clinics into the ground. “The patients can’t afford it,” she said, “so eventually the private provider goes out of business.”

But even if children like Benji get pushed out of treatment, there is no shortage of children seeking care. McCoy’s center currently has a waitlist of about 260 children.

That list may likely expand. Internal documents show Optum is aiming to exclude from its network about 40% of Louisiana groups that offer ABA therapy. About 1 in 5 children whose treatment is covered by the company's Medicaid plan in the state could lose access to care.

“If the insurance company wants to deny all of our clients, we’re going to replace them,” she said. “The need is not going away.”

We’re Investigating Mental Health Care Access. Share Your Insights.

by Annie Waldman

A Coast Guard Commander Miscarried. She Nearly Died After Being Denied Care.

5 months 3 weeks ago

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The night the EMTs carried Elizabeth Nakagawa from her home, bleeding and in pain, the tarp they’d wrapped her in reminded her of a body bag.

Nakagawa, 39, is a Coast Guard commander: stoic, methodical, an engineer by trade. But as they maneuvered her past her young daughters’ bedroom, down the narrow steps and into the ambulance, she felt a stab of fear. She might never see her girls again.

Then came a blast of anger. She’d been treated for a miscarriage before. She knew her life never should have been in danger.

Earlier that day, April 3, 2023, Nakagawa had been scheduled to have a surgical procedure called a D&C, or dilation and curettage, to remove fetal tissue after losing a very wanted pregnancy. But that morning, she was told the surgery had been canceled because Tricare, the military’s health insurance plan, refused to pay for it.

While her doctor appealed, Nakagawa waited. Then the cramps and bleeding began.

In recent months, ProPublica and other media outlets have told the stories of women who died or nearly died when state abortion restrictions imposed after the Supreme Court’s 2022 Dobbs decision impeded them from getting critical care.

But long before Roe v. Wade was overturned, military service members and their families have faced strict limits on abortion services, which are commonly used to resolve miscarriages.

Under a decades-old federal law, the military is prohibited from paying for abortions except in cases of rape, incest or to save the life of the mother. This applies even to service members based in states where abortion is legal; Nakagawa lives in Sonoma County, California.

There’s also no exception for catastrophic or fatal fetal anomalies. In such cases, service members either have to pay out of pocket for abortions or carry to term fetuses that won’t survive outside the womb.

Tricare does allow abortions in cases like Nakagawa’s, in which the fetus has no heartbeat. But even then, some doctors who treat military service members say that Tricare requires more documentation and takes longer to approve these procedures than other insurers, putting women at risk.

“There definitely have been cases where our Tricare patients have required emergency services, emergency D&C procedures, blood transfusions, things that have been critical to lifesaving care because their procedure had yet to occur,” said Dr. Lauren Robertson, an OB-GYN who has served military members and their spouses in San Diego for more than a decade.

Erin Edwards is a Navy veteran and reporter who has been covering reproductive health care access for military members. She’s spoken with military and civilian doctors, researchers and patients across the country about the challenges service members have long faced in obtaining reproductive health care.

Robin Fields is a longtime ProPublica reporter who has written about maternal deaths and near-deaths, as well as about the reliability of data gathered on maternal mortality.

If you want to get in touch and learn more about how we work, email Edwards at erin@moseyroad.com or Fields at robin.fields@propublica.org. We take your privacy very seriously.

“It just feels very unnecessary.”

Since the Dobbs decision, abortion care for service members seems to be coming under heightened scrutiny, said retired Rear Adm. Dana Thomas, who was until recently the Coast Guard’s chief medical officer and advocated for Nakagawa.

“Trust me, post Roe v. Wade, I’m sure people felt there was much more of a spotlight,” Thomas said. “I think they were more guarded after June of ’22.”

After being rushed to the emergency room, Nakagawa hemorrhaged for four more hours before doctors performed the surgery Tricare had refused to authorize. Later, Tricare and Defense Department officials would all agree that Nakagawa should have been treated as her doctor recommended, and she said they told her they’d taken steps to prevent future mistakes.

But her experience, which doctors say nearly cost Nakagawa her life, laid bare the challenges service members have long faced in obtaining reproductive health care. And it raises questions about whether the Supreme Court’s ruling has created a chilling effect that has further complicated access to these procedures.

Officials at the Defense Health Agency, which runs the military health system, including Tricare, did not respond to specific questions from ProPublica, but they provided a statement saying its policies haven’t budged.

“There have not been any changes to Tricare coverage or documentation requirements for medically necessary care of D&Cs following the Supreme Court’s Dobbs decision,” the statement said. “Medically necessary care was, and continues to be, covered.”

The agency declined to answer questions about Nakagawa, saying that “as a matter of practice” it doesn’t discuss individual beneficiaries’ care. (ProPublica is involved in an unrelated public records lawsuit with the DHA.)

As a senior officer, Nakagawa felt duty-bound to press for answers about what happened to her.

“The abortion policy, in theory, is supposed to protect life, and in my case it did the opposite,” Nakagawa said. “It almost led to my children not having a mother.”

After the Supreme Court upended Roe, the Biden administration took steps to reassure service members that their access to reproductive health care would remain unaffected by a wave of state abortion bans.

An October 2022 memo from Defense Secretary Lloyd Austin pledged to facilitate leave for service members seeking abortions that were not covered by Tricare, and to pay for travel if care wasn’t available nearby. It also emphasized that these procedures would be “consistent with applicable federal law.”

The statute barring the Defense Department from paying for most abortions goes back to 1985 and mirrors language in what’s called the Hyde Amendment. Named for its author, Henry Hyde, a Republican representative from Illinois, Congress has attached the amendment to spending bills since the late 1970s to prohibit the use of federal funds on abortion.

With Congress in control of military spending, abortion care is highly politicized, said Kyleanne Hunter, a Marine Corps combat veteran and senior political scientist at RAND Corp. “There’s been a lot of backlash and a lot of scrutiny and a lot of congressional disapproval as to how the DOD has engaged with abortion care, D&C care and the like.”

About 9.5 million people, including active-duty service members and their families as well as military retirees and their dependents, rely on Tricare for health services. Women make up a growing portion of the active-duty force, more than 17%. They also leave the military at higher rates. Research by RAND and others suggests the military’s reproductive health policies may make it harder to recruit and retain them.

Dr. Toni Marengo, a former Navy OB-GYN, said she left the service in part because she felt unable to provide patients with appropriate care. Many of them only discovered how sharply Tricare’s policies curtailed access to procedures like D&Cs when they needed them.

“It was like living in a pre-Roe world,” said Marengo, now chief medical officer at Planned Parenthood of the Pacific Southwest.

The effects have been felt for decades. In 1994, Maureen Griffin and her then-husband, a captain in the Air National Guard, ended her pregnancy after learning their baby had anencephaly, a fatal birth defect. They found out the military considered her induced labor an abortion when she got a phone call from a bill collector for the hospital seeking thousands of dollars in reimbursement for the procedure.

“I said: ‘We have full coverage. My husband’s in the military.’ And they said, ‘They don’t pay for abortions,’” Griffin recalled. “We were completely blindsided. I mean, no one called it an abortion. It was a horrible tragedy.”

Griffin, then known as Maureen Britell, was so outraged that she sued the Defense Department, winning a judgment in federal district court in 2002. Two years later, an appeals court reversed the decision, upholding the Defense Department’s refusal to cover abortions in such circumstances.

Twenty-five years after Griffin’s pregnancy, Samantha Babcock spent the equivalent of seven paychecks to fly home from her husband’s Air Force base in Okinawa, Japan, for an abortion Tricare wouldn’t cover.

She was five months pregnant when doctors told her that her fetus had multiple abnormalities and wasn’t viable.

The grief was crushing. Then she found out that, by law, the military couldn’t perform or pay for a surgery called a D&E, or dilation and evacuation, which her military doctors agreed was the safest option. She and her family paid $14,000 — most of it for plane tickets — with help from a GoFundMe so that she could go home to Portland, Oregon, to get the procedure.

She still can’t believe such a step was necessary.

“I assumed Tricare had my best interest at heart,” she said. “If the condition was fatal, why wouldn’t they help me?”

Babcock said her specialist told her that the military would pay to transfer her temporarily to Hawaii for more testing. They also offered to move her family to a location where they would have access to specialty care for the baby in the unlikely chance she survived outside of the womb.

For Babcock, that was untenable. “I did not want to keep growing a baby that wouldn’t live,” she said.

In August 2022, Thomas, the Coast Guard’s chief medical officer, was galvanized into action when a service member sought help to end her pregnancy after receiving a diagnosis similar to Babcock’s.

Doctors had recommended that, like Babcock, she have a D&E. Because the fetus still had a heartbeat, Tricare would not approve the procedure.

Thomas called Tricare daily trying to find a solution, then elevated the case to leaders at the DHA, which sets policy for the health plan. “We have to do something,” she told them.

Dana Thomas, a retired rear admiral and chief medical officer at the Coast Guard (Caroline Gutman, special to ProPublica)

Tricare stuck to its denial even after the service member’s doctor appended a note explain­ing that continuing the pregnancy would endanger the patient’s life.

That was the first case Thomas had taken on after Dobbs.

The second was Nakagawa’s.

Nakagawa and her husband, Matt, met a couple years after earning engineering degrees from the Coast Guard Academy in the mid-2000s. Their path to a family was long and bittersweet. In 2015, they suffered a miscarriage. A year later, their first daughter was born. Then came a second miscarriage, followed by the birth of a healthy girl.

For the next three years, they tried for another child. Then Nakagawa got pregnant in 2021, only to learn at 10 weeks there was no fetal heartbeat. She waited, hoping to miscarry naturally, then tried abortion pills.

When a follow-up exam showed she hadn’t passed all the fetal tissue, her OB-GYN scheduled a D&C. The procedure was approved by Tricare, and she had the surgery soon afterward.

By early 2023, Nakagawa had risen to become chief of engineering at the Coast Guard’s training center in Petaluma, California, and her husband had left the service and was supporting her as a stay-at-home dad. They were thrilled to learn she was pregnant, only to have their joy turn to devastation when two ultrasounds showed that once again, her fetus had no heartbeat.

This time, since abortion pills hadn’t worked in 2021, Nakagawa and her OB-GYN agreed the best course would be to schedule a D&C as soon as possible. Her doctor’s office scheduled the procedure for Monday, April 3, and requested approval in advance, or prior authorization, from Tricare.

Then, five hours before the procedure was scheduled to begin, the office told Nakagawa the surgery was canceled — Tricare had refused to cover it.

In its denial letter, Health Net Federal Services, the contractor that administered claims for Tricare’s western region, said the services requested were “not a covered benefit.”

The insurer’s letter also said it had requested additional information from Nakagawa’s doctor, but that the information had not been sent. (Health Net declined to answer questions from ProPublica about Nakagawa even though she waived her right to privacy.)

Her doctor maintains that wasn’t the case. She declined to be identified, citing concerns about safety.

“Tricare has always been difficult to work with for coverage of women’s health care — they require records more than other insurances — this often creates a delay in care,” the doctor said via text.

The office staff appealed the denial, telling Nakagawa they’d provided documentation of the ultrasounds showing no fetal heartbeat. The staff also told her a Tricare medical director wasn’t available to review it that day and that it might take an additional three to five days to get a response.

Nakagawa called Tricare for answers herself, only to be told her options were to wait or pay out of pocket — not only for the surgery but for any follow-up care, including mental health counseling.

“It was surreal. I was angry and shaking,” Nakagawa said. She couldn’t understand why Tricare had approved her D&C in 2021 under similar circumstances, then denied the same care two years later.

Overwhelmed by emotion, she climbed into bed and cried herself to sleep.

At about 5 p.m., her doctor provided a prescription for abortion pills as a backup plan. But before Nakagawa could pick it up, she started to miscarry.

The first signs were mild cramping and spotting. Soon after, the fetus passed. Nakagawa yelled for her husband and sobbed. They consoled themselves with the thought that they’d made it through the hardest part.

“At least this is over,” Nakagawa recalled saying. “At least God’s giving us a break for once.”

Then the hemorrhaging started — fist-sized clots of blood that soaked through sanitary pads in minutes. Nakagawa lay in the fetal position on towels, in so much pain she couldn’t sit up.

Around 9 p.m., her husband called the doctor, who recommended they go to the emergency room.

At the hospital, she was given fluids, a clotting drug and a transfusion, but her bleeding continued.

After four hours, doctors decided her condition was critical and they needed to intervene. They performed a D&C to remove the remaining tissue.

Nakagawa’s recovery took more than a week. Lying on her couch, unable to walk, she was determined to ensure other service women would get the care she was denied. Taking a risk, she banged out a long email to Thomas, who had a reputation for being approachable.

“I feel compelled to report a traumatic experience I went through that will undoubtedly impact more women in the CG and DOD if the TRICARE policy is not changed,” the email began. “The summary is that I nearly lost my life last week due largely to a TRICARE policy regarding miscarriages and abortions.”

Thomas connected Nakagawa to the Defense Health Agency’s chief medical officer, Dr. Paul Cordts, who called her personally a month after her emergency surgery.

Nakagawa said that Cordts seemed apologetic and even angry on her behalf. “This shouldn’t have happened to you,” she recalled him saying, adding that he’d get to the bottom of what went wrong. (Cordts didn’t respond to emails from ProPublica.)

Two days later, a new record appeared in Nakagawa’s Tricare file: a letter approving the scheduled D&C she’d never received and no longer needed. “Please contact the provider to schedule your appointment(s),” it said.

Cordts also arranged for Col. John Verghese, Tricare’s chief of clinical oversight and integration, to look into her case. Nakagawa said she had two calls with Verghese, who looped in a senior official at Health Net, the Tricare contractor that had dealt with the request to cover her D&C.

In one, she said, Verghese acknowledged Tricare had become more conservative in reviewing requests for D&Cs, requiring more documentation to justify approving these procedures. (Verghese, who has retired, declined to answer questions from ProPublica about the case.)

He admitted that until her case, Tricare hadn’t understood that delaying or denying care could put women at risk, she said. This infuriated Nakagawa.

“I just said, ‘Well, maybe you didn’t realize there would be physical negative consequences, but you had to know there would be mental and emotional consequences to making women carry around their [dead] fetuses’” after a miscarriage.

Verghese quickly apologized, she said.

On the final call, Nakagawa said that Verghese and the Health Net official told her that from now on, they would no longer require doctors to submit proof of no fetal heart tones to get approvals for D&Cs and would speed up reviews of appeals.

In its statement to ProPublica, the DHA maintained that Tricare’s coverage and documentation requirements for D&Cs have not changed.

Nakagawa is one of few women in senior leadership within Coast Guard civil engineering. She remains committed to serving in the military. But she worries about the impact the Defense Department’s reproductive health policies could have on service members and their spouses and daughters. Junior members especially might be less able to advocate for themselves, she said.

“At the very least, this policy will likely encourage women, like myself, to work for a company that has insurance that will cover these procedures,” she said, “At the worst, it will lead to service members or their dependents losing their lives.”

Mariam Elba contributed research.

by Erin Edwards for ProPublica and Robin Fields

The Biden Administration Is Separating Families at the Border. It Doesn’t Always Say Why.

5 months 3 weeks ago

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In handwritten cursive, a Russian immigrant named Marina wrote out the story of the day U.S. Customs and Border Protection agents took away her 1-year-old baby while she was being held in a detention facility in southern California. “I cried and begged, kneeling, not to do this, that this was a mistake, not justice and not right,” she wrote. “She was so little that no one knew anything about her. I was very afraid for her and still am!”

This didn’t happen during the Trump administration, which separated more than 4,000 migrant children from their families under its controversial “zero tolerance” policy. Marina was separated from her baby in April of this year. The 40-year-old former restaurant manager came to the U.S.-Mexico border with her husband, mother-in-law and child to seek asylum. More than eight months later, she and her mother-in-law remain in federal immigration custody in Louisiana. Her husband is detained at a different Louisiana immigration facility. And Aleksandra is over a thousand miles away, being cared for by strangers in foster care in California.

Aleksandra is one of around 300 children the Biden administration has separated from their parents or legal guardians this year, according to two government sources who asked not to be identified because they hadn’t been authorized to speak about the separations. Most of the cases involved families crossing the southwestern border, the sources said. These numbers haven’t previously been reported.

Similarly, 298 children were separated from their parents in 2023, according to a government report to Congress published on Tuesday, even as overall migrant crossings have declined. According to the report, the average amount of time children separated between April 2018 and October 2024 have spent in federal custody before being released to a sponsor is 75 days.

The Department of Homeland Security, Customs and Border Protection, and Immigration and Customs Enforcement did not respond to multiple requests for comment on the numbers or on Marina’s case.

Those officials who did speak about the separations did so on the condition they not be identified. They said the current separations are not similar — in either character or scale — to what was happening during the Trump administration. Its zero tolerance policy directed authorities to detain and criminally prosecute all immigrants caught illegally crossing the border and to separate them from their children if they were travelling together. Biden administration officials say they have only separated families for reasons according to longstanding immigration practices, including when they have concerns about the parents or the safety of the children. Some of those concerns are related to suspicions about abuse, criminal histories or threats to national security.

The administration reports the numbers of separations to Congress and to lawyers at the American Civil Liberties Union who have been charged with providing oversight. However, those reports give few details about the reasons for the separations, especially in cases where parents have been flagged for national security reasons. Around 80 of the children separated between December 2023 and November 2024 were in that category, one of the government sources said, and some 50 of those were Russian, like Aleksandra. The second source said at least 10 of the Russian children who were separated this year are still in government custody.

In cases involving national security, the government can withhold its rationale even from the families themselves, making it hard for them and their lawyers to contest the separations or mount a defense. And some advocates have been reluctant to talk publicly about the current separations, much less call out President Joe Biden’s administration, as they press for the government to resolve their clients’ cases and fear the incoming Trump administration could apply the same standards more broadly to separate more families in the future.

Family separations at the border did not begin with the zero tolerance policy and didn’t end when it was lifted, said Talia Inlender, deputy director of the Center for Immigration Law and Policy at the University of California, Los Angeles School of Law, which wrote a report on family separations going back to the Obama years and before. She said that while Trump’s policy was unprecedented because of how expansive it was, the scant information that the government provides about separations at the border has been common practice across administrations.

“I think the lack of transparency creates a lack of accountability,” she said, “and that is by design.”

“Where there is room left for agency discretion,” Inlender said, “that’s really where we need to make sure that there are eyes on what is happening, so that these exceptions, or these grey areas, don’t become the rule.”

During telephone interviews with Marina and her husband, conducted through a translator, the couple said they hoped by breaking the silence on their case, they might get answers about why they were separated from their daughter and get her back. They asked to be identified only by their first names because of their pending deportation cases.

Marina said that she and her husband Maksim, who worked as a supplies manager at a construction company, had met at a restaurant where Marina worked in Moscow. They married in 2021 and tried for years to have a child before Alexsandra was born.

Maksim said he started going to antigovernment protests in support of opposition leader Alexei Navalny and later against Russia’s invasion of Ukraine. According to an affidavit Marina gave as part of her asylum case, she said Maksim had been detained, questioned and on one occasion beaten up by police after protests. ProPublica could not independently corroborate the accounts of his political activity. They both said Marina wasn’t involved in the protests and had asked him to stop attending them. Eventually the family decided to leave the country, fearing government reprisals.

After researching the best routes into the U.S. online, they said they bought tickets to Dubai, Mexico City and Tijuana, which sits on the border with California. Once in Tijuana, Marina said they waited for six months for an appointment after using a U.S. government app known as CBP One to apply for permission to approach the border and ask for asylum. They were finally granted a slot and allowed to cross in mid-April.

But instead of being released to pursue their asylum claim, Marina said she and Aleksandra were held in a cold cell at a Border Patrol detention facility. She said she was given only formula and vegetable purees for Aleksandra. She smashed up bread from her own sandwiches to give her daughter extra food. At the time Aleksandra was learning to walk and was always moving around; she had just started to talk.

Then, after several days, Marina said she and her baby were surrounded by border officials who told her the adults would be detained and Aleksandra would be taken away. She said one of the agents handed her a note that read: “CBP has made this decision for the following reason: You are being taken into custody for presenting a public safety or national security risk.”

Recalling the desperation she felt upon seeing the note, Marina wrote: “Why would that be? I didn’t even have an interview!!!”

She said she became catatonic after a Border Patrol agent took her daughter by the hand and led her away.

“I thought I died at that moment.”

Excerpts from a handwritten account by Marina, a Russian immigrant, about her separation from her 1-year-old at the U.S. border. She wrote and translated it in detention and shared it with ProPublica.

Her experience might sound familiar to anyone who followed the news about the thousands of separations carried out by the Trump administration. Its zero tolerance policy first began as a pilot program in 2017, but the administration denied its existence until spring 2018. Even then, authorities refused to make public the details of how the policy was being implemented, including where the children were being held, how many of them were in custody, or even how the separations were conducted.

In June of 2018, ProPublica obtained audio that had been recorded in a Border Patrol facility of wailing children who had been separated from their parents. Among them was a 6-year-old girl, pleading to make a phone call to her aunt. That audio triggered a bipartisan outcry that led the administration to announce the end of the policy 48 hours later. And a federal lawsuit brought by the ACLU forced the administration to reunify the children in its custody with their families.

That reunification effort continued even after Trump left office. Biden, who called zero tolerance a “a moral and national shame,” formed a task force to finish the reunifications shortly after taking office. It found that some parents had been deported without their children and remained separated years later. Biden promised going forward that his administration would not separate children from their parents “except in the most extreme circumstances where a separation is clearly necessary for the safety and well-being of the child or is required by law.”

Biden’s Justice Department negotiated a settlement with the ACLU allowing it to disperse assistance to the families that had been harmed by zero tolerance. Under the terms of the deal, signed last December, future family separations were only allowed in “limited” circumstances, including when parents are deemed a threat to the child, have an outstanding arrest warrant or need to be hospitalized.

The settlement also said separations were allowed when government officials found parents or legal guardians could pose “a public safety or national security risk to the United States,” including people suspected of terrorism or espionage. But in those cases the agreement says that the government is not required to provide documentation of the reason for its decision if it would mean disclosing sensitive information.

Such cases could include instances when migrants’ names come up on an international watch list, said a third government official, who, like the others, spoke on the condition of anonymity. In June of this year, the U.S. Treasury Department sanctioned two Uzbeks and one Russian national for alleged links to an ISIS-linked human smuggling network that the State Department said facilitated travelers coming to the United States.

“If they are looking into cases more deeply and then people are let go after they found out the information they had was not correct,” the official said, “it’s still pretty difficult to say we shouldn’t go ahead and make those checks if we need to pay extra security attention in these cases.” Sometimes, the official said, authorities are able to quickly resolve any security concerns and reunite the families.

