ProPublica

by Jake Pearson

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Three decades ago, New York’s guardianship system was in desperate need of an overhaul.

Investigators had found that the legal arrangements, which were supposed to protect people who could not care for themselves, had actually deprived individuals of their rights and were poorly monitored, enabling guardians to abuse, neglect and defraud those under their care. In response, state lawmakers passed progressive legislation to codify wards’ civil liberties and safeguard their welfare.

But just five years into the new statute, known as Article 81 of the Mental Hygiene Law, the judges overseeing the system noticed it was insufficient to protect the “unbefriended,” those who have nobody else to help them and little or no money to their name. For them, the state relied on a patchwork system of loosely regulated nonprofits and private attorneys who take the cases pro bono. The setup, judges found, was straining to meet the crushing demand for services.

Charles Devlin, at the time a judge overseeing guardianship cases in Westchester County, traveled to the state capital to lobby for the members of this largely invisible constituency, who are often tucked away in nursing homes and other facilities, far from public view. Specifically, he advocated for the creation of a role of public guardian, a state-funded entity to care for New York’s most vulnerable.

The meetings didn’t go well. “New York state was not interested,” Devlin recalled in an interview. “They said, ‘Nope, sorry, goodbye.’”

In the years since, others have made similar trips, sounding alarms about New York’s overtaxed guardianship system, which now covers 28,600 people statewide — 60% of whom live in New York City. But state lawmakers have done little in response.

Today the system is in shambles, a ProPublica investigation published earlier this month found. There are not enough guardians to serve the needs of the “unbefriended,” nor are there enough overseers to check guardians’ work. And the quality of the care provided by the groups that do cater to this vulnerable population can be shockingly poor.

For example, the organization featured in the ProPublica report, New York Guardianship Services, placed one of its wards in a dilapidated, rat-infested Queens home for years, often without heat, taking $450 a month from her meager income as compensation while ignoring her complaints, according to interviews and internal records. She was one of about 400 wards who relied on the company to manage their financial and personal affairs. A company executive said he couldn’t answer questions about any specific ward, adding in a statement that NYGS is “accountable to the Court and our annual accounts and reports are scrutinized by Court appointed examiners and any issues would be addressed.” He also said our story was inaccurate but provided no details.

Experts say there are fixes policymakers can and should make to close the gap between Article 81’s promise and its practice. Here are six.

Public Financing for Guardians

As Arthur Diamond, then the supervising guardianship judge in Nassau County, bluntly put it to lawmakers in 2018: “It’s very, very sad that the state of New York has not been able to find a way to take care of this population.”

Following the roundtable where Diamond spoke, the state Legislature awarded Nassau and Suffolk counties $250,000 each to run pilot programs to find guardians for those without the means to pay for them. But the funding wasn’t renewed, and the state has not established a dedicated financing stream to cover the costs of guardianships for thousands of poor New Yorkers. Meanwhile, two of the organizations in the small nonprofit network that serves as the backbone of the system abruptly shuttered due to financial hardship.

Guardianship Access New York, a coalition of nonprofits that’s seeking to improve guardianships, has proposed that the Legislature secure $15 million annually “in sustained funding that would comprehensively support guardianship services statewide.” Advocates say those guardians don’t have to be lawyers, as traditionally has been the case, and should include social workers and other specialists familiar with the needs of the elderly and infirm.

Others have argued for the creation and funding of a separate public entity tasked with serving wards who have little or no money and nobody else to look after them. Some states, including Illinois and Delaware, have such an office, though experts warn they’re no panacea and without proper support and oversight can fail wards as easily as any other guardian can.

Bolstering the Regulatory Ranks

Prior to a small bump in 2019, examiner pay hadn’t been increased in 14 years, resulting in thin ranks of reviewers to ensure proper oversight of guardians. Lawyers make just a few hundred dollars per case annually — a feeble payday that they say isn’t worth the effort.

A recent judicial guardianship task force report has recommended a pay raise for examiners so that the courts can recruit an adequate bench. Today New York City has only 157 examiners to monitor the care and finances of more than 17,000 wards.

Experts say the system needs more court clerks too. These workers play a key role in the oversight process, reviewing examiners’ reports before passing them up to judges, who ultimately sign off on the paperwork. But Diamond and others have said that deep budget cuts to the courts from more than a decade ago drastically reduced the ranks of these employees. More than 400 people — including clerks — were laid off following state budget cuts in 2011. This funding, they said, should be restored.

Finally, Diamond said, judges could be more proactive about monitoring case activity, scheduling regular compliance conferences so that guardians and examiners are forced to explain to the court what accounts for delays in completing their reports.

Strengthening the Examination Process

Though Article 81 requires guardians to file wards’ annual financial accounts by May of the following year, there is no such deadline for examiners. In practice, that means that accounts of wards can — and do — go years without any kind of examination. In the case we featured in our investigation, we found the ward’s file was missing reviews for four whole years, during which time she faced horrendous living conditions and the threat of eviction. The examiner did not respond to questions about the missing reports for that period.