Advocates do not disagree that sometimes separations are warranted, said Lee Gelernt, an ACLU attorney and the lead lawyer in the family separation lawsuit. And they said they understand the sensitivity of sharing information that could put the country at risk.

However, when asked whether the Russian cases highlight the potential pitfalls of the agreement the ACLU made with the administration, Gelernt said that the government “cannot create a loophole and place everything in the black box of national security.”

He added that if the exceptions become “an excuse to circumvent the bar on separations, we will return to court.”

With Biden leaving office soon, it’s the incoming Trump administration that most worries the advocates. Trump made stopping border crossings and mass deportations a centerpiece of his campaign and says they are part of his Day 1 plans for when he takes office, but when asked several times in an interview over the weekend if he would revive the zero tolerance policy, he said: “We’ll send the whole family, very humanely, back to the country where they came. That way the family’s not separated.”

Inlender wasn’t convinced that Trump wouldn’t ramp up family separations. “With any loopholes that exist in policies, any loopholes that exist in the settlement agreements, I think there is always a danger when you have an incoming administration that has already both shown itself willing, and in some cases able, to inflict cruelty to separate families, that they will use any tools at their disposal,” Inlender said.

The children who were separated from their parents for national security reasons in the past year came from a range of countries, including Romania, Turkey, Ukraine, Lebanon, Iran, Kyrgyzstan, Armenia, Colombia and Venezuela, the two government sources said. The majority, however, came from Russia. In fact, only one Russian child separated from their parents this year was listed as being separated for a reason other than national security, they said.

None of the officials interviewed could say whether Russian families had been flagged for special scrutiny. The 50 Russian children separated last year represent a very small share of the overall Russian border crossings. According to CBP data for the 2024 fiscal year, which began last October and ended in September, 7,137 Russian families crossed the southwestern border, almost all of them through legal ports of entry like Marina’s family.

The secrecy surrounding Marina’s case has meant the government has not told her or her lawyer any more specific reason for her detention and prolonged separation from Aleksandra. Marina’s New York-based attorney, Elena Denevich, said in an email that while she has filed a series of parole requests for Marina since May, “the requests were denied based on unspecified ‘national security concerns.’” Denevich said DHS “has provided no evidence or explanation to substantiate this allegation.”

The Office of Refugee Resettlement, which is part of the Department of Health and Human Services and oversees migrant children, said it could not comment on individual cases and referred questions about enforcement to DHS. ORR, which earlier this month had only published data on family separations through January 2024 on its website, updated its site with nine new reports from February through October this week.

In addition to interviews, Marina shared her four-page handwritten account of the separation after translating it herself into English using a tablet provided to her in detention. ProPublica reviewed court documents and spoke to Maksim’s stepfather, who crossed the border months earlier but was released to pursue an asylum claim.

Marina’s family has joined a class-action lawsuit brought by more than 150 detained Russian-speaking asylum seekers against the government claiming they are systematically being denied parole by ICE because of their nationalities. Maksim’s stepfather says he has been working nonstop as a long-haul truck driver to pay for legal fees as he fights for the release of his family. ICE said it could not comment on pending litigation.

After their separation, Marina, stuck in detention, said she had to wait three months before she was finally allowed to speak with her daughter on the phone in July. Beginning in August, they were allowed weekly video calls. Because the family Aleksandra is staying with doesn’t speak Russian, Marina has asked them to put on Russian YouTube videos from time to time so her daughter can listen to people speaking her native language. She says Aleksandra looks healthy and like she is being well taken care of, surrounded by toys and wearing new clothes. She is grateful for the foster family, who points to the screen and says “mama” when they talk to remind her who her mother is, but she breaks down crying when talking about how the separation has affected her.

“I’m just trying to take care of myself because my little daughter needs a healthy mom. But because she is so little, I feel really bad. I am starting to fall apart, both mentally and physically,” Marina said from detention. She said she is having trouble sleeping and experiencing a series of worsening health problems.

Not knowing the reason behind their family’s separation is agonizing.

“I don’t have the slightest clue why they did this to us.”

Andrey Babitskiy contributed reporting.

by Mica Rosenberg

The FDA Hasn’t Inspected This Drug Factory After 7 Recalls for the Same Flaw, 1 Potentially Deadly

5 months 3 weeks ago

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The drug potassium chloride has been on the market for decades, widely prescribed to help the nerves and muscles — including the heart — function properly in patients with low potassium. Too much of it, however, can kill you.

At high doses, it is so effective at stopping the heart that some states have used injections of it for executions.

So the danger was obvious in May, when Indian drugmaker Glenmark Pharmaceuticals recalled nearly 47 million capsules for a dire flaw: The extended-release medication wasn’t dissolving properly, a defect that could lead to a perilous spike in potassium. The U.S. Food and Drug Administration deemed it the most serious kind of recall, a defective drug that had the potential to kill people.

At the time of the recall, the FDA, which is charged with protecting Americans from unsafe drugs, was already on notice about troubles at Glenmark.

The Mumbai-based company had four recalls in the previous eight months and would have two more in following months, all for the same dangerous tendency for pills to dissolve improperly. All the faulty medications were made at the same Glenmark factory in central India, government records show.

Yet the FDA hasn’t stopped Glenmark from shipping pills from the factory to American patients. Nor did it send investigators to the Indian facility to figure out what had gone wrong. Its last inspection of the plant was more than four years ago, before the COVID-19 pandemic.

“They should have been camping out there,” said Patrick Stone, a former FDA inspector who now advises pharmaceutical companies.

Glenmark’s String of Recalls

In less than 12 months, Glenmark Pharmaceuticals had seven recalls for drugs that didn’t dissolve correctly. All were made at the same factory in central India, records show.

Oct. 20, 2023: Recall of deferasirox tablets for oral suspension, which treat iron overload from blood transfusions

Oct. 23, 2023: Recall of ranolazine extended-release tablets, which treat chest pain

March 26, 2024: Recall of diltiazem hydrochloride extended-release capsules, which treat high blood pressure

April 17, 2024: Another recall of diltiazem hydrochloride extended-release capsules

May 29, 2024: Recall of potassium chloride extended-release capsules, which treat low potassium. This recall was expanded on June 24, 2024, and announced by the FDA the next day.

June 28, 2024: Recall of pravastatin sodium tablets, which treat high cholesterol

July 31, 2024: Recall of indomethacin extended-release capsules, which treat rheumatoid arthritis

Since the May recall, Glenmark told regulators it has received reports of three deaths, three hospitalizations and four other serious problems in patients who took the recalled potassium chloride capsules, FDA records show. It’s unclear if the drug was the cause.

A federal lawsuit alleges that the pills were responsible for the death of Mary Louise Cormier, a 91-year-old woman in Maine. A letter informing her of the recall arrived three weeks after she died.

The FDA’s anemic response underscores longstanding weaknesses in the way the agency oversees the safety of generic medications manufactured in foreign factories. The agency failed to act on clear patterns of trouble, was slow to warn the public about the potentially deadly pills and never mentioned that millions of them had been sold to consumers.

From the day of the first recall in October 2023 through the next 12 months, the FDA oversaw 22 recalls for drugs that didn’t dissolve correctly and could cause harm, agency data shows. That single Glenmark factory was responsible for more than 30%, a ProPublica analysis found.

“The FDA is always late to respond,” Stone said. “This should have been dealt with immediately.”

The FDA has long said it polices foreign plants by prioritizing inspections based on risk. For routine inspections, the agency uses a computer model that weighs prior recalls, the date and results of the most recent inspection, and other factors. FDA employees decide when to send investigators for more urgent visits based on signs that something is amiss. But the agency would not explain why Glenmark’s string of recalls didn’t meet that threshold.

What’s more, federal regulators were aware of significant deficiencies at three of Glenmark’s four other factories that have made drugs for the U.S. market, FDA records show. The breakdowns were so grave at one plant that the FDA barred drugs made there from entering the country.

The FDA’s failings date back decades. In her book “Bottle of Lies,” journalist Katherine Eban exposed the agency’s struggles to identify and combat corruption in the global pharmaceutical industry amid a huge demand for cheap generic drugs in the U.S. The book detailed how a whistleblower in 2005 started feeding the FDA insider details about unsafe medications at a different Indian drugmaker, but it took federal officials almost nine years to wrap up a criminal case.

The majority of the factories making drugs for U.S. patients are in other countries, many of which churn out the generics that make up more than 90% of prescriptions filled here. Yet the investigative arm of Congress has repeatedly found that the FDA has too few inspectors to adequately oversee these plants.

The consequences of lax oversight were unmistakable when the U.S. Centers for Disease Control and Prevention reported in 2023 that four people died and others had to have their eyeballs removed after they used contaminated eyedrops made by a different Indian company. The FDA had never inspected that factory before people got sick.

Fed up with what they called “institutional weaknesses and dysfunction” in the oversight of foreign drugmakers, the House Committee on Energy and Commerce in June demanded that the head of the FDA turn over documents about inspections in India and China.

A spokesperson for the FDA declined to answer questions about the Glenmark recalls or inspection history, saying the agency could not publicly discuss potential or ongoing compliance matters. “When there are quality issues identified that could result in harm, patients should rest assured that the FDA does everything within our authority to work with firms to ensure a recall is conducted most effectively,” FDA spokesperson Amanda Hils wrote in an email. A recent reorganization, she added, “will ultimately help the agency be more efficient and cohesive in our inspection and investigation efforts.”

Officials with Glenmark also declined to answer detailed questions. In a court document, the company denied being responsible for the death of Cormier, the woman in Maine.

“Due to the ongoing litigation, we are unable to provide further information at this time but Glenmark is fully committed to maintaining the highest standards of quality and regulatory compliance in all our operations,” a Glenmark spokesperson wrote in an email. “We continue to work closely with the FDA to ensure compliance with manufacturing operations and quality systems.”

Overseas compliance with U.S. manufacturing standards is crucial in a drug market where foreign factories like the ones operated by Glenmark make a wide range of injections and pills that treat some of the most vulnerable patients in the U.S., including those with cancer, heart disease, epilepsy and kidney ailments. What happens in a factory a half a world away can have deadly consequences.

Glenmark’s major troubles with the FDA began in 2019 at a factory far from the one that made the potassium chloride.

That spring, FDA investigators went to the company’s Himachal Pradesh plant in northern India and reviewed more than 100 complaints about products made there: A steroid cream was gritty, a medication was watery, and tubes of medicines were cracked and punctured.

The inspectors found so many problems at the facility that the agency sent Glenmark what’s known as a warning letter, a disciplinary tool the FDA uses to lay out significant violations of federal requirements and demand changes. Too often, Glenmark didn’t identify the root causes of problems and failed to come up with plans to prevent the same defects in the future, the director of the FDA’s Office of Manufacturing Quality wrote to Glenmark’s chairman.

“Your quality system for investigations is inadequate and does not ensure consistent production of safe and effective products,” the FDA official wrote.

This became a recurrent theme for Glenmark in subsequent years as FDA investigators dinged one plant after another for failing to follow manufacturing processes that prevent defective drugs from winding up in American medicine cabinets.

FDA records show the problems stretched from India to the U.S., where Glenmark has a factory outside of Charlotte, North Carolina. In August 2021, Glenmark recalled every product it made at that plant. The recall notices said they failed to meet manufacturing standards.

In the spring of 2022, FDA investigators spent more than a month in that factory, documenting 17 violations that resulted in a warning letter for that plant as well.

The problems snowballed in the fall of 2022. The FDA sent Glenmark’s chairman yet another warning letter, this time about its factory in Goa, India, which the agency said failed to thoroughly investigate discrepancies among batches of drugs and lacked the procedures necessary to ensure that its products had the strength, quality and purity that Glenmark claimed. And FDA officials were so concerned after a subsequent inspection of Glenmark’s Himachal Pradesh factory that they placed it on the agency’s dreaded import alert list, which allowed federal regulators to prevent drugs made there from entering the U.S.

At that point, three of the five Glenmark factories that had made drugs for American consumers were in trouble with the FDA.

Get in Touch

Do you work at the FDA? Do you have information about generic drugs that we should know? We’re particularly interested in decisions made by the Center for Drug Evaluation and Research about drug shortages, foreign or U.S. manufacturing, and regulatory actions, such as warning letters and import alerts. What aren’t officials telling Americans about their drug supply? Email Megan Rose at megan@propublica.org or Debbie Cenziper at debbie.cenziper@propublica.org. If you prefer to reach out confidentially on Signal, Megan can be contacted at 202-805-4865, Debbie can be contacted at 301-222-3133, or get in touch with both reporters at 202-886-9594.

But one plant has escaped scrutiny in the last few years: the Glenmark facility that made the recalled potassium chloride.

The factory, in Madhya Pradesh, India, previously had a mixed record with the FDA. The agency had sent inspectors every year between 2015 and 2020, finding problems in half the visits.

In 2018, the FDA asked Glenmark to voluntarily make improvements after inspectors found evidence that drafts of internal investigations were shredded in the quality department, among other deficiencies.

Subsequent inspections in September 2019 and February 2020, though, went well.

Then the COVID-19 pandemic hit, and the FDA put all but the most urgent inspections on hold. An Associated Press analysis this September found that about 2,000 pharmaceutical plants had not been inspected by the FDA in five years.

The FDA doesn’t have enough experienced investigators to figure out what’s wrong at factories where there are signs of trouble, said Peter Baker, a former FDA inspector who consults on pharmaceutical quality.

“It’s really difficult to be proactive when you don’t have people,” Baker said.

People familiar with FDA enforcement say inspectors are often frustrated because they have little say on which facilities they inspect. That decision is made by another arm of the agency that doesn’t have the same sort of on-the-ground view of what’s going on in factories.

Those who have the most to lose — the patients who could be endangered by defective pills — rarely, if ever, learn about the conditions inside the manufacturing plants. The FDA doesn’t make it easy for people to know where a drug is made, let alone whether it was by a factory with a concerning safety record.

To determine that the recalled Glenmark drugs were all made at the Madhya Pradesh factory, ProPublica matched drug-labeling records from the U.S. National Library of Medicine with details in two FDA databases. Because the FDA doesn’t routinely post its inspection reports online, ProPublica obtained these and other records from Redica Systems, a data analytics company that receives this information from the FDA through public-records requests.

The first in the string of recalls from the plant came in October 2023 for a drug that treats iron overload from blood transfusions. Days later, the company announced a second recall, this time for a medication for chest pain. Then came two more for capsules that treat high blood pressure. The potassium chloride recall was Glenmark’s fifth. Two more came after that, for a cholesterol-lowering drug and a rheumatoid arthritis medicine.

The only one mentioned on the FDA’s recalls website was the potassium chloride. In that case, the agency followed its practice of posting a press release from the drug company rather than writing its own alert for the public.

“Public notification is generally issued when a product poses a serious health hazard or has been widely distributed,” the FDA spokesperson wrote in an email.

Records show the agency determined that potential harm from taking the other pills Glenmark recalled was likely to be temporary or reversible. But it never told the public what that harm might be.

Mary Louise Cormier never knew her potassium chloride pills had been recalled.

On June 27, the 91-year-old was taken to the emergency room from her nursing home in Brunswick, Maine. She was lethargic and could give only soft, monosyllabic answers to questions, according to the lawsuit filed by one of her daughters.

A blood test showed that her potassium level was alarmingly high — so high that an emergency room doctor had the lab run the test a second time to make sure the result wasn’t a mistake, according to the lawsuit. A level above 6 millimoles per liter is considered a medical emergency. The tests showed Cormier’s level was 6.9, the lawsuit says.

Cormier — who had raised five children, cared for babies in the foster care system and once ran a day care out of her home — suffered cardiac arrest and died, the suit says.

The lawsuit, filed in federal court in Newark, New Jersey, accuses Glenmark of a “systematic disregard for drug safety” and alleges the company sold pills “more suitable for an execution” than for the vulnerable patients they were supposed to help. Cormier’s pharmacy confirmed that her pills came from recalled batches, the lawsuit says. The suit is seeking class-action status.

In a court filing, Glenmark denied the allegations. The company’s attorneys listed dozens of defenses, including that the injuries claimed were the result of preexisting or unrelated medical conditions and that the product contained an adequate warning. There can be other reasons for a spike in potassium, and ProPublica was unable to independently verify key details in the suit. Cormier’s daughter referred a reporter to her attorney, Aaron Block, who declined to release Cormier’s medical records, citing the early stage of the litigation.

It’s not clear when Cormier’s pharmacy first learned the pills could be dangerous, but news of recalls can often take time to reach pharmacists — and longer to get to patients. The suit says Cormier’s pharmacy dispensed the pills on June 25. That was the day the FDA posted the recall on its website and three days before Cormier died. Medicines in the U.S. often pass through distributors. The manufacturer is responsible for notifying its distributors, who then have to notify their customers and so on down the supply chain.

News of the recall didn’t reach Cormier’s family until three weeks after her death. As her family was preparing for her memorial, a letter arrived. Cormier’s health insurance company was writing with “important drug recall information” about her potassium chloride: “Our records show that you may have recently filled a prescription for this product.” The letter made it clear that the pills may cause high potassium levels, potentially leading to cardiac arrest and death.

Glenmark knew there was a problem with its potassium chloride at least a month before Cormier died.

On May 29, a Glenmark executive wrote a letter to distributors saying a batch of potassium chloride had failed to dissolve correctly in a test, so the company was issuing a recall. The executive told the distributors that the recall was “being made with the knowledge of the Food and Drug Administration” and used red capital letters to mark the notice “URGENT.” The letter was sent via FedEx overnight. But the company and the FDA didn’t tell the public at the time.

In late June, Glenmark recalled dozens more batches, including the pills that the lawsuit says Cormier took.

On June 25, about four weeks after the Glenmark executive had written to distributors, the FDA finally alerted the public.

Glenmark and the FDA declined to say why the initial recall in May didn’t include all of the faulty pills or why they didn’t tell the public sooner. Speaking generally, Hils, the FDA spokesperson, said that the agency does not have the authority to mandate recalls of most drugs, with a limited exception for controlled substances. The agency’s role, she said, is “to oversee a company’s recall strategy, assess the adequacy of the company’s action, and classify the recall.”

Since then, Glenmark has told the FDA about reports it received of the deaths, hospitalizations and other serious health problems in patients who took the recalled potassium chloride. Companies are required to file reports to the FDA’s Adverse Event Reporting System so the agency can monitor the safety of drugs. The FDA’s online database includes only bare-bones details, so ProPublica was unable to independently verify what happened in each case. While the FDA would not comment on these complaints, the agency generally warns, “For any given report, there is no certainty that a suspected drug caused the reaction.”

A majority of the reports said the patients suffered from abnormal heart rhythms, while the second-most-common complaint was of muscle problems. Glenmark’s public alert said that the recalled pills could cause irregular heartbeats and severe muscle weakness.

Glenmark’s top executives have told financial analysts on earnings calls that the company has invested in improvements to its factories.

The company’s troubles with U.S. regulators are so well known to investors that its compliance officer notified the National Stock Exchange of India in September that FDA inspectors had found no problems at one of its other factories in India. As the news spread, Glenmark’s stock jumped 9%.

by Patricia Callahan, Debbie Cenziper and Megan Rose

Maine Public Housing Tenants Face Eviction at High Rates. A New Program to Keep Renters Housed Excludes Them.

5 months 3 weeks ago

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

Public housing helped bring an end to Linda Gallagher-Garcia’s three years of intermittent homelessness in her hometown of Presque Isle, Maine, in 2020. With $200 in secondhand furniture, she made the apartment feel like home for her and her dog, Tex.

But when she fell behind on her rent and was evicted two years later, the fact that she was in public housing made her future more dire: Maine public housing authorities’ rules bar evicted tenants from returning to government-subsidized units and from receiving other benefits that could help them relocate.

Gallagher-Garcia had moved back to her hometown in northern Maine in 2017 after her husband died. She was working as a home health aide and struggled to earn enough to afford a place to live; then, when she got COVID-19 and had to take time off from her job, she fell behind on her rent. The Presque Isle Housing Authority evicted her in 2022. “I was sick,” she said. “It didn’t matter to them.” Citing confidentiality rules, the housing authority said it could not comment on her case.

Last spring, Maine lawmakers had a chance to help public housing tenants at risk of losing their homes when they created a fund to prevent evictions. But instead of doing what nearby Massachusetts and Connecticut did, and making public housing tenants eligible for the program, Maine did the opposite and specifically excluded them. That left public housing residents — who are more likely than others to become homeless after eviction — ineligible for the aid.

Those who crafted the law said they didn’t realize people in public housing might need such help. Gallagher-Garcia’s story shows why they do.

She owed just $955 in back rent and utilities when she got her eviction notice — an amount the new eviction prevention program could have covered if it had been in place and if she had been living in a privately owned apartment. Instead, at age 59, Gallagher-Garcia checked into the local emergency shelter where she stayed for two years. In total, state and federal dollars paid about $55,000 for her to stay there.

Gallagher-Garcia outside her old apartment at the Presque Isle Housing Authority’s elderly and disabled section. She lived there for two years before being evicted in 2022. (Linda Coan O’Kresik/Bangor Daily News)

Maine’s pilot eviction prevention program, called the Stable Home Fund, opened to applications in October. It provides eligible households with up to $800 a month for up to one year, with additional funds available to cover back rent.

The creators of the Stable Home Fund thought that public housing tenants already had enough aid. Public housing, which is funded with federal dollars, is supposed to be affordable for low-income families, the elderly and people with disabilities, with rent typically capped at 30% of household income. Public housing tenants, however, can still struggle to afford rent and be evicted just like tenants in private apartments.

In fact, in 2023, Maine’s public housing authorities filed a disproportionately high share of eviction cases, according to an analysis of court data obtained by the Bangor Daily News and ProPublica. The eviction filing rate for public housing authorities was more than twice as high as the rate for all rental housing: 10 eviction filings per 100 units for public housing compared with four filings per 100 units for all rental housing.

The cause of most public housing eviction filings in Maine was nonpayment of rent, based on a separate review of court data collected by Pine Tree Legal Assistance, Maine’s largest legal aid group.

Because of public housing rules forbidding tenants from returning after an eviction, and because public housing tenants are generally poorer than other renters, both publicly and privately owned properties become out of reach. (By contrast, people who have been evicted from privately owned housing are still eligible to live in public housing.)

As a result, the consequence of being evicted from public housing “is almost certainly homelessness and extreme housing instability for already vulnerable families,” said Marie Claire Tran-Leung, director of the National Housing Law Project’s evictions initiative.

That homelessness comes with a financial cost to state and local governments. A 2009 Maine study found that governments spent about one-and-a-half times more in services for a homeless person in the six months before they were placed in subsidized housing and given supportive services than in the six months after.

Aroostook County in Maine. Three-quarters of the state’s 2023 low-income eviction cases were in its rural 2nd Congressional District, which includes Presque Isle. (Linda Coan O’Kresik/Bangor Daily News) Public Housing Gets Excluded

Little is known about evictions in Maine, in part because the state’s paper-based court system makes it hard to obtain data. In 2023, Pine Tree Legal, a nonprofit that provides civil legal services to people with low incomes, spent a year traveling around the state to review eviction filings to understand why landlords try to remove tenants, how often renters don’t show up in court and how frequently they have representation. The Bangor Daily News and ProPublica analyzed the data, which covered about 40% of cases filed between 2019 and 2022. The newsrooms also obtained further data from the state court system on every eviction case filed by a public housing authority from January 2019 through August 2024.

Taken together, the data provides a window into a little-noticed aspect of Maine’s housing crisis. Since 2019, public housing authorities, which had a combined total of 3,299 units last year, went to court to evict low-income tenants about 1,300 times.

In 2023, their cases made up 5% of all eviction filings, despite the authorities having just 2% of the state’s rental units. Of the public housing cases, three-quarters were in the rural 2nd Congressional District, which covers most of the state outside the populous southern coastal region and includes Gallagher-Garcia’s hometown of Presque Isle.

The Presque Isle Housing Authority, where she lived, is in the geographically largest county east of the Mississippi River and has a population of just 67,000 residents. The housing authority filed nearly one eviction suit for every five of its public housing units in 2023, the highest rate of any housing authority in Maine, the Bangor Daily News and ProPublica found. The vast majority of cases in Presque Isle were for nonpayment of rent.

The housing authority said that a small minority of its cases resulted in actual eviction orders. (The state of Maine, however, does not track the number of people who leave after being threatened with eviction but before their cases are completed.)

The housing authority’s executive director, Jennifer Sweetser, explained that evictions are necessary because the agency’s budget relies on consistent rental payments. She also said that the housing authority doesn’t grant individual exceptions to eviction, which could be unfair or discriminatory. Instead, she said, the eviction process gives tenants a “neutral” way to resolve issues.

Farther south in the 2nd Congressional District, the Bangor housing authority filed more than twice as many eviction cases as the housing authority in Maine’s biggest city, Portland, located in the state’s other congressional district, even though Portland has many more public housing units.

This issue isn’t unique to Maine. Eviction Lab, a research organization based at Princeton University, has found that some public housing authorities around the country use evictions as a rent collection tactic, sometimes at higher rates than private landlords.

Victoria Morales runs the Quality Housing Coalition, based in Portland, and was the architect of the eviction prevention program that launched this year. She said she didn’t know how often Maine public housing tenants faced eviction until the Bangor Daily News and ProPublica shared their findings, as her organization doesn’t usually work with people in public housing. “I think it is hard to see that this exists if you’re not in it,” Morales said.

Morales excluded tenants in public housing from the fund because she said their rent is already supposed to be affordable. The goal was to help people facing eviction who were not already receiving some type of aid, she said. (In the end, however, the program allowed renters to apply who were receiving other types of housing assistance — just not those living in public housing or who had a federal Section 8 voucher.)

The program’s cost to the state was also a factor in limiting who was eligible, said state Rep. Rebecca Millett, D-Cape Elizabeth, who sponsored the legislation that spurred the fund. “We had to get it through the appropriation process when we were competing with all the other really important needs that our state is facing,” Millett said. Although Millett’s 2023 bill didn’t pass, a year later lawmakers decided to create and fund the rent relief program with $18 million through the supplemental budget process.

MaineHousing, a quasi-state agency that awarded a contract to Morales’ organization to run the program, estimated that 1,000 households could benefit over two years. In the first month, the program received 1,400 applications and had to start putting people on a waiting list.

Even with the high demand, two national housing experts said the Stable Home Fund could help more people if tenants of public housing could participate. That’s because monthly rent in public housing is much lower than on the private market.

Those experts said they don’t know of another eviction prevention program that excludes people in public housing. Kevin Connor, a spokesperson for the agency that runs Massachusetts’ program, said it is open to any household because the state wants to prevent homelessness, “whether they are in a house they own, an apartment they rent or a subsidized unit.”

Morales did not say whether she planned to advocate for public housing tenants to be included in the program in the future, but she said she would support the change if the state decided it was a priority.

Millett said she’d like to see the program expanded to help every Mainer who needs assistance, including people in public housing. But she will not be around when lawmakers convene in January; after 12 years in the Legislature, she didn’t run for reelection. Without Millett, and with no guarantee of future funding, the program’s longevity remains an open question.

After her eviction, Gallagher-Garcia was forced to move back into a shelter. (Linda Coan O’Kresik/Bangor Daily News) Evicted From Public Housing

Public housing delivered Gallagher-Garcia from homelessness. But being evicted from public housing pitched her right back into it.

One cool day in April 2022, her nieces and nephews helped her empty out her apartment, throwing her furniture into a dumpster. “Basically, I didn’t have anything,” she said, in the same matter-of-fact way that she described many of the other challenges she’s faced, including battling cancer. When she checked into the shelter, it ended her longest period of housing stability since 2017.

She couldn’t move in with her sister, Nancy Gallagher, who also lives in the housing authority, because the authority bars people who have been evicted from staying with other residents. She had to stay near Presque Isle because that’s where her job was. So Gallagher-Garcia went to the shelter. “I just didn’t have time to find anywhere else to go,” she said.

Gallagher-Garcia spends an afternoon at the apartment of her sister, Nancy Gallagher, in the Presque Isle Housing Authority. (Linda Coan O’Kresik/Bangor Daily News)

Her dog, Tex, went to the kennel in Caribou, the next town up the road. Under the shelter’s rules, Gallagher-Garcia had to leave her metal crochet needles behind at her sister’s apartment because they could be used as weapons. She also was required to leave the shelter every morning; when she didn’t have to go to work or see a doctor, she spent the day in her sister’s living room calling around for apartments.

In her second year at the shelter, in 2023, her health started to decline — first a hernia, then ovarian cancer. With that diagnosis came more tests, surgeries and chemotherapy. “January, February, March, three months behind each other, not even giving my body time to heal or anything, one surgery after another,” she said. She made frequent trips to see specialists as far away as Portland, four and a half hours away.

Living in a room at the shelter with three to four women, she had little privacy when nurses came to check on her surgical wounds. When other residents started asking what was going on, she decided to tell them. “I didn’t sugarcoat it,” she said about her discussion with a boy in the shelter. “I said, you know, I could go to sleep and not wake up.”

In July 2023, she returned to work part time despite continued chemotherapy treatments, so she could save up enough to leave the shelter. She didn’t like sitting around, she said: “I wanted to go back to work and have something to do for myself.”

Finally, in June, after two years in the shelter, she moved into a motel. She was glad to have a quiet place to stay, and she got her dog back after paying a fee. But it cost $1,000 a month, twice as much as her apartment at the public housing complex. After about nine months, she fell behind on her rent, and the motel kicked her out, too, she said.

As of early December, Gallagher-Garcia was still at the local homeless shelter, looking for a place of her own. Every week, she said, she called landlords, looking for someone to accept her despite her financial struggles and prior evictions.

Then, she found something: a hotel room for $1,200 a month. That’s more than the last place, which she couldn’t afford. But she just turned 62, and now she can draw Social Security. Between that and her job, she hopes she can make it work.

This story was supported in part by a grant from the Fund for Investigative Journalism.

Bangor Daily News reporter Sawyer Loftus may be reached at sloftus@bangordailynews.com.

by Sawyer Loftus, Bangor Daily News

How a Decades-Old Loophole Lets Billionaires Avoid Medicare Taxes

5 months 3 weeks ago

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For most working Americans, paying their share of the taxes that fund Medicare is an unavoidable fact of life. It’s so automatic for many workers that they may not even realize it takes a bite out of every paycheck. In theory, everyone is required to contribute to the country’s health insurance program for seniors, no matter how poor or rich, from cashiers to CEOs.

Not on Wall Street. There, some of the most powerful people in finance found a way to opt out.

The trove of tax records behind ProPublica’s “Secret IRS Files” series contains plenty of examples of billionaire financiers who avoided Medicare tax despite earning huge amounts from their companies. In 2016, Steve Cohen, the owner of the New York Mets, paid $0. So did Stephen Schwarzman, head of the investment behemoth Blackstone. Bill Ackman, the headline-grabbing hedge fund manager, was able to shield almost all his income from the tax.

How do they do it? Business owners, like any self-employed person, whether they’re a freelance Uber driver or a hedge fund manager, have the responsibility to declare their self-employment earnings on their tax returns. Indeed, the vast majority of small-business owners have no choice but to do so and pay the same taxes that wage earners pay, including Medicare.

But high-priced tax advisers, wielding a once-obscure bit of the tax code, found a way to make that obligation vanish. By carefully channeling profits through a company in a way that invokes that obscure provision, even a Steve Cohen, with a tax return showing he received hundreds of millions in profits from his hedge fund, can exempt that income from Medicare tax.

The three billionaires contacted for this article said they followed the law as written. They also pointed to the fact that they paid substantial income tax, which for them carries a much higher rate. Medicare tax is 2.9% for most people and 3.8% for high earners.

But these maneuvers by the rich hasten Medicare’s future crisis. Sometime in the 2030s, the program’s trust fund is due to run dry. Closing the loophole, along with eliminating other ways around the tax for wealthy business owners, could raise more than $250 billion over 10 years for Medicare, according to recent government estimates.

Over the past three years, ProPublica has mined the tax records of the rich to detail the many ways they avoid taxes. We’ve focused on basic structural features of the U.S. system that advantage them. We’ve uncovered maneuvers of questionable legality that seem to have escaped the notice of the IRS. The Medicare tax loophole occupies a gray area. The IRS definitely knows about it, but it’s unclear if the agency will be able to stop it.

The potential of the loophole first surfaced in the 1990s, and the IRS soon expressed the view that active business owners shouldn’t be allowed to exploit it. It was only in recent years, however, that the agency got tough. Today, the IRS continues to battle what it considers a serious abuse, waging a rare, long-shot campaign to prevent some of the nation’s wealthiest citizens from using the loophole.

The story of how America’s richest financiers avoid paying Medicare tax gives unique insight into the peculiar, messy way taxes work in the U.S. No one set out to create the loophole when it first entered the tax code in 1977. But a series of seemingly unrelated policy changes, together with a revolution in how American businesses are structured, conspired to deliver a major tax advantage to the wealthy. On Capitol Hill, interest groups have successfully defended that advantage, branding any effort to close the loophole as a tax hike on Main Street businesses.

Approaching its 50th birthday, the loophole, for now, lives on.

Fixing One Problem, Creating Another

Over the 2010s, years of budget cuts sliced deep into the IRS’ enforcement muscle. Audits, especially those of the wealthy and corporations, plummeted. In response, agency leaders decided to conduct a kind of triage and focus the IRS’ dwindling might on the most pressing and addressable problems. Among the agency’s early priorities was to curb the widespread use of the Medicare tax loophole.

Beginning in 2018, the agency began hunting for business owners who, in its view, were abusing the law. It launched over 80 audits aimed at hedge funds, private equity firms, consultancies and similar businesses. Cohen’s firm was just the sort of thing the agency was looking for.

Before Cohen became popular as the approachable, gap-toothed, sweater-wearing Mets-fan-in-chief, he was a controversial figure on Wall Street, the inspiration for the legal-risk-taking hedge fund lead character in the Showtime series “Billions.” Cohen made his fortune through his original hedge fund, SAC Capital, known for rapid-fire trades with a remarkable track record. In 2013, SAC pleaded guilty to five criminal counts of securities and wire fraud, agreeing to pay $1.8 billion in penalties and effectively shut itself down. Cohen was not personally charged. Turning the page, he soon formed a new hedge fund, Point72.

The IRS’ audit of Point72 focused on one thing: how the profits had flowed to Cohen. In 2015, his firm earned $125 million from clients, and the money was routed to him through Point72 Asset Management LP.

Those last two letters, which stand for limited partnership, were Cohen’s key to accessing the loophole.

For most of the last century, before hedge funds and private equity firms dominated Wall Street, limited partnerships played a very specific role. They allowed investors, as limited partners, to buy into a business — often oil drilling or real estate development — without the usual risks of ownership like being pursued for the business’s debts.

But by the 1970s, creative uses of limited partnerships proliferated. One variety caught Congress’ attention. Government employees were covered by public pensions and thus were not eligible for Social Security, but brokerages were pitching these employees on limited partnerships as a way around that. The government workers could buy a small share of a business and receive self-employment income that qualified them for future Social Security benefits.

The scheme was condemned by both parties. After all, Social Security was meant to reward people’s labor, not their investments. Only income earned by someone actively running a business should count toward Social Security.

The solution, Congress decided, was to exclude most income earned by limited partners. It wouldn’t count toward self-employment income and, as a result, wouldn’t be subject to self-employment tax, which goes to Social Security and Medicare. As part of a major 1977 Social Security reform bill, this soon became the law.

It seemed like an easy fix. At the time, limited partners were, as a rule, passive investors. The line between the two types of partners that made up a limited partnership was real: General partners ran the business, and limited partners didn’t.

“Limited partners were historically forbidden under state law from getting too involved in the business,” said Susan Hamill, professor of law at the University of Alabama. “If they got involved at all, they would simply be treated as general partners, and the liability shield would be stripped away from them.”

Lawmakers assumed things would continue as they’d always been. They didn’t. The 1977 law, it turned out, had passed at the dawn of a new age, one where limited liability became standard for business owners, not a special condition with strings attached.

A new business structure, the limited liability company, exploded in popularity in the ’90s. LLCs limited the legal liability of all owners regardless of their role. Limited partnerships morphed into something that functioned similarly. After the change, the fact that someone was a limited partner said nothing about what they did for the business. They could be the CEO or a passive investor. It became common for owners to serve as both limited and general partners.

In this new world, the 1977 law was no longer a narrow exclusion. It was a broad grant of tax avoidance to anyone with a canny tax adviser.

Point72 Asset Management LP was part of the trend.

To take advantage of the loophole, Cohen needed to channel his firm’s profits through a limited partner before the money reached him.

One obstacle, it might seem, was that Cohen was one person. How could he partner with himself? That part was simple. A partnership requires at least two partners, but they can be companies or people. Cohen created two business entities, each wholly owned by him. One became the limited partner, the other the general partner.

Over 2015 and 2016, Point72 Asset Management earned $344 million in profits; 99.98% of that went to the limited partner and was declared exempt from Medicare tax. While those profits were subject to the 40% income tax rate (as much as $136 million in tax), Cohen’s returns showed $0 in self-employment income both years, helping him avoid up to $11 million in Medicare tax.

The IRS audited those returns and determined that the full $344 million was self-employment income. Last year, Point72 challenged that finding in court in a case that continues to this day. A spokesperson for Cohen declined to comment, citing the ongoing litigation.

“A Nasty Little Tax Increase”

Almost as soon as LLCs began their rapid spread, IRS officials recognized the possibility of widespread avoidance of self-employment tax. The problem became more urgent after 1993. Since its beginning, Medicare tax had, like Social Security, been capped. But Congress, in need of more revenues to support Medicare, eliminated the cap. Suddenly, avoiding Medicare tax might save a business owner millions of dollars instead of, in 1993, under $4,000.

In 1997, the IRS proposed a rule that would dictate how the 1977 law should be interpreted. A limited partner would mean essentially what it had meant back in 1977, when the term described passive investors. People who worked more than 500 hours (about three months) annually for the business could not be a limited partner under Section 1402(a)(13), the loophole’s place in the tax code.

IRS rule proposals are usually soporific affairs closely watched only by tax practitioners. But in early April 1997, fax machines in Republican congressional offices spat out a message that ended this rule’s obscurity.

The IRS was about “to slip through a nasty little tax increase on America’s partnerships,” the memo read. It was from Steve Forbes, the millionaire magazine publisher and 1996 Republican presidential candidate. He’d centered his self-funded campaign around the idea of a “flat tax,” under which he promised “the IRS would be RIP.” Now he was rallying his party against what he called a “stealth tax increase.”

His message reached Rush Limbaugh, the conservative radio host, who was then at the height of his influence. Soon after Limbaugh mentioned Forbes’ faxed memo on his nationally syndicated show, Speaker of the House Newt Gingrich, a Georgia Republican, called in.

Congress would “intervene directly,” Gingrich promised. “And as you yourself pointed out earlier, we didn’t get elected to raise taxes. We got elected to lower taxes and simplify them and to end the IRS as we know it,” he said.

“Now, folks, that is fast action,” Limbaugh boasted.

A coalition of powerful trade groups hurriedly formed to pressure Congress to follow through on Gingrich’s vow. The rule change would raise taxes by more than $1 billion over the following decade, they estimated, and must be stopped.

The coalition represented businesses that were both small and decidedly not small (among the members were the U.S. Chamber of Commerce and the Securities Industry Association). But their message emphasized the rule’s impact on the “small business community.”

In fact, most small-business owners already paid Medicare and Social Security taxes. Then, as now, the most common form of small business was the simple sole proprietorship, taxspeak for a business with a single, human owner.

By July, the coalition had prevailed. A short provision of a major bill, the Taxpayer Relief Act of 1997, forbade the IRS from issuing any new rule “with respect to the definition of a limited partner” in the next year.

The IRS had been roundly rebuffed. It would be almost two decades before the agency would seriously consider trying again.

In the meantime, the options for business owners to skirt Medicare tax multiplied. New forms of partnerships arose, and the subchapter S corporation, which offered its own loophole around Medicare tax, emerged as an even more popular vehicle. The breadth of the tax avoidance meant that opposition to closing those loopholes would be even fiercer the next time there was a major threat.

“100% Political Fear”

In early 2010, President Barack Obama’s administration and a Democratic Congress were struggling to pass the Affordable Care Act when they hit on a way to help fund it. The proposal boiled down to an expansion of Medicare tax. Whereas before it had only applied to income from work, now, for high earners, it would extend to investment income like dividends and capital gains. The rate would also go from 2.9% to 3.8%.

But, while new forms of income would now be subject to the tax, the proposal intentionally left huge gaps. It wouldn’t touch the ability of business owners to use loopholes to avoid Medicare tax and would even limit their exposure to the new tax on investment income.

Why create a new, complicated tax that favored some forms of income over others, asked Jason Furman, then a member of Obama’s National Economic Council. In a meeting with Obama and his advisers, Furman advocated for a simple, uniform version of the tax that would also close the loophole, he said. The president agreed on the merits, Furman said. But arousing the opposition of the business lobby could endanger the whole bill. It wasn’t worth the risk. “It was 100% political fear,” Furman said.

A monumental health care reform effort like the ACA was already controversial, and members of Congress were looking to get it passed, said Robert Andrews, a former New Jersey Democratic representative and lead negotiator on the bill. They chose the funding option “with the least political risk,” he said.

“This was an ugly compromise, and I think we knew it was an ugly compromise and worth it for the greater good,” Furman said.

Pushing Around the Edges

As the years passed and no legislative fix came, the IRS vacillated on what to do about the limited partner loophole. The Treasury Department decides which tax regulations to pursue, and under the Bush and then the Obama administration, there wasn’t appetite for another bruising fight over a new rule. At the same time, IRS officials decided they couldn’t ignore what they viewed as widespread abuse of Section 1402(a)(13).

They decided on a middle path, said Curt Wilson, who in 2008 became the senior IRS attorney overseeing partnership issues. “We looked for places where we could push around the edges, so to speak,” he said.

This wasn’t a crusade. But in audits, when the opportunity presented itself, the agency cracked down on what it saw as abuse of the loophole. Agents focused on some of the newer forms of partnerships that had sprouted since 1977. LLCs were the prime target.

“We were looking at hedge funds, private equity firms, things like that where there were big dollars,” Wilson said. The goal was to make a splash with a precedent-setting case.

Landing that big case proved elusive. Instead of fighting it out in court, taxpayers were content to privately settle the audits with the IRS’ appeals division, Wilson said. The IRS did its best to send a message, releasing an advisory letter in 2014 to a hedge fund that said the fund’s LLC members didn’t qualify as limited partners. But that wasn’t a binding rule, and it fell short of a headline-grabbing court decision.

What’s more, the IRS risked playing Whac-A-Mole. Even if the agency succeeded in dissuading taxpayers from using the loophole with LLCs, business owners could simply register their business as a limited partnership instead. As the granddaddy of partnerships with limited liability, the LP, the original limited partnership, offered taxpayers the strongest claim for invoking the loophole.

ProPublica’s database of IRS data includes the tax returns of thousands of wealthy business owners through 2018. These titans of capitalism, despite huge flows of ordinary income, often reported remarkably little self-employment income in the 2010s. The LP appears to have been their favored variety of partnership.

In 2017, Bill Ackman earned $413 million in income through an LP operated by the hedge fund he manages, Pershing Square, famous for taking activist stances in companies. As was typical in other years, Ackman reported self-employment income of $4.7 million, a small fraction of his total business earnings. The difference meant he paid $142,000 in self-employment tax instead of more than $13 million.

In a statement, a spokesperson said: “Mr. Ackman has followed the advice of his tax advisors whose interpretation of the law has been the industry standard since 1977. Should the law change, Mr. Ackman will of course adjust his tax payments accordingly.”

In 2018, at least $143 million flowed via a Blackstone LP to Stephen Schwarzman, the firm’s CEO. As in years past, he exempted the income from Medicare tax. Schwarzman, who sits atop an investment firm with over $1 trillion in assets, reported no self-employment income at all in five of the seven years between 2012 and 2018.

“Mr. Schwarzman is one of the largest individual taxpayers in the country and fully complies with all tax rules,” a spokesperson said.

Attacking Head-On

The IRS’ announcement of its audit campaign in 2018 meant the agency would stop pushing around the edges and unleash a frontal assault: Its audits would target not just the newer form of partnerships but also LPs.

This time, after years of audits and appeals within the IRS, the agency finally got its splashy court case. Many taxpayers chose to settle, but Cohen’s partnership and at least five others took their cases to tax court, the first in 2022. All argued they were following the law.

Soroban Capital, a hedge fund, was audited after converting to an LP from an LLC. Demonstrating the gulf between owners and employees, Soroban’s three partners collected $142 million in income over the two years of the audit, while paying a total of $74 million in salaries and wages (subject to Medicare tax) to the fund’s staff.

Soroban’s founder, Eric Mandelblatt, was once an employee. His compensation from Goldman Sachs cost him $128,000 in Medicare tax one year, according to ProPublica’s IRS database. After he started his own hedge fund and began earning tens of millions more, his Medicare tax bill never exceeded a third of that, the records show. Soroban did not respond to requests for comment.

In 2023, the IRS won a major tax court decision against Soroban. The “limited partner exception of I.R.C. § 1402(a)(13) does not apply to a partner who is limited in name only,” the court said, because Congress had only intended to “exclude earnings from a mere investment.” A “functional analysis,” the court said, was needed to determine whether a partner was really “limited.”

With the Soroban decision, the loophole entered a new stage in its history. It’s the most serious challenge since 1997 when, protected by Congress, the loophole emerged not only unscathed but stronger. This time, it’s up to the federal judges who will be reviewing appeals of the tax court’s rulings in the IRS’ cases.

One of the audit targets, Sirius Solutions, a consultancy, has already sought a more sympathetic venue than the U.S. Tax Court. Last summer, it turned to the 5th U.S. Circuit Court of Appeals, known for its conservative bent. Industry groups representing the hedge fund and real estate industry have filed amicus briefs. Tax law experts told ProPublica they are skeptical the IRS’ position will ultimately prevail.

Still, amid this uncertainty, the Treasury Department and IRS last year announced plans to start work on a regulation for Section 1402(a)(13). It’s a process that could take years if it isn’t halted by the incoming administration. If a new rule is finally released, it might again face a hostile Congress. It would also be subject to challenge in the courts.

As has always been the case, the simplest solution is for Congress to change the law. Democrats will keep trying, said a former senior congressional aide, especially when they propose some new expensive initiative and need ways to pay for it.

Including a fix for the Medicare tax loopholes is “a beautiful pay-for,” he said. “It’s real money, and there are not a lot of options sitting around that are this obvious and relatively straightforward technically.”

The last attempt came a couple years ago, when Democrats needed to cover the cost of their $2.4 trillion climate bill. Build Back Better, as it was initially called, passed the House with a provision similar to Furman’s gap-plugging tax. The proposal was estimated to raise $252 billion over 10 years.

But the bill stalled in the Senate, where Democrats needed every vote. In the summer of 2022, negotiations suddenly approached consensus on a new, slimmer bill, soon dubbed the Inflation Reduction Act. The gap-plugging tax was part of the mix.

As they had 25 years before, business groups quickly rallied. Several dozen trade groups co-signed a letter to congressional leaders. The National Federation of Independent Business launched radio ads. “Now Congress is considering a brand-new tax on West Virginia small businesses, an additional tax wrongly characterized as the closing of a loophole,” ran one ad targeting Sen. Joe Manchin, one of the two key swing votes.

When a deal was finally announced on the bill, the proposal was gone. There had been other, less politically dangerous options to raise revenue.

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

by Paul Kiel

An Open Letter to Elon Musk

5 months 3 weeks ago

ProPublica is a nonprofit newsroom that investigates abuses of power. This story was originally published in our Dispatches newsletter; sign up to receive notes from our journalists.

Elon,

I know your relationship with ProPublica got off to a rocky start when we contacted you about a story we were writing about your federal taxes. You replied with a lone punctuation mark — “?” — and subsequently called the story that mentioned you “a bunch of misleading stuff.”

We can agree to disagree on that story and a lot of other things. But we thought it might be useful to reach out again in light of your role, along with Vivek Ramaswamy, as co-head of the Department of Government Efficiency.

Simply put: If you’re trying to identify wasteful practices and spending by federal agencies, you’ll find a wealth of actionable issues that our reporting has surfaced over the past 16 years. You and Vivek noted in your recent Wall Street Journal op-ed on your plans for DOGE that “the federal government’s procurement process is also badly broken.”

Our reporting over the years provides some powerful illustrations of that point. ProPublica’s work on the Navy’s cost overruns and design flaws in its ships is second to none. We recently disclosed how Microsoft boxed its competitors out of providing cybersecurity software to the biggest government agencies, including the Pentagon. (Microsoft defended its conduct, saying in a statement that its “sole goal during this period was to support an urgent request by the Administration to enhance the security posture of federal agencies who were continuously being targeted by sophisticated nation-state threat actors.”)

Perhaps the most immediate relevance of our journalism to your work arises from your reported interest in creating a phone app that most Americans could use to file their taxes.

No national news organization has been more focused on this subject than ProPublica. We have thoroughly documented why the United States is one of the only industrialized countries in the world that does not provide free filing to its citizens: Companies like Intuit that make billions of dollars selling tax preparation software have persuaded Congress to block free filing and keep their businesses alive.

I’d encourage you to take a look at the story “Inside TurboTax’s 20-Year Fight to Stop Americans From Filing Their Taxes for Free.”

You’re a busy person, so I’ll provide a TL;DR version: The tax prep industry has blocked free filing by organizing a bipartisan coalition on Capitol Hill that is anchored by House Republicans but includes Democrats like Zoe Lofgren, who represents Silicon Valley.

The industry also attracted support from longtime Republican figures like Grover Norquist, who has branded proponents of free filing as “big spenders in Washington, D.C.” who are trying to “socialize all tax preparation in America.”

As you know (or will soon learn if you pursue this agenda), despite decades of resistance, the IRS recently launched a pilot program for free filing. It works pretty well, but it’ll likely remain small scale unless something changes in the current Washington status quo.

That’s where you and Vivek have a historic opportunity.

What has always struck me about Washington is its ability to resist fundamental change. People arrive with big plans for reforms and often end up becoming part of the problem.

I began my career as a Washington reporter in 1983, two years after President Ronald Reagan took office promising to upend how business was done in the capital. Reagan was serious about coming up with some concrete ideas for saving money and reducing waste. He created a presidential commission of business executives and urged its members to work like “tireless bloodhounds.”

“Don’t leave any stone unturned in your search to root out inefficiency,” the president said.

Two years later, the commission delivered 47 volumes of reforms that it said could save $424 billion in government spending over three years. Most of the proposals required congressional action, a daunting task when the Senate was controlled by Republicans and the House by Democrats. In the end, only 27% of the recommendations were enacted. By the time Reagan’s term was over, government spending was up and the deficit had grown.

I believe Republican control of the presidency and both houses of Congress gives you and Vivek a better shot at taking on issues like free tax filing that have long been dismissed as lost causes. There’s a broad coalition of Americans who voted for Donald Trump, many of whom feel the government cares little about their problems. Politicians of both parties understand that their futures may depend on taking real, measurable steps to address those concerns.

Eliminating the annual ritual of paying money to a third party in order to tell the government what it already knows about your personal finances could be both popular and more efficient.

There has been a lot of skepticism about whether it’s possible to achieve your goal of cutting trillions of dollars from the federal budget. It appears to me that you could only rack up that level of savings by slashing everything from Medicare to military spending. I think the president’s political advisers will take the ax out of your hands before you hit the first trillion.

That’s not to say there isn’t an array of government programs that could be better run. We see our job as holding power to account, and the waste of the people’s money is one focal point of our reporting. That’s why we’ve written repeatedly about waste and fraud in Medicare and Medicaid, the government’s two biggest health care programs. (We’ve also covered the way cuts to those programs harm people.)

I have little doubt that we will write stories in the coming years that will enrage people you know. Some of our work may even focus on you or your companies. With immense power comes immense scrutiny. (As we did several years ago, we will always reach out to you for your response before we publish anything about you.)

Still, I would be disappointed if we did not also publish a piece or two that prompted you to storm into Vivek’s office and say: “Damn, this is outrageous. We could fix this.”

Best,

Steve Engelberg

by Stephen Engelberg

Donald Trump Controls a Publicly Traded Company. Now He Will Pick Its Regulator.

5 months 4 weeks ago

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

Last month a major shareholder of a publicly traded company took to social media to complain that people — perhaps short sellers — were spreading lies that could hurt his firm’s stock price.

“There are fake, untrue, and probably illegal rumors,” the post read. “I hereby request that the people who have set off these fake rumors or statements, and who may have done so in the past, be immediately investigated by the appropriate authorities.”

The Securities and Exchange Commission doesn’t typically take its marching orders from shareholders on social media. But in this case, the poster was Donald Trump, who’s just weeks away from being inaugurated and gaining the power to appoint the head of the SEC.

When Trump takes office in January, a president will for the first time be the majority owner of a publicly traded company, Trump Media, which runs Truth Social. Former SEC officials are concerned about how Trump could try to use the agency to go after the foes of his company, which accounts for more than half his fortune. They also worry that the agency isn’t up for the job of taking on Trump Media should it run afoul of securities laws.

Cases involving public companies with aggressive lawyers are difficult “even if you don’t have conflicts of interest and concerns about pissing someone important off,” a current employee in the SEC’s enforcement division said. “I don’t think anyone would explicitly say, ‘Don’t do it,’ but they’d just be like, ‘I could do another case.’”

In Trump Media’s short history, it has had a combative relationship with the SEC, though it has never been charged with wrongdoing by the agency.

In 2022 as Trump Media was seeking to go public, which it did through a merger with an already traded company, it threatened to sue the SEC because of what it called “inexcusable obstruction” and “obvious conflicts of interest among SEC officials and clear indications of political bias.” CEO Devin Nunes posted on the platform, “NO MORE BS!” The company never sued.

The following year, the company that took Trump Media public settled fraud charges with the SEC for $18 million after the agency found it made misrepresentations in its filings. The SEC also brought insider trading charges against several people who invested in the deal.

Other, previously unreported issues have raised alarms inside the company that Trump Media could be violating securities laws by misleading investors, according to a person with knowledge of the company.

The company has long reported in its disclosure filings that it does not track basic performance numbers for Truth Social.

In its securities filings, the company says it “does not currently, and may never, collect, monitor or report certain key operating metrics used by companies in similar industries,” such as the number of active users and ad views. It has always been a puzzling claim — akin to a TV network choosing not to track ratings. Other publicly traded social media companies do track and report such fundamental measures of success for their platforms.

But according to interviews and records reviewed by ProPublica, the company does track the numbers, and the active user count is a tiny fraction of its competitors’. ProPublica reviewed images of an internal Truth Social employee dashboard from 2022 showing the company monitored the number of active users. Internal communications from this year show the practice continued.

The SEC investigates those types of discrepancies, experts said. Securities laws prohibit companies from knowingly misleading investors about information deemed to be significant to the company’s share price.

In a statement, Trump Media accused ProPublica of “willfully misrepresenting TMTG’s public filings and the content of stolen information” and relying on “unreliable individuals with known axes to grind.” The statement also alleged ProPublica was “conspiring with others to engage in market manipulations and fraud, and we will bring evidence of this malfeasance to the relevant local, state, and federal officials.” The company did not respond to a request to explain what was “misrepresented.”

While current and former SEC officials doubt the SEC will aggressively regulate Trump Media, the company is relatively small. The agency’s oversight of companies owned by Trump associates will also be fraught and could have broader market implications. Elon Musk’s Tesla, for example, is more than one hundred times the size of Trump Media. Musk has for years fought bitterly with the SEC. He settled a securities fraud case with the agency and later declared that, “Something is broken with SEC oversight.” After Musk became one of Trump’s most important financial backers, Trump appointed him to lead a commission to target government spending it deems wasteful.

Securities experts warned that if the SEC fails to aggressively regulate companies connected to the president or his allies, it could have disastrous consequences.

“If political power buys the power to defraud, that’s a problem, not just for our politics but for our markets. American companies have an easier time getting capital because there is faith in the way the American capital markets are regulated,” said Howard Fischer, an SEC trial lawyer during Trump’s first term.

Created after the stock market crash of 1929, the SEC is part of the executive branch but operates independently of the White House. Presidents appoint the agency’s chair, who leads a five-member commission that includes members of both parties. The agency’s nearly 5,000 employees report to that commission as they do the work of regulating the securities industry.

“How much impact is the president supposed to have on the SEC's day-to-day operations? The answer is none,” said Allison Herren Lee, a former Democratic SEC commissioner appointed during the first Trump administration.

The line between the SEC and the president on enforcement actions has been crossed before. President Richard Nixon’s aides pressured the SEC’s general counsel, G. Bradford Cook, to remove a reference to a financier’s illegal contribution to the Nixon campaign from an SEC complaint against the executive. Nixon then installed Cook as the SEC’s chair. But after the meetings with Nixon’s aides were revealed, Cook resigned as chair, saying “the effectiveness of the agency might be impaired” because of the perception of undue influence.

If Trump tries to make enforcement demands of the SEC, as he did in his Truth Social post calling for an investigation of short sellers, SEC officials would face a choice: either ignore the president and risk his wrath, or follow his orders and undermine their independence. Former SEC officials interviewed by ProPublica predicted a middle path, in which the agency would not seriously investigate baseless claims against the company’s foes but would claim it was doing so to satisfy him.

The co-director of the SEC’s enforcement division during Trump’s first term told ProPublica he knew of no instances of Trump getting involved in enforcement decisions during his first term.

“We didn’t have issues of political interference,” said Steven Peikin, who is now in private practice. “We investigated some significant political figures.”

The Trump-era SEC investigated former Rep. Chris Collins, a Republican Trump ally from New York, who pleaded guilty to insider trading. Trump later pardoned him. The agency also investigated former Republican North Carolina Sen. Richard Burr for insider trading after the coronavirus stock market crash. (Burr said the case was ultimately dropped.)

Still, during his first term, Trump did not shy away from asking the SEC to consider specific regulatory changes. In 2018, for example, he tweeted that after speaking with “some of the world’s top business leaders,” he had asked the agency to consider allowing companies to stop filing quarterly reports and move to twice-a-year reporting.

“This was highly unusual,” Lee, the former SEC commissioner, told ProPublica.

Trump’s SEC chair at the time, Jay Clayton, said the agency was looking into “the frequency of reporting,” before rejecting the idea months later.

Though Clayton was generally popular among the SEC’s staff, his chumminess with Trump, including multiple rounds of golf together, did raise concerns about his independence.

In 2020, Clayton was asked during a House hearing if he ever discussed SEC matters with Trump during their golf outings. “There are no conversations that I’ve had that make me in any way — in any way — uncomfortable with my independence,” he testified.

While the SEC investigates possible civil violations of securities law, it is up to the FBI and Department of Justice to pursue criminal cases. Trump’s selections to lead both those agencies in his second term have ties to his social media company: Kash Patel, the FBI pick, is on the Trump Media board. Pam Bondi, selected to be attorney general, was identified in an April filing as owning a stake in the company worth more than $4 million at current prices. It’s not clear if she still owns the shares. (Bondi did not respond to a request seeking comment.)

If federal authorities shy away from scrutinizing Trump Media, securities experts said the void could be filled by state authorities, who Trump has no authority over.

“I wouldn’t be surprised if we saw blue state securities regulators opening investigations,” said Andrew Jennings, a law professor who teaches securities regulation at Emory University.

New York’s attorney general has already entered the fray. Letitia James’ office is examining an emergency loan provided to Trump Media before it went public from a trust connected to a bank in the Caribbean, according to records and a source with knowledge of the probe.

Last month, the Financial Times reported that Trump Media is in talks to buy a crypto trading venue called Bakkt. If that deal is consummated, it would be Trump’s second crypto venture following the September launch of a Trump-affiliated token by a company called World Liberty Financial.

Trump’s crypto investments create yet another area of potential conflict of interest with the SEC, whose current Democratic chair, Gary Gensler, led an enforcement campaign against the crypto market, which he described as rife with fraud and scams.

On Wednesday, Trump announced his nominee to chair the SEC: Paul Atkins, a Bush-era SEC commissioner who has spent the last seven years as co-chair of a crypto advocacy group.

Deregulating crypto was a theme of Trump’s campaign, with Trump telling a crypto conference over the summer: “The rules will be written by people who love your industry, not hate your industry.”

Do you have any information about Trump Media that we should know? Robert Faturechi can be reached by email at robert.faturechi@propublica.org and by Signal or WhatsApp at 213-271-7217. Justin Elliott can be reached by email at justin@propublica.org or by Signal or WhatsApp at 774-826-6240.

by Justin Elliott, Robert Faturechi and Alex Mierjeski

Sign Up to Screen Our New Documentary About Stillbirths

5 months 4 weeks ago

More than 20,000 pregnancies in the United States end in stillbirth each year. These losses are not inevitable. At least 1 in 4 U.S. stillbirths is likely preventable, according to a key study, and in pregnancies that last 37 weeks or more, nearly half of stillbirths may be preventable.

“Before a Breath,” a new feature documentary from ProPublica, weaves together the stories of three mothers who have lost children to stillbirth and are now striving to make pregnancy safer. Inspired by Duaa Eldeib’s groundbreaking reporting, which was a finalist for a Pulitzer Prize, this intimate, infuriating and ultimately hopeful film shines a light on the aftermath of stillbirth.

A Sneak Peek of “Before a Breath”

Other wealthy countries, including the Netherlands, Ireland and Australia, have made major strides in reducing their stillbirth rates. But a dearth of data, awareness, autopsies and research in the U.S. has hindered efforts at prevention.

“Before a Breath” breaks the silence around the U.S. stillbirth crisis and demonstrates that change is possible. We hope it will be a catalyst for critical conversations among expecting parents, medical providers, policymakers and bereaved families.

Starting in early 2025, we will roll out the film with screenings across the country. If you or someone you know wants to take part — by attending or hosting a screening, bringing the film to your college, medical school or hospital, or collaborating in other ways — we want to hear from you. We’re incredibly grateful to the many families, medical providers, researchers and advocates who have made our work possible. Now, we need your and your communities’ help to spread the word.

Please fill out the form and tell us how you would like to share the film. In the following weeks, we’ll respond with details on how to do so and a guide for planning your screening or event. In the meantime, you can head to ProPublica’s YouTube channel to check out sneak peeks of “Before a Breath” and meet Kanika Harris, Stephanie Lee and Debbie Haine Vijayvergiya.

We’ll be in touch.

(Sign Up to Screen Our New Documentary About Stillbirths)

by Nadia Sussman, Duaa Eldeib, Liz Moughon and Lisa Riordan Seville

How to Reduce Formaldehyde Exposure in Your Home

5 months 4 weeks ago

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

ProPublica spent months investigating how a single underregulated toxic chemical — formaldehyde — creates an inescapable cancer risk for everyone in America. It’s in the air outside, at levels that fail to meet the public health goals set by the Environmental Protection Agency. And it’s in our homes, coming from our couches, our clothes and our babies’ cribs — sometimes at levels that can trigger breathing problems, allergic reactions and asthma.

We modeled pollution data and deployed our own air monitors to measure formaldehyde levels around us. We interviewed more than 50 experts and read thousands of pages of scientific studies and EPA records. During it all, we kept in mind the single question we knew readers would most want answered: How can I reduce my exposure?

The following are some common sources of the chemical and suggestions for reducing your risk, as informed by our reporting.

Wood Furniture and Floors

Be careful when buying new furniture. One of the most significant sources of formaldehyde in the home has traditionally been furniture made with composite wood that uses glues to bind strands, particles, fibers or boards together. The adhesives used in this type of furniture can contain formaldehyde, which goes through a process called off-gassing, where the chemical is released into the air over time. Federal regulators have set limits on how much of the chemical some composite woods can release. But those limits, set more than a decade ago, are still well above the level that EPA scientists recently established to protect people from asthma, allergic reactions and other breathing problems.So, at the very least, you want to look at the item’s packaging for a label that shows it is compliant with the standards set under the Toxic Substances Control Act.

The law covers goods made of hardwood plywood, medium-density fiberboard and particleboard. All products covered by the law must feature some sort of label saying they comply with TSCA, though the labels can look different from product to product. Compliance does not mean the item is formaldehyde free. It means the company is certifying that any formaldehyde emissions are at a low enough concentration to meet TSCA’s requirements. Some types of composite woods aren’t covered by the law, and while those are used mainly for structural projects, they can also be used to make furniture and shelving. So if you are unsure what type of composite wood a piece of furniture is made from, make sure to ask a salesperson or company representative before you purchase.

Another label you can look for is the California Air Resources Board Phase 2. That, too, doesn’t mean the furniture or flooring is free of formaldehyde, but that it adheres to the state’s emission standards, which are similar to the TSCA rules. Some manufacturers include this on their labels for goods sold in and outside of California. Two other labels to look for are “no-added formaldehyde” (NAF) or “ultra-low-emitting formaldehyde” (ULEF). Those mean the manufacturer’s product has gone through additional testing.

If you do buy furniture you suspect contains formaldehyde, environmental experts suggest you allow the item to air out for as long as one full week in a highly ventilated area, such as a garage, however impractical that may be. If that isn’t possible, leave the windows open near the furniture to improve ventilation. It can take as long as two years for items to release most of their formaldehyde, so buying secondhand could be better for your health as well as your wallet. Purchasing solid wood furniture, while expensive, is the best alternative when trying to avoid high levels of formaldehyde.

Cosmetics and Personal Care

Inspect the ingredients in your personal care products. The European Union banned formaldehyde in cosmetics, but in the U.S., the Food and Drug Administration has yet to follow suit. Hair straighteners, particularly those marketed to Black women, have been found to contain formaldehyde. The chemical helps to form links with the amino acids in hair and, when heat is added, typically from a flat iron, the links are made stronger and the hair is straightened. But that heat can also turn formaldehyde into a gas and release it into the air.

When reading the ingredients labels, of course you should look for formaldehyde, but also watch out for formalin or methylene glycol, which are formaldehyde-related ingredients that release the chemical when heated. Those same three ingredients can also appear in nail care products. In nail hardeners, formaldehyde helps them bond to the keratin in nails. Also some nail polishes contain a toluenesulfonamide-formaldehyde resin that’s used to make the polish more resilient and adhere better to fingernails. That resin can release formaldehyde as it dries.

Candles, Indoor Fireplaces and Gas Stoves

Flames mean formaldehyde. The chemical is a byproduct of combustion, so anytime there is a fire, there is formaldehyde. This is as true for huge forest blazes as it is for lit candles or burning cigarettes. In the home, fireplaces and gas stoves can be a significant source of formaldehyde.

ProPublica reporters learned this firsthand earlier this year when they took formaldehyde readings at various places around New York and New Jersey. One of the highest concentrations was measured during a dinner party where candles were burned and a gas stove was operating. Multiple studies have also documented increased formaldehyde exposure when smoking cigarettes and vaping. Those who smoke can reduce indoor formaldehyde levels by doing it outdoors, but they will still be breathing in the chemical themselves.

As is true whenever formaldehyde is present, ventilation is crucial. If possible, open windows and doors when candles, fireplaces or stoves are used. Make a habit of turning on the stove vent when you cook. And while it’s expensive, if you’re able to, consider replacing your gas stove with an electric stove, which generally produces less formaldehyde. Naturally you might ask: Do air purifiers help? Researchers are still investigating how well air purifiers reduce formaldehyde. One study suggested that some air purifiers could even create formaldehyde as a by-product. Scented air fresheners can also introduce formaldehyde into the air.

Clothes

Sometimes formaldehyde is even in our clothes. Clothes that are designed to resist wrinkles or stains are more likely to contain the carcinogen. The chemical is used during the dyeing process and to help reduce shrinkage, mold growth and wrinkles. The use of formaldehyde in clothes can irritate skin conditions, such as eczema. But it’s often very difficult to tell whether clothing was made using the chemical. Labels generally won’t tell you. Clothes woven from natural fibers like linen, wool and cotton are less likely to have been made using formaldehyde than synthetic fabrics, like polyester. Washing all your new clothes before you wear them can help reduce your exposure. One recent study found formaldehyde in 20% of the cotton clothing researchers examined, but it was gone after the items had been washed.

Cars

Formaldehyde adhesives can be found in vehicle dashboards, seat coverings, flooring materials, carpeting, door trim, window sealant and armrests. And similar to furniture, the highest levels of formaldehyde are often found in new vehicles. To reduce your exposure to formaldehyde in cars, you should again rely on ventilation. On particularly hot days, you’ll want to allot time to roll down your car windows and allow the vehicle to air out. ProPublica found that not only do new cars contain levels of formaldehyde higher than the EPA calculated to protect people from breathing problems, allergic reactions or asthma symptoms, but cars as old as four years can continue to release potentially harmful levels of the chemical, particularly on hot days. Set your car’s air conditioner to allow outside air to circulate through the vehicle.

There is one throughline in all of the advice and research on reducing formaldehyde exposure indoors — ventilation. Opening windows and doors, turning on fans and ventilators, and leaving products in open spaces for long periods of time so they can release formaldehyde all allow the chemical to vent away from us. Formaldehyde’s ubiquity means there isn’t a way to absolutely wall ourselves off from it. But opening the window may be our cheapest and best course of action.

Sharon Lerner and Al Shaw contributed reporting.

by Topher Sanders

How Much Formaldehyde Is in Your Car, Your Kitchen or Your Furniture? Here’s What Our Testing Found.

5 months 4 weeks ago

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The air was packed with savory and sweet aromas when I walked into my colleague’s Brooklyn apartment for dinner. The sizzle and pop of rice and green beans cooking on the gas stove blended with soft jazz coming from the TV. Candle flames danced and flickered.

But we weren’t gathering just to enjoy a late-summer meal. We were trying to expose an uninvited yet ever-present guest — formaldehyde.

The invisible chemical can be harmless in small amounts, but in larger concentrations, it can cause headaches, dizziness, respiratory illness and asthma. It is also responsible for more cancer than any other toxic air pollutant.

Because of its importance to many industries, formaldehyde has proven difficult to regulate. This year, President Joe Biden’s administration finally appeared to make some progress, though it was modest. If the past is any guide, however, even those limited efforts are likely to hit a dead end after Donald Trump is inaugurated. Knowing our risks is essential to protecting ourselves, experts say. Last week, ProPublica published a tool to show how much formaldehyde is in the outside air.

But our biggest exposure happens indoors, so my colleagues and I set out to do our own testing.

We read thousands of pages of scientific studies and Environmental Protection Agency documents on the dangers of formaldehyde, and we learned the toxic chemical is nearly impossible to escape. Formaldehyde is in furniture and flooring. It is in the adhesives used in wallpaper and carpets. It’s given off by candles, fireplaces and gas stoves. And it’s in hair products and cosmetics.

EPA scientists recently examined how low formaldehyde levels should be to ensure the chemical doesn’t trigger an allergic reaction, breathing problems or asthma symptoms, and the concentrations found inside the average home were far above that. Over a lifetime of exposure to the formaldehyde in an average home, a person’s risk of developing cancer is more than 250 times the risk level that the Clean Air Act sets as a goal. Even that number vastly underestimates the risk from cancer because the EPA did not factor in the chance of developing myeloid leukemia, the most common cancer caused by the chemical.

“It is everywhere, it is in everything,” University of California, Los Angeles researcher Nicholas Shapiro told me. Shapiro, who has spent years studying formaldehyde exposure, is working on a book, “Homesick,” that explores how formaldehyde, among other toxic chemicals in our homes, poses a danger to our health. “It is holding together our built environment and also chemically corroding us at the same time. It’s part of the fundamental paradox of the world that we’ve built, where this chemical is holding together our homes. We have built our society around it.”

My colleague Sharon Lerner and I traveled around New York City and New Jersey for weeks with equipment to measure the chemical’s presence.

The results proved concerning.

Out on the Town

Reporter Sharon Lerner fits a backpack with a pump that will allow for testing airborne formaldehyde levels before she heads outside. (Topher Sanders/ProPublica)

Sharon and I took a moment to wipe the July sweat from our brows as we got our testing equipment ready in a sprawling shopping center in Brooklyn. I placed a pump about the size of a large tape measure into Sharon’s backpack. The pump pulled in air through a two-foot rubber hose that extended out of the backpack’s main compartment.

I turned on the pump, which made a soft pneumatic sound. We were ready to ride the escalator up to an Ashley Furniture showroom in the Industry City mall.

“Can I help you guys find something?” a friendly salesperson asked.

“We’re just looking, thanks,” I replied.

We hoped the hose sticking out of Sharon’s backpack and the sound of the pump wouldn’t lead to more questions. For the next 20 minutes, we perused the showroom, opening cabinets, dressers and nightstands.

The store offers a wide range of budget furniture that can be made with foams, adhesives and wood composites that contain formaldehyde. These products go through a process called off-gassing, where chemicals they contain are released into the air over time. New furniture right out of the box has been shown to off-gas more than pieces that have been sitting out of their packaging for a while.

[Formaldehyde] is holding together our built environment and also chemically corroding us at the same time. It’s part of the fundamental paradox of the world that we’ve built, where this chemical is holding together our homes. We have built our society around it.”

—Nicholas Shapiro, a researcher at University of California, Los Angeles

Inside Ashley, it was hard to ignore the pungent fresh-furniture scent that wafted out of an opened cabinet or dresser. Sure, the furniture smelled, but we had no idea how much, if any, formaldehyde was present. The pump in Sharon’s backpack was collecting the air and any formaldehyde into a glass tube. As soon as we walked out, we placed the tube in a small cooler so we could send it to a lab for testing later.

We had other ideas about where to test. Sharon and another ProPublica colleague found a nail salon near New York City’s famed Canal Street. Some nail hardeners and polishes contain formaldehyde that may be listed on the product label as formalin or methylene glycol, according to the Food and Drug Administration. Also some nail polishes contain a toluenesulfonamide-formaldehyde resin that’s used to make the polish more resilient and adhere better to fingernails.

Standing on the busy sidewalk outside the salon with tourists buzzing by, I helped prepare the testing equipment. Once Sharon was inside, an employee soaked her hands and nails, then slathered them with goos, gels and paints. The air was acrid. The employee wore a disposable face mask, but other workers were unmasked as they clipped, sanded and shellacked customers’ nails.

A week or so later, I visited a Raymour & Flanigan furniture store in northern New Jersey. The sales folks didn’t pay much attention to me, so I didn’t have to worry about having an awkward conversation about the sound of the pump in my backpack. I walked around for more than 20 minutes, opening nightstand and dresser drawer.

Sharon and I stopped by a mall store that sells luxury soaps and lotions. We visited a cosmetics shop, a carpet store and a candle specialist. We packed up the air samples we collected and sent them to a certified industrial hygiene lab in Syracuse, New York, and waited.

The air pump in Sharon’s backpack collects a sample as she browses a New Jersey carpet store. (Topher Sanders/ProPublica)

The EPA has determined that continuous daily exposure to concentrations of formaldehyde above 7 micrograms per cubic meter of air may cause decreased lung function, trigger allergic reactions and worsen asthma symptoms. Children and older people with asthma can be especially sensitive. It can be hard for doctors to identify formaldehyde as the reason for these kinds of reactions because it doesn’t linger in our bodies and there isn’t a medical or laboratory test that can accurately measure the amount of formaldehyde you may have been exposed to.

The chemical’s impact on our bodies can intensify dramatically the longer we are exposed. For instance, the EPA found that exposure to any amount of formaldehyde above a tiny concentration (0.09 micrograms per cubic meter) elevates people’s lifetime cancer risk beyond the goal the agency set. If the agency included the risk of developing myeloid leukemia in that calculation, that tiny concentration would be even smaller (0.023 micrograms).

When the lab emailed me the results, it revealed that our air sample from Ashley contained the highest levels of formaldehyde in our testing — 13 times the amount the EPA says is low enough to prevent issues like asthma, decreased lung function and respiratory irritation. Other results were also concerning. The nail salon had a concentration more than 6 times the level the EPA says would prevent breathing problems. Raymour & Flanigan’s concentration was more than 7 times the safe level. Federal regulators have set limits on how much formaldehyde some composite woods can release. But those limits are still well above the level EPA scientists established to prevent allergic reactions and other health problems.

A person’s risk depends not just on the chemical’s concentration but on how long they’re exposed. At the places we went, Sharon and I had been exposed to those concentrations for a matter of minutes, but the stores’ employees spend hours every workday breathing in the chemical.

In response to questions from ProPublica, Ashley Furniture spokespeople said the company follows all laws and regulations for furniture manufacturing.

“Given the many factors that contribute to air quality and the presence of formaldehyde, it would be impossible to say whether the furniture located in the store you visited contributed to your findings,” one wrote to ProPublica. The company also claimed that a 2011 survey of New York City found concentrations of formaldehyde in the surrounding neighborhood that were even higher than we had found in the store. But the survey actually found formaldehyde levels of only 1.5 micrograms per cubic meter in the area, a tiny fraction of the 91 micrograms ProPublica found in the furniture store.

Formaldehyde doesn’t linger in our bodies and there isn’t a medical or laboratory test that can accurately measure the amount you may have been exposed to.

Raymour & Flanigan did not respond to questions.

One of the more disturbing results was from the dinner party at the Brooklyn apartment of my ProPublica colleague. The lab tests showed the concentration of formaldehyde was nearly 12 times the level the EPA set to protect against breathing problems and other health issues. Formaldehyde is a byproduct of combustion, and we suspected that the gas stove and candles were largely to blame for the high levels of the chemical that evening.

Like anyone, I couldn’t help but wonder how much formaldehyde might be present in my own home.

Inside the House

About two months before we started the testing, my wife and I purchased a kid-sized work desk for our 10-year-old daughter’s bedroom to give her a place to do homework, create art and make those annoyingly messy Rainbow Loom bracelets.

When I opened the box for the desk, I was hit with the familiar smell of budget furniture. I had no idea I was inhaling a chemical mixture that may have included formaldehyde.

It took me longer than it should have to assemble the desk, but when I finished I got a huge hug from my daughter. She loves it.

Now I was curious about how much, if any, formaldehyde was lingering in her room, which she shares with her 5-year-old sister.

According to the Department of Housing and Urban Development’s American Healthy Homes Survey, the average level of formaldehyde inside an American home is 23.2 micrograms for every cubic meter of air. The survey found that about 10% of homes have levels above 41 micrograms, which is almost 6 times the concentration the EPA set to protect against respiratory problems.

Americans spend most of their time inside, and for decades we’ve worked hard to engineer ways to insulate and seal off our homes from the outdoor heat and cold. But that insulation works to trap formaldehyde in our homes, and older insulation might itself contain the chemical.

I placed a formaldehyde testing badge in my daughters’ room. The badges don’t draw air into them like the pump Sharon and I used at Ashley Furniture. They are intended to be worn by a worker or to rest in an area so that they collect samples from the air that simply passes by them. I put another badge in our kitchen, where we have a gas stove.

The lab results showed that my daughters’ room contained formaldehyde at 19 micrograms per cubic meter, one of our lower results, but still nearly 3 times the threshold the EPA set to prevent respiratory problems. I couldn’t help but wonder what the measurements would have been had we tested the room right after I assembled her cute new desk, instead of months afterwards. Our home’s kitchen recorded a level of 25 micrograms per cubic meter, also well above the EPA’s threshold.

Our testing hardly meets the rigor of scientific research. But plenty of scholarly studies have confirmed formaldehyde’s presence in our everyday lives and mirror our findings. Researchers have found unhealthy concentrations of the chemical in child care centers, funeral homes and even bakeries. A 2016 study in Atlanta found portable and traditional classrooms had levels more than 3 times the EPA’s target. And research dating back decades has frequently found high concentrations in people’s homes, with sources including wooden toys, baby cribs, arts and crafts supplies, and air fresheners.

ProPublica reporter Topher Sanders wears a backpack fitted with a formaldehyde monitor through a retail store. Reporters also placed formaldehyde testing badges in cars and in Topher’s daughter’s bedroom. (First image: Topher Sanders/ProPublica; second image: Sharon Lerner/ProPublica; third image: Topher Sanders/ProPublica)

Two flashpoints over the last 20 years have generated intense scrutiny of the dangers of formaldehyde. In the first, researchers found in 2007 that Federal Emergency Management Agency trailers that served as emergency shelters for many displaced by hurricanes Katrina and Rita reeked of formaldehyde. Some of the trailers in Mississippi and Louisiana had as much as 635 micrograms per cubic meter — more than 5 times the amount of formaldehyde we found in the Ashley Furniture store. Residents complained of breathing problems, nosebleeds and headaches.

One of the more disturbing results was from the dinner party at the Brooklyn apartment of my ProPublica colleague. The lab tests showed the concentration of formaldehyde was nearly 12 times the level the EPA set to protect against breathing problems and other health issues.

The second flashpoint came in 2015 when a “60 Minutes” investigation revealed that laminated flooring products from the popular company Lumber Liquidators were off-gassing significant concentrations of formaldehyde. Those revelations led to years of lawsuits, new EPA rules and a $33 million criminal penalty assessed by the Department of Justice after the company lied to investors in official filings about there being formaldehyde in its products.

Other studies have confirmed that the poor are disproportionately exposed to high concentrations of the chemical. Shapiro, the UCLA researcher, spent two years talking to more than 200 people who were connected to or lived in FEMA trailers. He said the well-to-do can afford to live in homes with enough ventilation, space and technology to reduce their exposure to formaldehyde.

The chemical’s presence in our lives and the way it is regulated, he said, ensures it “is going to continue to disproportionately make lower-income people sick.”

So sure, formaldehyde is in our homes. But when you walk out the door and drive away, you get a reprieve, right? Unfortunately, I learned through this reporting that no, you might not. When you get in your car, formaldehyde may be along for the ride.

On a Drive

In cars, formaldehyde adhesives can be found in the dashboards, seat coverings, flooring materials, carpeting, door trim, window sealant and armrests. And just like furniture, the highest levels of formaldehyde are found when cars are fresh off the assembly line.

Last year, the European Union set limits on the amount of formaldehyde new cars and other consumer products are allowed to release. New vehicles must not emit more than 62 micrograms per cubic meter, a level that’s 8 times the concentration the EPA says is safe to avoid breathing problems and other harmful effects. In coming up with the standard, the European Commission said it tried to protect the public’s health while also “limiting the socio-economic burden and need for technological changes for a wide range of industries and sectors.” The U.S. has no limit for new cars.

Sharon and I took our testing equipment on the road. The employees at a Tesla dealership we visited in north New Jersey were kind and welcoming. They let us take the Model S for a 30-minute test drive. We played around with the car’s gadgets while running the air conditioning and letting our formaldehyde pump collect samples.

The vehicle was one of five we test drove. None would have violated the EU limit, but all of them registered formaldehyde readings above the EPA’s threshold for preventing respiratory problems.

The Tesla had the most formaldehyde, at 38 micrograms per cubic meter — 5 times the level EPA’s scientists set to avoid causing respiratory problems. A Honda Odyssey, one of the bestselling minivans in the country, had 34 micrograms. A Toyota Corolla, the popular compact sedan known for its reliability, contained 29 micrograms.

A spokesperson for Honda said the company is an industry leader in reducing volatile organic compounds like formaldehyde inside car cabins.

The Odyssey is “compliant with all applicable international regulatory values for vehicle interior VOC’s,” the spokesperson wrote, referring to volatile organic compounds.

Tesla and Toyota did not respond to ProPublica’s questions.

Even older cars can still emit formaldehyde. My family’s 4-year-old sedan registered 39 micrograms per cubic meter on a sunny July day that reached 93 degrees. That’s higher than any of the new cars we tested.

We were able to get results from 19 places where we tested the air. In all of them, formaldehyde concentrations were higher than the level the EPA set to protect people from experiencing asthma symptoms, allergic reactions and other breathing problems. Those venues included a high-end store selling personal care products, a well-known candle shop and a big-box building supplies retailer.

Karen Dannemiller, an environmental health scientist and associate professor at Ohio State University, studies the effects of chemicals on the indoor environment. She has also researched how smartphones could be used to help measure indoor formaldehyde levels. She said learning about the impact and prevalence of formaldehyde can be eye-opening.

“I think it can be overwhelming to hear all this information because obviously we all want to protect our families,” she said. The most important thing, Dannemiller said, is to consider how our purchases and choices impact our homes “and just do the best that we can to improve the health of our indoor spaces.”

by Topher Sanders, with additional reporting by Sharon Lerner and Al Shaw

“Eat What You Kill”

6 months ago

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Lisa Warwick found her husband gasping for air at the foot of the basement stairs and knew the miracle was over. It was Aug. 2, 2020, more than 11 years since Scot Warwick had been diagnosed with Stage 4 lung cancer. Most patients are dead in months, but her husband, who had just turned 51, had somehow destroyed the odds.

“Are we going in?” she asked.

“Yes,” he said. “We are going in.”

His body had endured six years of chemotherapy and an additional five of experimental therapies. According to his medical record, he had responded “singularly impressively.” Two months earlier he had been running 5 miles a day, but since the latest round of chemo he had rapidly declined.

Lisa Warwick guided her husband up the stairs, dragged him to the car and raced to St. Peter’s Hospital in downtown Helena, Montana.

The emergency room doctor cited shortness of breath, fever and chills. He flagged that Warwick’s respiratory crisis could be the result of the chemotherapy. It had been restarted weeks before on the order of the oncologist who diagnosed him, the only doctor he’d consistently seen for more than a decade.

The next morning, a doctor named Randy Sasich arrived for his shift at St. Peter’s. An independent nonprofit with just under 100 beds, the hospital is the only acute-care facility for about 100 miles in any direction and has touched the lives of virtually every area resident going back generations. Helena, the state capital, remains a small vestige of the Old West, with just 34,000 residents, so luring doctors has always been a challenge. This was especially true in April 2020, at the onset of COVID-19, when Sasich signed a short-term contract.

Dr. Randy Sasich (Brooke Herbert for ProPublica)

A 47-year-old lung specialist, with degrees from Georgetown and Santa Clara University and experience at hospitals in major cities, Sasich was a rare get. The de facto director of the hospital’s intensive care unit, Sasich met with the morning shift’s coordinating doctor. Standing in the ICU, the two ran through patients, their needs, the usual, until Warwick.

We have a 51-year-old patient with metastatic lung cancer, diagnosed 11 years ago, Sasich remembered the doctor saying.

“There’s no way,” Sasich interrupted.

Well, he’s been treated for 11 years, the doctor explained.

“You don’t live 11 years after a Stage 4 lung cancer diagnosis,” Sasich said. “That doesn’t make any sense.”

Between patients, Sasich reviewed Warwick’s chart. Something must have been misread along a medical game of telephone, he reasoned, or he’d missed some great advancement in cancer treatment. He found the 2009 report that prompted the cancer diagnosis. A smoker at the time, Warwick had seen an ear, nose and throat doctor about a tiny lump on his neck. The ENT had sent a sample of cells from Warwick’s neck to the lab. A few days later he wrote in the file that they were “most likely consistent” with cancer.

That is not a cancer diagnosis, Sasich thought.

The records indicated that Warwick was referred to the hospital’s Cancer Treatment Center. Sasich’s curiosity graduated to shock: There was no biopsy. Yet Warwick was immediately placed on an aggressive chemotherapy regimen by the hospital’s sole oncologist, Dr. Thomas C. Weiner.

This is bad.

In his few months at St. Peter’s, Sasich had already questioned Weiner’s incomplete documentation and curious diagnoses and had taken his concerns to a veteran doctor for advice. To Sasich’s surprise, his colleague was fearful of challenging Weiner. According to Sasich, the doctor said: “I live here. My kids go to school here. I don’t want to move.”

Sasich scoured Warwick’s file, thinking someone must have ordered a lung tissue biopsy, which would capture more cells and target the suspected origin of the disease. Where was the lab report that confirmed cancer and ruled out everything else? From 2009 to 2019, he found none. Then, finally, there it was — in April 2020, just a few months earlier — a report on lung cells biopsied. Sasich read and reread the pathologist’s conclusion: no cancer.

“What the hell is going on here?” he whispered.

Despite the negative biopsy, Weiner had started Warwick on another round of chemotherapy, according to the medical records. Within two months, Warwick couldn’t walk upstairs, and now he was in the ICU while his wife and two children waited outside of the hospital because of COVID-19 protocols.

Sasich called the pathologist, who confirmed the finding. Sasich feared his own hypothesis. He worried what it would mean to Warwick and his family, but the “unbelievable conclusion” he had come to might save the patient’s life.

The next morning, Sasich entered the ICU where Warwick lay in the dark, oxygen pumping into his nose. Sasich pondered how to tell a man that everything he believed about himself for more than a decade was false.

Deposition of Dr. Randy Sasich

Watch video ➜

Moments after Sasich left the room, Warwick called his wife. “He doesn’t know my history,” he told her. “He doesn’t know anything about me. He doesn’t know I’ve had this for 11 years. He doesn’t know anything. And this doctor’s telling me that I don’t have cancer? This guy’s an idiot.”

Sasich knew he had just challenged a powerful figure in Helena. He just had no idea how powerful.

While reporting on COVID-19’s toll in early 2022, I found myself in Helena, chatting over drinks with a handful of St. Peter’s medical staff. They wondered why I wasn’t asking about Tom Weiner. There was a deeper, haunting story, they told me, about the oncologist many inside the hospital suspected of hurting his patients. Despite those whispers, he was beloved by countless patients — “followers,” they called them. His nurses were wildly devoted to him — “a cult,” they said. The hospital administration feared him.

The rumors they shared, though vague, were disturbing and impossible to ignore. They portrayed a man whose ability to both inspire and intimidate had divided the town of Helena. It would take two years to unravel one doctor’s myth, a hospital’s complicity in creating it and the attempt to conceal a trail of suspicious deaths. One of them, I’d later learn, was of a 16-year-old girl.

Early in my reporting, I reached out to Weiner. Reluctant at first, he agreed to sit down with me. He was, he told me, the good guy in this story.

Dr. Thomas C. Weiner (Louise Johns, special to ProPublica)

Weiner, 61, is guarded about his own life. He was raised Lutheran. His mother was a nurse, his father an FBI agent who urged him to be a lawyer. Weiner told me he was never much of “a research guy.” Rather, he wanted to bring a personal touch to medicine, to help people in their most vulnerable moments. He attended medical school at Hahnemann University, now Drexel, in Philadelphia. There, he met his wife, a devout Catholic, and he converted. An avid mountain climber and skier, Weiner felt that American westward pull and, after training in hospitals in Pennsylvania and Vermont, took the job at St. Peter’s in 1996.

He arrived as something of a savior. In an ad in the Great Falls Tribune, the hospital announced that it had hired a permanent oncologist to direct its new cancer treatment center, replacing a rotation of doctors who made often precarious commutes from Great Falls, Bozeman or Missoula. For most of the next 24 years, he was the only option for thousands of cancer patients. It’s not an overstatement to say anyone who had cancer or knew someone who had cancer in that time knew of Weiner.

He was instantly popular. Among his first patients was fashion designer Liz Claiborne, whose husband described Weiner as “a solid rock of a man, cheerfully youthful, robust, square-shouldered, handsome in a quiet way.” The Weiners became prominent members of the Cathedral of St. Helena and donated money to the Vatican.

In our talks, he was as Claiborne’s husband described, if weathered by a quarter century in the dry high country. He is fit, almost always wearing hiking shoes, a North Face T-shirt on warm days, a fleece in the cold. With sharp blue eyes, he smiles when he explains his medical judgment, projecting an absolute conviction in what he believes and has done.

Weiner’s stature rose with the cancer center’s. In late 2000, a news article reported that it was now treating about 250 patients a year. Three months later, the facility announced it would be adding six chemotherapy chairs, a library and a meditation center. An article in the Independent Record, the local paper, noted, “In the five years that Weiner has been with the cancer treatment center, he has seen an increase from 12 or 13 patients per day to 35 or 40 patients per day.”

Weiner told me, and records confirm, that he billed for as many as 70 patient contacts a day. That pace made him an obvious outlier in data tracked by federal insurance regulators, but no one inside or outside the hospital slowed him down. He spoke proudly of his workload. He was always on call, he told me, and many of his patients had his cellphone number. As business boomed, so did Weiner’s wealth.

Deposition of Dr. Thomas C. Weiner

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Adding to a six-figure base salary, his pay was calculated by the number of relative value units, or RVUs, he billed on behalf of the hospital. The system compensates doctors using weighted values for certain types of visits or treatment. It works like this: A doctor might be paid $100 per RVU. A routine physical might be equal to 1 RVU, or $100; a more complicated and time-consuming procedure like radiation therapy might equal 8 RVUs, or $800. In other words, the more patient visits and treatments a doctor bills to insurance, the more that doctor and the hospital earn. Weiner described this system, which is common in American medicine, as “eat what you kill.”

In 2006, Weiner purchased a 3,400-square-foot home atop Mount Helena with a panoramic view of town. The next year, Weiner’s rising RVUs made him the hospital’s highest earner at $751,000, tax filings show. By 2010, Weiner was paid more than $1.3 million, more than three times the salary of hospital CEO John Solheim.

Around this time, according to court records, hospital administrators worried that Weiner’s pay could draw scrutiny from federal regulators for a violation of the Stark Law, which prohibits physicians who bill Medicare and Medicaid from referring patients in ways that enrich themselves. Those programs account for about 60% of St. Peter’s revenue. As questions about his pay intensified, Weiner responded by coordinating a staff rebellion, text messages show. A majority of St. Peter’s medical staff signed a letter of no confidence in Solheim, and Weiner was the lead signatory of a letter published in the Independent Record that charged the hospital with caring more about money than quality patient care. Not long after, Solheim resigned. He did not respond to my requests for comment. It’s unclear if the hospital at that time had its own concerns about the quality of Weiner’s care.

St. Peter’s had flourished since Weiner’s arrival, recording nearly 200,000 patient visits and bringing in more than $187 million in 2012. Weiner told me that most years his cancer care accounted for more than a quarter of the hospital’s revenue; St. Peter’s told me it was closer to 10%.

When negotiating his pay, emails show that Weiner leveraged his position as the region’s only oncologist, threatening to sue or quit, and he would prevail. With that power, he built a kingdom. In an unusual move, St. Peter’s allowed him to take over every facet of his patients’ care by naming himself their primary care physician. Because other options for cancer treatment were a long car ride or plane trip away, patients rarely sought a second opinion. Weiner protected his turf, resisting attempts to hire another oncologist or to transfer his patients to other doctors, court records show. As a result, few colleagues were looking over his shoulder. Inside the hospital, some referred to what he created as “his closed system.” As one doctor put it to me, if you were Weiner’s patient, “he grabbed on to you. He stayed with you for life. No one else would see you until you die.”

Concerns about Weiner’s billing and patient load persisted. Solheim’s successor, Nate Olson, also questioned his compensation. Weiner again helped organize a vote of no confidence, records show. Olson, who did not respond to requests for comment, stepped down in May 2016.

In 2019, St. Peter’s current CEO, Wade Johnson, hired an expert on the federal False Claims Act and fraudulent billing practices to study Weiner’s pay. The consultant described Weiner’s RVUs as “exceedingly high” and his compensation “a significant outlier.” Weiner logged nearly four times the visits and treatments of the median oncologist in the United States, despite working in a sparsely populated region. The consultant said the billings could be defended but warned they presented a potential legal and financial liability for both the hospital and Weiner.

From 2009 to 2020, the period Scot Warwick was under his care, the hospital paid Weiner more than $20.1 million. In all our conversations, he never shirked questions about his income. The bottom line, he told me, was that without him, St. Peter’s had no cancer center. “You want me to keep seeing everyone?” he said. “Then you’re going to pay me more, because I’m doing more work.”

Helena, Montana (Louise Johns, special to ProPublica)

Each morning Warwick lay in the ICU, Weiner visited, still dressed in his gym clothes. Over a decade Warwick had come to see his doctor as a friend. In their talks, Weiner dismissed Sasich’s hypothesis, though he agreed with the decision to stop administering the chemotherapy drug gemcitabine. As Sasich spent more time with Warwick, his confidence only grew. Throughout his treatment, Warwick had shown few symptoms of lung cancer and had continued to backpack, camp and kayak with his kids.

In Warwick’s records, a medically coded tit for tat ensued between the hometown celebrity and the outsider. Sasich ordered a new biopsy and tests to look for infection in Warwick’s lungs. “Dr. Sasich,” Weiner responded, “is still skeptical of the diagnosis.”

Lisa Warwick first heard from Sasich on Aug. 9, a week into her husband’s hospitalization. He wanted to explain the need for another lung biopsy. A habitual note taker, she scribbled words her mind could not accept: “This doesn’t present to me like cancer,” he told her.

“Well, how could that be?” she remembered thinking. “All our lives sucked for 11 years. I can’t imagine that we went through all that and it not be real.”

Sasich agonized about what to do. Doctors rarely challenge one another’s work. But after talking with the Warwicks, he filed an official complaint, accusing Weiner of an egregious mistake. He sent a letter to the hospital’s peer review committee, an internal group of doctors tasked with examining concerns about patient care. In it, he wrote that Warwick “would be the longest living case in the medical literature.”

One of the tests Sasich ordered indicated a possible fungal infection in Warwick’s lungs — not uncommon for patients whose immune systems have been wrecked. He was treated with steroids and an antibiotic cocktail. Warwick improved and, on Aug. 13, was sent home with an oxygen tank. Three days later, Lisa Warwick found him suffocating. He left home again for St. Peter’s, this time in an ambulance.

After a week of tests, Sasich called Lisa Warwick to tell her that her husband was experiencing a rare and excruciating reaction to the antibiotic Bactrim. Called Stevens-Johnson syndrome, it causes the skin to blister and peel. He was intubated and flown to a specialized burn unit at the University of Utah’s Huntsman hospital. The next day, Warwick’s left lung collapsed. A doctor told her to rush down to Salt Lake City.

For three weeks, Lisa Warwick lived at Huntsman, unable to leave and reenter because of COVID-19. Inside, doctors expressed to her confusion about Warwick’s diagnosis and sparse medical record.

When his right lung neared collapse, a doctor asked about his dying wishes — his code status. Do not resuscitate, Lisa Warwick said, a DNR. When they could do no more, the lead doctor pulled her aside. According to court records, he asked if she wanted an autopsy. As he asked, the doctor nodded his head up and down. She said yes.

Scot Warwick’s final communication with his wife was a faint squeeze of her hand. He died just after midnight on Wednesday, Sept. 16, 2020.

A memorial to Scot Warwick in the family home (Louise Johns, special to ProPublica)

About a month later, his widow heard from the medical examiner. This is how she recalled the conversation during court testimony:

“Mrs. Warwick, I’ve never had to make this call before,” he said. She began to take notes. “I’m sorry.”

“OK?”

“We did not find any cancer cells at all. We can’t find anywhere in his records that he had cancer and found no malignancy at all.” All signs indicated he died from lung failure caused by the drug gemcitabine. Chemotherapy killed him.

As the conversation closed, she asked: “What am I supposed to do with this? What do I do?”

“Get a lawyer,” he said.

Left to right: Peyton, Lisa and Brady Warwick (Louise Johns, special to ProPublica)

After Warwick’s death, Sasich bumped into Dr. Robert LaClair, the hospital’s kidney specialist and chair of the peer review committee. “How the fuck did this go on for so long?” Sasich asked. He considered LaClair an excellent specialist and consulted him frequently. From LaClair’s face, Sasich worried he had offended him.

A former Air Force doctor, LaClair has a certain respect for bureaucratic channels, which Sasich admits is not his domain. LaClair had worked with Weiner for 11 years and over that time had choked down his concerns. As he would later tell me: “I was caught up in the culture. We all were.”

LaClair revealed to Sasich that for months he had been quietly building a case against Weiner. According to court testimony, he advised Sasich to lay low as any attempt to remove Weiner had to be done “by the book.” Weiner had the money to sue the hospital and had threatened to do so many times. It could become a circus. Sasich was relieved that something was happening but was outraged that no one had acted before his patient suffered an agonizing death.

What LaClair didn’t tell Sasich was that the problem was worse than he knew. The review had begun a year earlier, after LaClair and a colleague questioned Weiner about his practice of providing minimal, often indiscernible, notes in his patient files. This poor documentation complicated follow-up care and, according to LaClair, intentionally made it difficult for others to question Weiner’s treatment. Court records show LaClair and his colleague also told Weiner to stop admitting scores of patients to the hospital for stays unrelated to cancer — stays that financially benefited him.

By early 2020, doctors and nurses had submitted enough confidential complaints for peer review to make LaClair act. He sent a half dozen patient files to medical experts at the University of Utah, but the conclusions had been delayed by COVID-19.

After Warwick died, St. Peter’s added his file for review. The doctor examining it quickly responded, thinking there must have been a clerical error: The packet didn’t include a biopsy to support the 2009 diagnosis. On Oct. 9, St. Peter’s received his analysis: “If he had cancer, this course of many years would be truly remarkable.” It went on, “The long-term treatment with toxic medications in the absence of a confirmed diagnosis of cancer is not reasonable.”

External reviews typically lack forceful language, perhaps by design. Medicine is nuanced, messy and rife with decision points and diverging paths, so doctors grading other doctors can sound deferential, even perfunctory. The eight Utah reviews were different.

Looking at a 2018 incident involving a 62-year-old man whom Weiner had diagnosed with throat cancer, a reviewer described several decisions as potential “malpractice” that led to an unnecessary two-month hospitalization. As with Warwick, there was no biopsy in the file.

Another review criticized what Weiner didn’t do. A 67-year-old woman with breast cancer had received chemotherapy and undergone a mastectomy and breast reconstruction. In a June 2019 check-up, Weiner noted “no evidence of any recurrence.” But records show that he didn’t conduct a breast examination. (Records show that this was a common failing in his breast cancer treatment.) Months later, the patient found a lump. A biopsy ordered at another hospital confirmed the cancer had been back for some time, which led to a second breast tissue removal, radiation and chemo.

Deposition of Dr. Robert LaClair

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“I’ve never seen so many cases of what we sent out that was not meeting standard of care. I’ve never seen that before, and I hope I never see it again,” LaClair would testify.

LaClair later told me, “When the Utah reports came back, it was like: ‘Holy fucking shit. This is going to suck.’”

On Oct. 15, 2020, St. Peter’s suspended Weiner and revoked his privileges. Banished from the kingdom he’d built over a quarter century, Weiner told me he felt only “blank.”

The hospital hired The Greeley Company, a health care consultancy, to scrutinize the records of dozens of additional patients, many of them dead. Weiner would be given an opportunity to defend himself and regain his job at an internal “fair hearing.”

Word of Weiner’s suspension devastated the nurses at his cancer center, the core group of women who called themselves “Tom’s wives” or his “girls.” They were the envy of nurses in other departments for the prestige of working for Weiner and for the perks. From 2005 to 2020, records show that he gave them at least $140,000 of his own money in bonuses and jewelry. Upon retirement, nurses could expect diamond solitaire earrings worth about $1,500. He invited them to his home for dinners and holiday parties. They messaged him regularly, wishing him well on his extended trips to Italy.

In the weeks following his suspension, they delivered food and sent supportive notes. They vowed to resist the administration. Weiner told them not to lose their jobs for him.

“I love you. I’m here. I’m so sorry. I’m praying,” nurse Emily Burton texted him.

“You can tell the girls I will be fighting,” Weiner responded. “But it will probably get bloody.”

To others, like nurse Meghan Giovenco, he expressed anger: “They are going for the jugular. Scum.”

When Weiner heard that Sasich questioned his work in front of his nurses, he texted a hospital administrator, “FYI put a muzzle on Sasich or else.”

News of Weiner’s suspension spread through social media and Helena’s shops and diners. Patients formed a Facebook group called “We stand with Dr. Tom Weiner.” He saved their lives, their spouses’ lives, they said. He remembered the names of their children and grandchildren. He was kind, brilliant. Dozens more joined, then hundreds and hundreds.

To those inside St. Peter’s, it resembled the campaigns that forced out the previous CEOs — only worse. Soon, the first of what would be more than a hundred small rallies was held outside the hospital. By ousting the region’s only oncologist, they contended, patients had been abandoned, consigned to long waits and a rotation of travel doctors. One sign proclaimed, “I WANT MY DR. WEINER, NOT THE SECOND STRING.” Their message spread to yard signs, bumper stickers and T-shirts. Supporters caravaned along Helena’s downtown, honking horns.

Signs of support for Weiner in Helena (Louise Johns, special to ProPublica)

The hospital fired Weiner on Nov. 17, 2020. Johnson, the CEO, convened a meeting with the cancer staff, telling them Warwick’s death was “the tip of the iceberg.” He barred attendees from recording the meeting, court documents show, and the hospital’s chief nurse paced the room, instructing employees to put their phones away. All of Weiner’s patients should seek second opinions, Johnson said.

Johnson also told the staff, “Don’t be surprised if black suits show up.” Weiner’s nurses understood this to mean that federal law enforcement or the Department of Health and Human Services would be investigating. “He explained it to be suits — there were going to be suits coming into the office and asking for things,” according to the testimony of nurse Andrea Thies, who, despite Johnson’s orders, took notes during the meeting.

“You walked out of there feeling like, ‘Was I killing people?’” nurse Fallon Melby would later testify.

Deposition of nurse Fallon Melby

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Three weeks later, St. Peter’s posted an astonishing disclosure on its website: “The issues we have identified include the following: harm that was caused to patients by receiving treatments, including chemotherapy, that were not clinically indicated or necessary; failure to meet state and federal laws associated with the prescribing of narcotics; failure to refer patients to other specialists for appropriate treatments; and failure to meet requirements associated with clinical documentation.”

It’s unclear if the hospital referred any of these issues to the state’s medical board or to state and local law enforcement.

Days later, Weiner sued St. Peter’s and its executives for wrongful termination and defamation.

Early in 2021, Sasich was pulled aside by Shelly Harkins, the hospital’s chief medical officer. According to Sasich’s court testimony, she apologized for getting him caught up in this mess.

She next confided a story that rendered him “physically ill.” Hospital administrators had for years harbored suspicion about one case, a 16-year-old girl who died suddenly under Weiner’s care. Sasich remembered Harkins providing few details but saying Weiner was frustrated that another physician was treating his patient. Once he regained control of her treatment, the girl didn’t live long. “She told me that he gave her two doses of propofol,” Sasich testified, “and she died.”

Sasich hoped it was just a rumor, an exaggeration. But when he asked LaClair about it, the person who knew more than anyone about Weiner’s practice didn’t refute the story but for one correction. It wasn’t propofol.

“No,” LaClair told Sasich. “He uses phenobarbital.”

St. Peter’s Health CEO Wade Johnson (Louise Johns, special to ProPublica)

In the days after Weiner’s termination, dozens of his patients came into the hospital asking for refills of oxycodone, morphine and other opioids. The doctors taking over Weiner’s caseload couldn’t find the prescriptions in St. Peter’s electronic system, according to court records, and Weiner’s patient files were little help. So they turned to a state database that logs all pharmacy opioid sales and discovered he had been writing prescriptions by hand, which bypassed internal hospital controls. To their shock, they found that many of his patients had been on dangerous levels of narcotics for years. The state agency that oversees that drug registry did not respond to a request for comment.

Often the patients seeking painkillers didn’t have cancer and had no documented need for them. Weiner had ordered them as their primary care physician. Many were struggling with addiction. St. Peter’s created a document for doctors to track the crisis in real time. Their notes included: “nonsensical” and “one of the worst indications for opioids. I’m still piecing this together …” and “Many years on methadone. Not clear why.”

Weiner told me the hospital manufactured these allegations to justify firing him, and he denied writing prescriptions by hand.

St. Peter’s assembled a committee of pain management experts to review more than 2,000 patient files. Dr. Kyle Moore, an addiction specialist, led the effort to detoxify patients. He found that Weiner rarely accounted for what doctors call morphine equivalents; essentially, he didn’t do the math to ensure that when patients received drugs at different intervals and strengths they didn’t add up to a lethal dose. Weiner denied this. In the narcotics tracking memo, Moore is quoted as saying Weiner’s prescribing was “a greater danger to the community than coronavirus.”

The full scope of Weiner’s prescription practices may never be known. The hospital alerted the federal Drug Enforcement Administration, which began an investigation, a spokesperson told me. But court records show no attempt by St. Peter’s to quantify the problem beyond its initial scramble to detoxify patients. St. Peter’s would not tell me if it searched for patients in the community who overdosed or died, nor would it say whether it reported what it found to the state medical board.

While the front-line doctors taking over patients were horrified, court records show hospital administrators and the peer review committee had been warned more than a dozen times, since at least 2018, that Weiner was overprescribing. I learned that staff who raised concerns expected to be yelled at or intimidated by Weiner. In 2019, two nurses and a pharmacist questioned a Weiner order to apply a fentanyl patch on a 93-year-old woman who was already on opioids and bobbing in and out of consciousness. A nurse texted Weiner to ask whether he was sure. Weiner responded, “Tell them put it on or I will rip their lips off.” Weiner told me this was “an inside joke.”

Federal regulators also failed to address alarming trends. An analysis of Medicare drug data shows that, from 2013 to 2020, Weiner’s volume of opioid prescriptions ranked ninth among all cancer doctors who bill the program. When it came to morphine, Weiner consistently ranked among the top five. In 2017, he prescribed more morphine than any other cancer doctor. The Centers for Medicare and Medicaid Services did not respond to questions.

Before St. Peter’s fired Weiner, the hospital sent five pain management cases to The Greeley Company. All were deemed inappropriate. One case was Sharon Dibble, a 75-year-old with many health problems, including kidney failure and chronic obstructive pulmonary disease.

On March 6, 2018, for reasons that were unclear to the reviewers, Weiner doubled her extended-release morphine from 30 to 60 milligrams twice a day, on top of an oxycodone regimen. Four days later, Dibble’s daughter found her limp, blue in the face, not breathing. Paramedics rushed Dibble to St. Peter’s, where she was kept on life support for more than two weeks. She died on March 27.

St. Peter’s said the cause was acute respiratory failure — her body starved of oxygen and shut down. The family believed her mounting ailments overtook her. But that’s not what happened, according to the Greeley review. Weiner’s “excessively large increase” in morphine, it concluded, “led to respiratory arrest and the patient’s demise.”

When I raised the Greeley review with Weiner, he called it “ridiculous.” He told me that he swapped short-acting pain medicines for long-acting but that Dibble’s morphine equivalent was unchanged — a claim contradicted by medical records and the hospital’s review of her death. The Centers for Disease Control and Prevention cautions against exceeding the equivalent of 90 milligrams of morphine daily and warns anything above 120 risks overdose. Records show Dibble’s daily regimen equaled 195 milligrams of morphine.

St. Peter’s never told Dibble’s family what it knew.

Five years after Dibble’s death, I shared the report with her son and two daughters. During his mother’s last days, Tom Dibble made the decision to stop life-sustaining measures. It was, he thought, her time to go. Now, he feels duped.

“Not only did this individual cause her death,” he said, referring to Weiner, “but it’s pretty apparent that this whole thing was being covered up. We were never given any knowledge that this took place, and we have to live with this decision.”

Family photographs of Sharon Dibble (Louise Johns, special to ProPublica) From left to right: Dibble’s children, Cindy White, Tom Stevison and Melba VanSprang, and her husband, Dennis Dibble (Louise Johns, special to ProPublica)

Six months after Weiner’s firing, the hospital conducted its fair hearing. As in a trial, witnesses testify, attorneys cross-examine, but a fair hearing isn’t public, and the judges are doctors — in this case, a panel of three from St. Peter’s. Held in a hospital conference room, the hearing took six days. On the first night, LaClair spelled out the allegations — Warwick’s death, the numerous misdiagnoses, the narcotics and more.

But that wasn’t the worst of it. The hospital also accused Weiner of overriding his patients’ dying wishes. If a patient wants CPR or a machine to keep them breathing, they elect to be a “full code.” Weiner, the hospital said, had a pattern of altering, without consent, a patient’s status from full code to a DNR/DNI, do not resuscitate and do not intubate. The hospital would not tell me if it pursued a complete accounting of what the fair hearing panel determined to be “a serious violation of the standard of care and medical ethics.”

At the hearing, nurse Addie Weidow described two events in which she witnessed a patient’s code status being changed without permission, including one where a patient nearly died before an intervening doctor sent her to the ICU. In another instance, Weidow testified, the chart of a patient who was full code suddenly read DNR/DNI. Following hospital protocol, nurses tried to attach a purple wristband, signifying her wish to die without intervention. When the patient refused the band, Weidow said Weiner told them to “hang the band on the doorknob and leave it be.” In other words, if her heart stops, don’t enter the room. Weiner’s nurses called it “a slow code,” Weidow testified.

When Weiner left town, Dr. Ashley Coggins managed his patient load, giving her a rare view into his closed system. She testified that “many nurses have come to me in the last several years, telling me that that was a standard practice of his — to just change people’s code statuses once they were doing poorly.” She added: “He was basically using his own judgment as the judgment for people to live or die. It’s horrifying.”

During the hearing, a hospital attorney asked Dr. Kerry Hale about the 16-year-old girl, the rumor that now haunted Sasich. Hale couldn’t recall the girl’s name but remembered she had a Wilms tumor, a kidney cancer that affects mostly children, and was being treated on the pediatric floor. Then, out of nowhere, Weiner transferred her to his oncology floor “and then orders for DNR, and then three doses of phenobarbital were given, and the patient died, I believe, that evening.” Phenobarbital is a barbiturate commonly used to treat seizures during alcohol withdrawal. In large doses, it is lethal.

When Weiner’s turn came, his lawyer asked for his account. His answer was clinical and unflinching. “Mom wanted her comfortable,” he said. “So, I transferred her to the oncology floor, and I gave her pain meds, phenobarbital, and she died later.” Neither the hospital nor Weiner’s attorneys pressed him for more details.

“Comfort” was a word Weiner used often in our conversations. If a patient dies as a result of his treatment, he told me, it’s not unethical if his intent was to provide comfort. In medicine, this is called the principle of double effect. First developed by the Catholic saint and theologian Thomas Aquinas, it’s a set of criteria by which a person can morally justify ending someone’s life. It stipulates that a harmful consequence of a medical treatment, such as death, is permissible if it’s a secondary effect of beneficial treatment, such as alleviating pain with drugs. “It’s for their comfort,” Weiner told me. “It’s not that I euthanize them.”

At the fair hearing, Weiner denied the hospital’s accusations. “Part of my problem is I have a good memory,” he said, “so I just remember things, and I probably should put more in the chart.” It wasn’t odd that he prescribed high-dose opioids, he said. He’s an oncologist, and his patients were suffering. Why was he giving painkillers to people who didn’t have cancer? For most of his tenure, he said, St. Peter’s didn’t employ a pain specialist.

As for his end-of-life care, Weiner said he always discussed the options with patients — “tens of thousands,” he estimated — before altering their status.

The panel unanimously rejected Weiner’s appeal.

St. Peter’s (Louise Johns, special to ProPublica)

Despite being fired, Weiner maintained his medical license. The law only required St. Peter’s to report his suspension — not what it knew — to the state medical board and the National Practitioner Data Bank. The medical board would not comment on whether it conducted an investigation into Weiner.

Rather than go into private practice or retire, Weiner decided to sue St. Peter’s, spending, by his own account, millions of dollars. He told me that he expected the hospital to settle for as much as $20 million because “they can’t let out what they did.”

By suing, Weiner exposed himself and St. Peter’s to pretrial discovery. Over the next three years, thousands of documents — text messages, patient files, financial statements, the fair hearing transcripts — were entered in court as evidence. Hours of depositions by doctors, nurses, administrators and Weiner were recorded.

Although at odds in every other way, Weiner and St. Peter’s had one common interest: concealing the evidence. Both parties successfully petitioned the court to seal nearly all the discovery. I was able to obtain it.

If the residents of Helena had seen those files, they would know how Weiner built a high-volume business that billed as much as possible to public and private insurance, all the while sending numerous patients through a carousel of unnecessary and life-threatening treatments. They would have learned that the hospital had financial incentives to look away.

Evidence of that high-volume business was hiding in plain sight, in data published by CMS. An analysis of Medicare Part B billing data shows that, from 2013 to 2020, Weiner billed for 40,000 15-minute visits, more than any other doctor — of any specialty — in the nation. The publicly available data offers just a glimpse of what St. Peter’s knew was a much bigger problem. “He’d see 15 patients in 30 minutes,” LaClair told me. This made Weiner rich and apparently missed the gaze of insurance regulators.

If Weiner was such an outlier, why did he never come to the attention of CMS? I reached out to John Hargraves, a data expert at the Health Care Cost Institute in Washington. CMS investigators, he told me, are looking for obvious fraud, such as doctors billing for more expensive work than they delivered. Instead, Weiner crammed in an extraordinarily high number of less expensive patient visits into each day.

When I asked St. Peter’s about what I had found, the hospital refuted none of it. It would not answer questions about Scot Warwick or Sharon Dibble or any other patients despite being given health privacy waivers signed by the families. CEO Johnson turned down requests for an interview. Andrea Groom, the hospital spokesperson, emailed a statement that broadly declined to comment, citing ongoing litigation. “We believe this situation is isolated to a single, former physician, and we remain confident in the exceptional care provided by St. Peter’s medical staff,” it said.

In a follow-up email, Groom wrote: “Dr. Weiner was a highly productive physician, but this was not necessarily alarming, given that he was the only medical oncologist treating cancer patients for a large service area during much of his time with St. Peter’s Health.” Patient satisfaction ratings were high, she said, and complaints were rare. Groom added that “there was no reason at the time for St. Peter’s to believe that Dr. Weiner was providing substandard care.”

In a court filing, the hospital told a judge it expects to be sued by more Weiner patients.

What the hospital’s response ignores is that St. Peter’s enabled and protected Weiner. As LaClair said in his deposition, Weiner’s colleagues didn’t stop him earlier “because we were afraid of him.” In court filings, St. Peter’s admitted that for years it knew of “serious concerns of physician colleagues and staff members with several patient deaths.” When I asked Weiner why the hospital would publicly accuse him of various types of malpractice but withhold its concerns about his end-of-life care, he said it’s because administrators knew what he was doing and even encouraged it.

Fifteen months before he was fired, Weiner and his nurses took over the hospital’s end-of-life care. I found an August 2019 text message exchange between the hospital’s chief nurse, Kari Koehler, and Weiner that made it official: “Are you still okay if all end of life patients go to onc[ology] even if they aren’t yours? I just feel like those nurses do it best!”

Weiner responded: “I agree!!”

By the summer of 2021, the pro-Weiner Facebook group had about 4,000 members. The hospital CEO was “evil,” “a true devil” and “puke.” The group campaigned successfully to have Weiner named “Helena’s Best Physician” in the Independent Record and raised the money to rent billboards that read “WE STAND WITH DR. WEINER.” When I asked Weiner why the town was cleaved in two over him, he smiled and offered a correction. “I wouldn’t call it 50/50,” he said. “More like 80/20.”

For Lisa Warwick and her two children, each Weiner sign was a reminder to keep silent. “I was worried about violence against us,” she told me. That summer, the family sued St. Peter’s for Warwick’s wrongful death. In her deposition, the widow said: “My children lost their father. I lost my husband. It wasn’t quick. It was long. And it was torturous. And it was terrible. And I would never, ever wish that on anyone — ever.”

In his depositions, and later to me, Weiner maintained that Scot Warwick had Stage 4 lung cancer for 11 years. The April 2020 biopsy that didn’t show cancer? The pathologist missed the spot where the cancer was, he said. In our conversations, Weiner said that the cancer had passed back-and-forth between Warwick’s two lungs.

“He was pretty advanced, though?” I asked. “Don’t you think it would be hard to miss?”

“Well, you would think,” he said. “I agree with you. I was kind of pissed off.”

What about the doctor in Utah who performed the autopsy? He also missed the cancer, Weiner said.

The Warwicks and St. Peter’s eventually settled the case for an undisclosed amount. Weiner was not held liable because he was a hospital employee. Neither the family nor their attorney have solved the mystery of why three private health insurers paid for 11 years of Stage 4 lung cancer treatment. None of the companies responded when I asked.

When I shared Weiner’s claim that 80% of Helena residents stood behind him, Sasich didn’t disagree. He drove past the protesters on his way to work. In the hospital, Weiner’s nurses barely looked at him. The billboard gave him chills. He couldn’t understand why people weren’t demanding answers.

Weiner’s supporters outside St. Peter’s (Louise Johns, special to ProPublica)

The mystery of the 16-year-old girl tore at him. He replayed the scenes in his head — Harkins, the chief medical officer, telling him that she may have been killed, LaClair confirming it. He asked a hospital attorney if they were investigating; “we’re aware of the case,” he was told. He took what he knew to Helena’s police chief. He had a brief meeting with a fraud investigator at the U.S. Department of Health and Human Services. No one seemed interested in pursuing it, Sasich told me.

Sasich’s inquiries came back to Weiner, who added him as a defendant in the lawsuit, accusing him of defamation. Sasich has denied the allegation.

Buried in the thousands of pages of medical records, correspondence and memos that build the hospital’s case against Weiner is a single sheet that summarizes the dying moments of seven people. In broken cursive, someone wrote in pen, “Phenobarbital cases.” Ranging in age from 53 to 77, they represent a small sample of those who died under Weiner’s care.

The memo tracks the final hours of a 62-year-old woman, admitted for stomach pain on Oct. 3, 2018. Four days later, at 6:01 p.m., she received 260 milligrams of phenobarbital for “terminal agitation.” Two hours passed. She received another 260 milligrams, then another at 10:58 p.m. — a total of 780 milligrams. She died just after midnight.

Unlike the narcotics and misdiagnosis cases, the hospital didn’t send these for outside review but rather enlisted its chief pharmacist, Starla Blank. During the fair hearing, Blank said the events were alarming because it wasn’t clear whether the patients were near death. “In most of the cases the patients were talking and visited with Dr. Weiner prior to their — prior to them getting the phenobarbital,” she said.

Still, St. Peter’s, which declined to comment on the phenobarbital cases, chose to ignore Blank’s assessment. In its final written account, the hospital concluded that the seven patients “were at end of life and that there were no remaining viable treatment options for them.”

One case is conspicuously missing from the phenobarbital memo.

There is no mention of the 16-year-old girl. In Harkins’ deposition, she recalled the case but not her name. LaClair’s testimony offered few details of an unnamed girl. Under oath, the hospital’s chief nursing officer referred to “a child” who had received so much phenobarbital as to arouse concern with nurses.

An online search of “Thomas Weiner” produces dozens of obituaries that express gratitude to the oncologist and his nurses for treating loved ones. One shows a photo of a thin girl with a big smile and blonde hair held back with barrettes. It speaks of hot air balloon rides in Arizona and beach trips in Oregon. She and her little brother built a play cabin in the woods and made pocket change selling lemonade. She loved camping and kayaking. At age 6, she was diagnosed with a Wilms tumor, but she didn’t let it rule her life. Her mother, who wrote the obituary, quotes her as saying, “Having cancer is no fun, but that doesn’t mean that you can’t have fun just because you have cancer.”

Her name was Nadine Long.

Deposition of Dr. Shelly Harkins

Watch video ➜

While I was reasonably sure this was the girl whose memory haunted the halls of St. Peter’s, I decided to knock on the door of the man who finally acted to stop Weiner but, by his own admission, had waited far too long.

To my surprise, Dr. Robert LaClair welcomed me into his home. Earlier that week in September 2023, a Montana judge had sided with St. Peter’s and thrown out Weiner’s lawsuit. The hospital had a right to enforce quality care under federal law, the judge ruled. In an addendum, the judge explained the hospital had not defamed the oncologist. Weiner vowed to file an appeal with the state Supreme Court. The judge did say, however, that Weiner’s defamation suit against Sasich could go forward. In LaClair’s study, we discussed Scot Warwick, the narcotics, the code status changes — cases he’d no longer have to recount in a trial. A weight seemed to be lifting from him, until I mentioned the name few knew. Taken aback at “Nadine,” his eyes welled. LaClair had read her file but had not sent it for outside review. He exhaled and after a long moment said: “Trust me, it’s so bad. You have no idea. She wasn’t terminal.”

By June 2024, Weiner and I had talked for many months. Sometimes, he’d offer an anecdote about an anonymous patient, unaware that I could identify their names and compare the stories with medical and court records. Invariably, he portrayed himself as a gifted and dedicated doctor. One was about a moribund young girl who needed him to intervene when a less capable doctor wasn’t keeping her comfortable. It was time to ask what happened to Nadine Long.

We sat at a long table in a hotel conference room in downtown Helena. Dressed in jeans and a short-sleeved polo shirt, he agreed to be recorded, attached a microphone to his lapel and talked first about a recent trip to Rome. Well into the interview, I presented him with a privacy waiver signed by Nadine’s family, and he told me his version of her final days.

It was March 2015. He was in New York, on Broadway, waiting with his wife for a matinee showing of “Les Misérables,” when Nadine’s mother called. She said her daughter was “in horrible pain. They won’t take care of her pain. Please come home.” After the show, he flew to Helena, arriving near midnight, and drove straight to St. Peter’s. Nadine was screaming and crying.

Weiner had treated Nadine since she was a child, when she was first diagnosed with cancer and when it recurred the following year. The cancer had now come a third time. Nadine had a pleural effusion — fluid built up between the lung and the chest cavity — that restricted her breathing. Her mother had talked with the oncologist filling in for Weiner, who was trying to transfer Nadine for further testing at St. Jude Children’s Hospital in Memphis, Tennessee. Weiner reviewed Nadine’s scans. “She was going down like a stone,” he told me. “She had hours to a day or two to live. There were no more cards to play.”

Hearing this, Nadine’s mother no longer wanted her transferred. “She just wanted her comfortable,” Weiner said. He gave Nadine a choice: a torrent of undignified treatments and pain with no promise of survival or “leave it up to God, and we’re just going to keep her comfortable.”

At that point, he moved Nadine to his oncology floor, to his nurses, “and she got some pain meds — I don’t remember how much phenobarbital — and she died later.”

His response mirrored what I had read in the fair hearing transcript. I had by then reviewed Nadine’s medical record, some of which I presented to him.

Weiner had examined Nadine less than a week earlier. In her file, he wrote, “she looks good … everything looks stable right now.” I asked how he could have missed what he claimed was an advanced and terminal disease.

“That’s how fast — the nature of that tumor when it comes back, it comes back with a vengeance,” Weiner said. “That fast.”

With her family’s consent, I had shared Nadine’s records with Dr. Sarah Friebert of Akron Children’s Hospital in Ohio. She specializes in pediatric oncology and founded and directs the hospital’s pediatric palliative care center. She wanted to be clear that she was not speaking for her employer.

I read aloud to Weiner some of her review.

“Here’s a girl who was skiing and then she’s dead a week later, and that’s — that’s concerning,” Friebert told me. “She ate 75% of her dinner on the night she died. Her vitals were not out of whack.” Nadine should have been sent to another hospital for testing, Friebert said, because nothing definitively showed she couldn’t have been treated. It’s not clear she was going to die, Friebert said.

Weiner determined she was dying based on a test of the fluid in her lungs, which was insufficient, she said. Neither Friebert nor I could find any evidence in Nadine’s file that Weiner ordered a biopsy that confirmed terminal cancer.

Friebert uses phenobarbital to calm children as they die of disease, but she told me Weiner “was escalating the phenobarbital in a way that is way out of proportion with what I would ever have done.” The intent, she said, could not have been comfort. “These doses were obscene,” she said. “He killed her with it.”

That a respected oncologist questioned his care didn’t seem to faze Weiner. She wasn’t there, he told me, and therefore can’t make such judgments. “I completely disagree,” he said. “This is a girl that’s got — her body is riddled with cancer, and she’s in horrible pain. Now did the phenobarbital hasten her death? Yeah, it did.”

In all our conversations, Weiner insisted his intent is always to provide comfort, never to hasten death, but here he equivocated.

“Could it have shortened her life?” Weiner asked. “Yes. Again, in most of these cases, could I not give phenobarbital, and would that patient live longer? The answer is yes.” Weiner paused. “But longer in, like, hours? I mean, is that worth being in misery for those hours?”

“My goal was not to kill Nadine,” he added. “My goal was to make her comfortable.”

I had shown him the “phenobarbital cases” memo, and we’d discussed the code status changes, Scot Warwick, the narcotics and now Nadine. Finally, I had to ask, “Are you killing your patients?”

“Well, uh, no. I’m not,” he responded.

“Why did you hesitate?” I asked.

“Well,” he said. “It depends on what you mean by killing them.”

Photos of Nadine Long and her mother, Cheri Long, and father, Dan Beadle (Louise Johns, special to ProPublica)

Nadine’s parents live outside of Helena, at the end of a cattle road that curls around the peak where their daughter once played and her ashes now rest. Dan Beadle, her father, is an evidence technician for the county sheriff’s office. Her mother, Cheri Long, recently retired as an administrator at Carroll College in downtown Helena. They led me through the mudroom to the kitchen’s farmhouse table, where I asked them to recount the worst days of their lives.

While on a family vacation in New Hampshire in April 2005, Nadine was diagnosed with a Wilms tumor. She had her left kidney removed and received radiation. When the family returned to Montana, they met with Weiner, who directed her chemotherapy. During those treatments, Nadine bonded with his nurses, “the true loves of her life,” Long said. She appeared to be in remission. But a year later, the cancer reappeared in the spot where her kidney had been removed, Weiner told the family. Nadine received chemo and other treatments until about 2010, when Weiner said she was cancer free. She continued to see Weiner and his nurses for annual check-ups and more.

“Dr. Weiner always had a policy that once you’re his patient, he’s your primary physician,” Long said. “I don’t know if that’s normal.”

Nadine attended the same Catholic school as Weiner’s children. Her uniforms were hand-me-downs from his older daughter. The two families were friendly but not close. Nadine’s parents respected Weiner, although, as Long put it, he could be domineering.

Nadine also had bipolar disorder. When she was 14, a psychiatrist wrote that she struggled with information processing. He said her “insecurities, anxiety, and tendencies toward frustration when challenged dramatically interfered with her critical thinking skills.” But she was also “kind, compassionate, very empathic.”

In February 2015, Nadine’s parents noticed her hunching forward, struggling to breathe. She came to see Weiner on March 2. As with most of her visits, it lasted just a few minutes. “He listened to her lungs and said, ‘Everything’s good,’” her father recalled. “Then he tried to palpate a little bit, and she was extremely ticklish, so she started squirming around, and then at some point he goes, ‘I think we’re good to go.’”

Six days later, Nadine buckled and fell while skiing and was rushed to the St. Peter’s emergency room. Her parents were out of town when Nadine called to say: “Mommy, I’m in the hospital. My lung collapsed.” They raced to St. Peter’s, where they learned nurses had inserted a chest tube and drained her lungs of fluid, but no one would tell them more. Weiner was in New York City. For the next five days in the pediatric ward, Nadine vacillated between moments of calm and kicking and screaming, but her vitals were steady.

They felt they weren’t getting straight answers from Weiner’s backup oncologist. Long asked that Nadine be transferred to St. Jude. But as those arrangements were being made, Weiner appeared. “Finally,” Long remembered thinking, “We were like, ‘Someone who’s going to tell us the truth instead of tiptoeing around us.’”

She learned later that a St. Peter’s employee had phoned Weiner. His claim that he returned because Long called asking him to provide comfort to her daughter?

“That’s a flat-out lie,” she told me. “We did not ask for him to come home from his vacation.”

Weiner told her a large malignant mass was compressing Nadine’s lungs and would soon suffocate her. “How he described it was, ‘It’s doubling every day, and today it’s the size of a soccer ball,’” Long said.

Soon after, Weiner spoke with Nadine. “He spoke to our daughter, not to us,” Long said, “He told her, ‘You can choose the medical path or the God path.’” The conversation was “between the two of them. We were there, and he would check — he would look at us,” Long said. “Taking the God way was saying, ‘I fought my fight, and I’m ready to meet Jesus.’”

The teenager who struggled with processing information and critical thinking chose the God path. Her parents, terrified that she might needlessly suffer, didn’t object. On March 13, Nadine was changed from a full code to DNR/DNI, despite the day’s progress report that said, “She is alert and oriented, in no acute distress.” Weiner transferred her to the oncology floor.

Nadine had been heavily drugged since she’d arrived: Dilaudid, morphine, oxycodone, fentanyl. The next day, Nadine’s heart and respiratory rates elevated. She was panicking. “Saturday afternoon, she’s thrashing, she’s fighting, she can’t breathe,” Long said. Her father and a nurse couldn’t hold her down. They believed she was suffocating. The parents agreed to Weiner’s comfort measures.

Nadine’s medical file shows that he ordered a nurse to inject phenobarbital, which a computer tracked.

3:45 p.m. — 260 milligrams.

Nadine was still thrashing around. The nurse later said he was nervous about increasing the phenobarbital and called Weiner into the room. “He came in and stood there and oversaw,” Long said. “He just kept saying, ‘more, more.’”

5:26 p.m. — 390 milligrams.

It’s unclear when Nadine fell into sedation. After the initial doses, Weiner left the room.

7:47 p.m. — 390 milligrams.

Two of Weiner’s nurses who had doted on Nadine for years stayed late.

9:54 p.m. — 390 milligrams.

Relieved she was no longer in pain, her parents held on to her and each other.

1:45 a.m. — DISCHARGE.

Her heart stopped.

Nadine received 1,430 milligrams of a drug whose standard dosage for an adult is 260 milligrams. She weighed 100 pounds.

Nadine’s parents asked St. Peter’s to investigate the care she received. They wanted to know how Weiner could have missed a massive tumor a week before she died. Two months later, they met with the hospital’s director of risk management, who told them, Long said, “that he was reviewed and provided great care.”

For nine years, that answer had satisfied them. Believing Weiner had spared Nadine of pain in death, they put up a “We Stand With Doctor Weiner” sign in their yard. But now, having looked at Nadine’s medical file, they wanted to know if they had been manipulated, if she was actually terminal. Citing confidentiality laws, St. Peter’s has refused to provide the family the review, nor would it confirm to me that a review exists.

Beadle and Long with their son, Levi, on the hillside behind their home in Marysville, Montana (Louise Johns, special to ProPublica)

In August, Jesse Laslovich, the U.S. attorney for the District of Montana, and St. Peter’s announced a $10.8 million settlement for numerous violations of the False Claims Act: billing for unnecessary treatments, prescribing unneeded narcotics and more. The settlement, Laslovich said, “is not an indictment on the quality of care being provided by St. Peter’s Health as well as their doctors and their providers.”

The same day it announced the settlement, the U.S. attorney’s office sued Weiner. It accused him of getting rich by prescribing needless treatments, double billing, seeing patients more frequently than necessary and “upcoding” — billing for more expensive treatments than were delivered. The prosecutor pointed to Weiner’s enormous caseload as evidence that he had little regard for patient outcomes. Weiner’s attorney denied the allegations and has filed a motion to dismiss the case.

After the hospital reported Weiner’s narcotics practice to the DEA, the agency investigated, according to Steffan Tubbs with its Rocky Mountain field division. He told me investigators brought a potential criminal case to the U.S. attorney’s office but that prosecutors instead decided to pursue civil penalties against Weiner. A spokesperson for the U.S. attorney declined to comment.

In a press release, St. Peter’s commended itself for “acting with integrity” for alerting the DEA and laid blame on a rogue doctor. In settling, the hospital acknowledged that Weiner falsely billed multiple federal health care programs. But it did not acknowledge that his billing practices had been a constant problem and an obvious outlier for at least a decade. The prosecutor was silent on Weiner’s billing practices with private insurance.

The Montana State Supreme Court has yet to issue a ruling on Weiner’s appeal. His defamation suit against Sasich continues.

Weiner’s Montana medical license was renewed in 2023 and is set to expire in March. For now, he is free to practice medicine and prescribe drugs.

Neither the settlement nor the lawsuit against Weiner focus on the harm he exacted on countless patients. It’s unclear if any state or federal law enforcement agencies are looking into Weiner’s trail of suspicious deaths. Counting Scot Warwick, Sharon Dibble, Nadine Long and the seven documented phenobarbital cases, there are at least 10.

How We Reported This Story

J. David McSwane obtained and reviewed thousands of pages of court documents and medical records. He also obtained text messages and work emails. He visited Helena, Montana, numerous times and interviewed dozens of former patients; current and former St. Peter’s Hospital staff members; Dr. Thomas Weiner and his supporters. He tracked Weiner’s years as director of the hospital’s Cancer Treatment Center and his practice by cross-referencing those records with witness accounts. He identified more than 100 cases in which St. Peter’s staff had expressed some level of concern. He met with the families of patients who died under Weiner’s care and, in several instances, obtained HIPAA waivers so that Weiner and the hospital could speak about those cases. To get some sense of the scope of Weiner’s practice, he and data reporter Haru Coryne analyzed data published by the Centers for Medicare and Medicaid Services; they looked at billing data in the Medicare Part B program and prescribing data in the Medicare Part D program from 2013 to 2020. They shared their analysis with a data expert and CMS, which did not respond to questions. Research reporter Mollie Simon helped McSwane identify Nadine Long and provided archival material.

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

Mollie Simon and Haru Coryne contributed research and data analysis. Additional design and development by Allen Tan and Zisiga Mukulu.

by J. David McSwane

A Tribal Lender Charging 800% APR Has Agreed to Stop Operating in Minnesota

6 months ago

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up for Dispatches, a newsletter that spotlights wrongdoing around the country, to receive our stories in your inbox every week.

A new settlement that will end a payday-like loan operation in Minnesota puts additional pressure on a Native American tribe that has been on the defensive for its high borrowing rates across the country.

The Lac du Flambeau Band of Lake Superior Chippewa Indians has been telling customers that its practices are allowable, but that stance has become harder to maintain. Shortly before Thanksgiving, the Wisconsin tribe agreed to settle a civil suit filed by Minnesota Attorney General Keith Ellison alleging that LDF broke state law, which requires reasonable lending rates, by charging Minnesotans between 200% and 800% annual interest. The state also claimed LDF had violated statutes on consumer fraud, deceptive trade and false advertising.

In the consent decree, LDF’s top official denied the allegations but formally agreed to stop lending to people in Minnesota unless the tribe adheres to the state’s strict usury laws and other regulations, including licensing requirements.

Tribal Council President John Johnson Sr., the lone defendant in the case, also promised that the tribe’s lending arm would forgive all outstanding loans to Minnesotans, estimated to be worth more than $1 million. A judge must still approve the consent agreement.

“I will not allow Minnesotans to be exploited by predatory lenders,” Ellison said in a press release announcing the settlement.

Johnson did not return calls or emails seeking comment. He is board president of the LDF Business Development Corp., which runs a variety of tribal companies, including its lending operation.

Previously, Johnson has said LDF’s lending practices are transparent and its collection methods are fair and ethical. “In offering unsecured loans, we consciously embrace the risk involved, reflecting our commitment to aid those facing urgent financial needs,” Johnson said in an April email to ProPublica.

The move by Minnesota to cut off lending companies controlled by LDF comes shortly after ProPublica reported extensively in August and September on LDF’s loan operations, finding that over the past decade, the tribe has grown to become one of the leading players in the tribal lending industry. Its loans contribute to the debt people shoulder throughout the country. A ProPublica analysis found companies owned by the LDF tribe showed up as a creditor in roughly 1 out of every 100 bankruptcy cases sampled nationwide.

The Minnesota attorney general’s office reported in its federal court filing that the state had received many consumer complaints about LDF Holdings, the tribe’s lending arm, that described extreme hardship caused by “continuing demands for payment of excessive interest.”

It gave the example of a Burnsville resident who took out a $1,398 loan from the LDF company Lendumo in December 2023 at an annual percentage rate of 795%. The loan snowballed to $8,593.

After Minnesota authorities reached out to LDF on behalf of the borrower, LDF argued that the loan was legal and not subject to state law, but Lendumo resolved the complaint “as a courtesy” — though not before demanding an additional $389, court records state.

“These are the highest, most nefarious APRs that we see,” said Anne Leland Clark, executive director of Exodus Lending, a nonprofit in Minnesota that refinances payday loans for borrowers using tax dollars and private donations. About a quarter of the loans they have refinanced since 2015 are tribal loans, she said.

This summer, in a class-action lawsuit out of Virginia, tribal council leaders agreed to a landmark settlement that cancels $1.4 billion in outstanding loans nationwide and provides $37.4 million in restitution and attorney fees. LDF officials will pay $2 million of that, while the remainder is to be paid by nontribal partners involved in five of the tribe’s lending firms. A final approval hearing is scheduled for Dec. 13.

Despite the national settlement and the action in Minnesota, Johnson has not signaled that the tribe will exit the lucrative lending business or alter its practices. ProPublica previously determined that LDF entered the loan business in 2012 and set up at least two dozen lending companies and websites, some of which remain active today.

LDF works with outside firms to operate businesses offering short-term installment loans. Unlike traditional payday loans, these are not due by the next pay period; typically, they are repaid over months in installments via automatic bank deductions.

One defunct website associated with LDF, Lendgreen, was the subject of a 2023 U.S. Supreme Court ruling that held that tribes must abide by the U.S. Bankruptcy Code, including provisions protecting debtors from continued collection efforts and harassment during the restructuring process.

Only a few dozen of the country’s 574 federally recognized tribes engage in online lending. Those that do often see it as an economic boon for their community, bringing in much-needed revenue for tribal government operations, which have limited options for expansion in their often-remote areas of the country.

LDF grew its footprint, ProPublica found, by partnering with multiple outside managers and financiers. Revenue data is not public, but historically, in the tribal lending model of payday lending, these outsiders have taken the lion’s share of the profits, according to lawsuits.

Lac du Flambeau Tribal President John Johnson Sr., the lone defendant in Minnesota’s suit over the tribe’s lending practices (Angela Major/WPR)

In a prior email to ProPublica, Johnson described LDF’s lending operation as an engine for community improvement. “The importance of our business extends far beyond simple economics; it is interwoven with the very fabric of our community, supporting a myriad of vital services,” Johnson wrote.

LDF and other tribal lenders contend that they are able to offer loans at exorbitant rates because of Native American tribes’ sovereign rights and immunities.

LDF’s loan documents have included provisions waiving Minnesota law, according to the state’s lawsuit, and improperly limited consumers’ rights to challenge repayment demands, falsely claiming Minnesota law doesn’t apply because of sovereign immunity.

The attorney general’s office also cited a letter from LDF Holdings to a borrower that stated: “the loan is not subject to state law and the [LDF lender] is not required to be licensed with any state. Your loan is legal.”

The tribe has stressed that it follows tribal law and federal law, which has no interest rate cap except for active-duty military members and their families.

States are not powerless, however, to address the issue.

Courts have ruled that while states cannot pursue tribes for monetary damages, they can sue the executives in charge and obtain injunctions stopping future harm.

“The truth is that out-of-state businesses and businesses incorporated under the laws of other sovereigns must comply with Minnesota law when transacting business in Minnesota,” Ellison wrote.

The LDF settlement is the second enforcement action by Ellison directed at tribal lenders operating in Minnesota.

In February, his office obtained a settlement agreement with top lending executives of the Fort Belknap Indian Community in Montana. It, too, bars the tribe — which denied any wrongdoing — from making future loans in Minnesota. Calling itself an industry leader, the Fort Belknap operation revealed in an annual report that it had processed more than 300,000 loans nationwide in 2021. The tribe’s economic development arm, which legal filings show gets most of its revenue from lending, reported more than $180 million in revenue that year.

In an interview with ProPublica in March, Ellison said other states with strong usury laws could follow Minnesota’s lead. “I hope other states do look at what we did and take note.” He declined to be interviewed for this story.

Minnesota strengthened its usury laws with legislation that took effect in January 2024 governing small-dollar loans. It eliminated a sliding scale of set fees and imposed a stricter APR cap: 36% in many instances, but 50% for licensed lenders that conduct an analysis on whether a borrower can repay.

Johnson told the attorney general’s office that the tribe had stopped originating new loans to Minnesotans as of Dec. 31, 2023, a day before the law took effect, according to the consent decree.

by Megan O’Matz and Joel Jacobs

Missouri Voters Enshrined Abortion Rights. GOP Lawmakers Are Already Working to Roll Them Back.

6 months ago

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up for Dispatches, a newsletter that spotlights wrongdoing around the country, to receive our stories in your inbox every week.

One month after Missouri voters approved a constitutional amendment guaranteeing the right to abortion, Republican lawmakers in the deeply red state are already working to overturn it — or at least undermine it.

One measure would ask voters to amend the state constitution to define life as beginning at conception, declaring that embryos are people with rights to life, liberty and the pursuit of happiness.

The result would be to classify abortion as an unlawful killing.

Another proposal, aimed at repealing the abortion rights amendment, would ask voters to ban gender transition procedures for minors, tying the two issues together, despite the fact that the amendment did not address gender surgery and gender-affirming care for transgender children is already illegal in Missouri.

Other proposed amendments include stricter abortion limits, such as restricting access to cases of rape, incest, medical emergencies and fetal anomalies. These measures would impose additional requirements, such as mandating that rape survivors file police reports to obtain an abortion.

GOP lawmakers have also introduced a measure to raise the threshold for amending the state constitution through voter initiatives, which could make it harder to pass similar measures in the future.

The legislative moves follow the Nov. 5 election, in which the amendment to put abortion rights in the state constitution won by a 51.6%-48.4% margin. Starting Thursday, the right to abortion will be constitutionally guaranteed up to the point of fetal viability, while restrictions on post-viability abortions will remain in place.

In other states where voters approved abortion rights measures last month, there were no signs yet that lawmakers would also try to counter those measures.

Even before votes in Missouri had been counted, proponents of Amendment 3, as the measure was called, had anticipated that a victory would be met with efforts to somehow undercut abortion rights.

“These people will continue to rail against abortion,” said state Rep. Deb Lavender, a Democrat from the St. Louis suburbs.

Although Missouri already has a law recognizing life as beginning at conception, stating that unborn children have “protectable interests in life, health, and well-being,” the proposed constitutional amendment would go further. It would effectively elevate this principle to the state constitution and potentially complicate not only abortion rights but the legality of in vitro fertilization and the handling of embryos.

Several states have laws recognizing fetal personhood, but Missouri would be the second — after Alabama — to enshrine it in its constitution. That could create legal and ideological confusion or even conflicts, experts say.

“You could see voters saying, ‘I support a right to abortion,’ but also saying, ‘Life begins at conception,’ without understanding that you can’t have both of those things at the same time,” said Jamille Fields Allsbrook, a professor at St. Louis University School of Law and a former policy analyst for Planned Parenthood Federation of America.

The author of one of the personhood measures, Rep. Justin Sparks, a Republican from the St. Louis suburbs, said he was emboldened by the narrow margin of the abortion rights vote.

“A clear mandate has not been achieved,” he said. While the amendment had strong support in metro St. Louis and Kansas City and in the county that’s home to the University of Missouri, “the vast majority of the rest of the state voted in a different direction,” he added. “So I think it’s fair to again bring the question up.”

But state Sen. Tracy McCreery, a Democrat also from the St. Louis suburbs, noted that Sparks was going against the will of voters in the St. Louis area. “I find that even more disrespectful of the voters,” she said. “It wasn’t just voters that tend to vote Democratic that voted yes on Amendment 3. It was also Republican voters and independent voters, and I think that’s getting lost in this discussion.”

The measure to link abortion and transgender rights reflects the campaign before the election, when abortion opponents conflated these topics. Critics said this strategy seeks to distract from abortion rights, which had strong voter support, by capitalizing on voter discomfort with transgender issues.

While GOP lawmakers push these measures, the legal landscape around abortion in Missouri is already shifting. On Wednesday, a Jackson County Circuit Court heard arguments in a lawsuit brought by Planned Parenthood and the American Civil Liberties Union of Missouri that seeks to strike down Missouri’s near-total abortion ban and other laws that regulate abortion. The lawsuit followed the passage of Amendment 3. Planned Parenthood said if it wins in court it plans to resume abortion services in St. Louis, Kansas City and Columbia on Friday.

Missouri Attorney General Andrew Bailey has acknowledged that the amendment will legalize most abortions when it goes into effect, but he has said he intends to enforce remaining restrictions, such as a ban on abortions after fetal viability, a 72-hour waiting period and parental consent for minors.

Lawmakers are also pushing to raise the bar for passing constitutional amendments. Now, a simple majority is enough; that has allowed Missouri voters to bypass the legislature and pass progressive amendments that lawmakers oppose. A new bill would ask voters to pass a constitutional amendment requiring not just a statewide majority but also a majority of voters in five of the state’s eight congressional districts — a change critics argued would give disproportionate power to rural areas over urban voters. It would then be harder for voters to approve measures that don’t align with the priorities of the conservative politicians they tend to elect.

Earlier this year, a similar effort to make it harder to amend the constitution failed after Democrats in the Senate filibustered it.

Sparks criticized the Republican leadership in the General Assembly for allowing the failure, pointing to a Republican supermajority in both houses that could have passed the measure.

“We hold all the power,” Sparks said. “We hold all the procedural levers of power, and we can shut down debate in both houses any time, any day, for any bill we choose to.”

Florida shows how a higher threshold for voter initiatives might play out. In 2006, the state raised the bar for constitutional amendments to 60%. This year, a majority of voters — 57% — supported an abortion rights amendment, an even bigger margin than in Missouri, but not sufficient in Florida.

It’s not clear yet, though, whether any of the measures have enough support in Missouri’s General Assembly.

Lavender said that the campaign supporting abortion rights significantly outraised its opposition during the election. “It’s going to be difficult to overturn,” she said. “You’ll have the same money that supported it now going up against you.”

by Jeremy Kohler

If Trump Makes Cuts to Medicaid, Texas Officials Could Seize the Opportunity to Further Slash the Program

6 months ago

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Texas leaders have shown a decadeslong antipathy toward Medicaid, the federal-state health insurance program that covers millions of low-income and vulnerable residents.

They declined additional federal money that, under the Affordable Care Act, would have allowed Medicaid to offer health care coverage to more low-income families. The state was among the last to insure women for an entire year after they gave birth. And when the federal government last year ended a policy that required states to keep people on their Medicaid rolls during the coronavirus pandemic, Texas officials rushed to kick off those they deemed ineligible, ignoring persistent warnings that the speedy process could lead to some people being wrongfully removed.

Come January, when Donald Trump assumes the presidency for the second time, Texas leaders could get another opportunity to whittle down the program — this time with fewer constraints.

Trump has not shared any plans to cut Medicaid, which covers about 80 million Americans, and his campaign did not respond to requests for comment. Health care advocates and experts, however, say that his past efforts to scale back the program, as well as positions taken by conservative groups and Republican lawmakers who back him, indicate that it would likely be a target for severe reductions.

“We expect the Republicans to move very quickly to cut Medicaid dramatically and indeed end its guarantee of coverage as it exists today,” said Joan Alker, executive director of Georgetown University’s Center for Children and Families in Washington, D.C.

Currently, the federal government picks up, on average, nearly 70% of Medicaid spending, with states assuming the remaining costs. (A state’s share varies based mostly on what percentage of its residents are impoverished.) Any decisions to cut federal spending would likely lead states to shrink the number of people they deem eligible and the care that enrollees are entitled to receive, Alker and other experts said.

That would be particularly devastating in Texas, which already has one of the country’s lowest percentages of residents covered through Medicaid and where officials lack the political will to make up the difference in funding with state money, experts say. Parents with two children, for example, must earn less than $285 monthly to qualify for Medicaid for themselves.

“Our elected officials would have to decide whether they want to cut health care for pregnant women, kids, people with disabilities, or seniors because that is essentially who Medicaid covers in Texas,” Adriana Kohler, a policy director for Texans Care for Children, a statewide nonprofit that advocates for families, said in a statement.

Spokespeople for Gov. Greg Abbott, a Republican, and the state’s Health and Human Services Commission did not respond to repeated requests for comment. During Abbott’s prior role as the state’s attorney general, he helped to lead a successful lawsuit against the federal government, ensuring that states did not risk losing Medicaid funding entirely if they didn’t want to cover more residents as part of the Affordable Care Act.

Even when Texas does offer Medicaid coverage to its most vulnerable residents, state officials enabled a system that creates often insurmountable barriers to receiving care. A 2018 Dallas Morning News investigation found that some of the insurance companies Texas hired to administer Medicaid benefits systematically denied expensive and, at times, life-saving treatments to bolster profits. Critics say problems with the system persist despite legislative reforms spurred by that series of stories.

Texas insures more than 4 million residents through Medicaid, which amounts to a smaller percentage of its total population than almost any other state. But given its sheer size, the state still covers the third most people in the nation, behind only California and New York. The program provides health care for 3 in 8 children, 3 in 5 nursing home residents and 2 in 7 people with disabilities in Texas, according to KFF, a national health policy research organization. It is the top funder for nursing homes and long-term care services for the disabled and elderly, and it pays for nearly half of all births in the state.

Michael Morgan, a 75-year-old retired nurse who lives in Fort Worth, is among those who worry that if Trump caps or cuts the amount of money the federal government spends on Medicaid, the state could make it even harder to get coverage for his daughter Hannah. She has Down syndrome and schizencephaly, a brain malformation, and she is deaf and partially blind, she doesn’t speak, and she needs assistance to walk and eat.

Morgan is depleting his limited savings to pay for Hannah’s health care expenses after she lost Medicaid coverage earlier this year when she turned 19. He submitted a new application for her in May — she should qualify for Medicaid because of her disabilities. State officials denied her coverage in November, arguing that Morgan did not meet the deadline to return a form providing his consent for the agency to access his daughter’s medical and financial records. Morgan, who plans to appeal the denial, said in an interview that he received the form a day before the deadline.

“I don’t know how much more they can cut it,” he said of Medicaid in Texas.

During his first term, Trump tried unsuccessfully to repeal the Affordable Care Act, which provides health coverage to 45 million Americans. His administration also repeatedly supported spending caps for Medicaid, including block grants that would give states a fixed amount of federal funding, no matter how many people needed the insurance or how much their health care cost. Currently, Medicaid covers all people who qualify, no matter the expense.

While those efforts did not significantly advance during Trump’s first term, Republicans will hold majorities in both the House and the Senate come January, and they have signaled an openness to impose caps on spending and establish requirements that most adults in the program hold jobs. They argue that Medicaid spending is unsustainable and that the program is susceptible to waste, fraud and abuse.

Republicans who have supported such measures include U.S. Sen. John Cornyn and U.S. Rep. Jodey Arrington, a Lubbock Republican who leads the House Budget Committee.

GOP policy primers — including Project 2025, published by the conservative think tank The Heritage Foundation, and one from the Republican Study Committee, a conservative congressional caucus — have also called for cutting Medicaid.

Arrington, whose spokespeople did not respond to repeated requests for an interview, told reporters last month that he supported a “responsible and reasonable work requirement.” Harvard University health professors who studied a previous work mandate in Arkansas that Trump allowed during his first term found that most adults using Medicaid were already employed or qualified for an exemption, but thousands of residents still lost health care, at least in part because of the onerous process of continuously proving their eligibility.

This is not the first time Arrington has pushed work requirements and sought to lower the share of health care costs that the federal government pays to states. He previously proposed cutting federal Medicaid spending by more than a quarter, or $1.9 trillion.

Cornyn, whose spokespeople also repeatedly declined to comment, said last month that he would not support cuts to Medicare, the federal health insurance program for seniors and the disabled, or to Social Security. Still, he suggested that Medicaid cuts were on the table.

“We can’t just keep doing things the way we’ve been doing them,” Cornyn told Politico Pro, adding that “block grants make a lot of sense.”

William T. Smith, a 65-year-old retired construction worker who lives along the U.S.-Mexico border in Brownsville, said that he voted for Trump partly because he agrees that “there’s too much fat” and supports cutting some federal programs.

Smith has chronic obstructive pulmonary disease, which affects his lungs and makes it difficult to breathe. He said he also has bipolar disorder, sleep apnea and chronic pain after decades of performing manual labor.

Smith said Medicaid, which he has been trying to get since the summer, should not be where the federal government looks to reduce expenses. Instead, he said, the federal government should take savings from cutting other programs and put the money toward more people’s care.

“I don’t think they’re going to yank health care away from people,” he said. “If they do, I’d be really angry.”

Caught in Texas’ Medicaid and Food Stamp Application Backlog? Know Someone Who Is? Help Us Report.

Dan Keemahill contributed reporting.

by Lomi Kriel and Jessica Priest

Check the Formaldehyde Cancer Risk in Your Neighborhood

6 months ago

Formaldehyde causes more cancer than any other toxic chemical in the air. It’s emitted from cars, trucks, planes, industrial facilities and many other sources. It’s also formed in the atmosphere when other chemicals combine in the presence of sunlight. Even if you don’t live in a high-traffic area or an industrial zone, the geography and climate of your area could increase your cancer risk from formaldehyde because of this so-called “secondary formation.”

ProPublica is releasing a lookup tool that allows anyone in the country to understand their outdoor risk from formaldehyde. Search for your address to see risks from the chemical on your block and where it comes from.

by Al Shaw and Sharon Lerner