Our review also found that examiners tend to focus almost exclusively on financial paperwork when determining the care and condition of wards. They rarely, if ever, see wards in person.

Experts say that requiring face-to-face check-ins can prevent guardians from hiding horrific situations and that judicial leaders tasked with appointing and overseeing examiners should require such visits. That’s what happens in Davidson County, Tennessee, which includes Nashville: Social services workers there visit wards, review their medical records and interview guardians and their doctors.

Mandating More Training for Guardians

Only ten states nationwide require professional guardians to be certified by the Center for Guardianship Certification, the only national group of its kind. A handful of other states require guardians to be licensed by state agencies, in the same way as plumbers, barbers and other skilled professions.

New York requires neither. Under Article 81, prospective guardians need only take a daylong course to get certified.

Advocates say the state should mandate more stringent training. Guardians should also be required to take regular refresher courses, just as lawyers are, experts say.

Vetting Nonprofit Providers

Once certified, private guardians are required to attest that they haven’t been found to have violated any criminal, civil or professional rules. Nonprofits, however, undergo no such vetting. In fact, they are not even required to provide proof of their charitable status.

That’s a critical gap in oversight given the outsized role nonprofit organizations currently play in caring for the unbefriended.

In our investigation, we found that NYGS repeatedly represented itself as a nonprofit in its court filings and promotional material as it took on more and more cases. Yet authorities told us that the organization is not registered as a charity with the state attorney general’s office nor does it have tax-exempt status from the Internal Revenue Service.

Sam Blau, NYGS’ chief financial officer, declined to answer questions about the company’s tax status, but said in a statement that “a large percentage of our cases are done completely Pro Bono,” which “is certainly in line with our mission to help people of minimal financial means.”

Policing the nonprofit sector is critical, experts say, especially since charitable organizations are exempt from court rules that cap the number of cases and the amount of compensation guardians can receive annually.

Issuing Guidance for Proper Staffing

One of the key indicators of a failing guardianship system involves caseloads that are higher than a 20:1 ratio of wards to staffers, according to a recent report by the country’s premier guardianship researchers. Some states, like Colorado and Virginia, recommend such a cap. But New York offers no guidance.

At New York Guardianship Services, the group ProPublica featured in its report this month, the ward-to-staff ratio has topped 83:1. One worker who was responsible for dozens of wards every day said she quit after six months because she couldn’t keep up with the unrelenting needs of the company’s clients. NYGS did not respond to questions about its caseloads.

Caseload caps, experts say, would improve services and help states more easily identify potential guardianship abuse.

by Paige Pfleger, WPLN/Nashville Public Radio

This article was produced for ProPublica’s Local Reporting Network in partnership with_ WPLN/Nashville Public Radio_. Sign up for Dispatches to get stories like this one as soon as they are published.

The commissioner of the Tennessee Department of Children’s Services publicly said this month that the agency was working with lawmakers to address oversight gaps at juvenile detention facilities across the state. But behind the scenes, the department is working to water down a bill that would do just that, according to one of the bill’s sponsors and others working on the legislation.

Last year, an investigation by WPLN and ProPublica revealed that the Richard L. Bean Juvenile Service Center in Knoxville was illegally locking children alone in cells and that the facility had faced few consequences even as DCS repeatedly documented violations.

In response, one Democratic and two Republican state lawmakers drafted proposed legislation that would give an independent state agency the power to require changes at facilities that violate state standards, effectively forcing DCS to act.

As it stands, DCS inspects and writes reports on youth detention centers across the state. If inspectors document persistent problems, DCS says, it can freeze or slow admissions, decrease capacity or refuse to approve a license. DCS said it has used those interventions at other facilities but never at the Bean Center.

DCS is pushing for different language that would strip the independent agency from having enforcement power and leave DCS in charge of deciding how to respond to problems.

The bill is scheduled for discussion in both the Tennessee House and Senate on Tuesday.

DCS declined to comment on the legislation but said it is working to address the problems at the Bean Center.

WPLN and ProPublica found that inspectors documented that the Bean Center had been improperly using solitary confinement for years. While DCS noted the violations in its reports, the department failed to effectively intervene. DCS says it cannot revoke the Bean Center’s license, but it has not approved its renewal either.

“The Bean Center has been in a nonapproved status for quite some time,” DCS Commissioner Margie Quin told lawmakers in a hearing this month. “We're in that facility on a quarterly basis and continue to work with them.”

But some Tennessee lawmakers and child welfare advocates say it’s not enough to simply document that a facility is out of compliance with state standards. In a letter in November, 14 Democratic lawmakers called on DCS to intervene at the Bean Center and called for the superintendent and namesake of the facility, Richard L. Bean, to lose his job.

Bean did not respond to a request for comment.

“Why is there no accountability, and why isn’t there any attempt to remedy that?” asked state Sen. Heidi Campbell, D-Nashville, one of the sponsors of the bill. She said in the past DCS has improved with oversight. “But right now, there’s nothing,” she said. “It’s just the wild, wild west.”

Despite acknowledging the ongoing problems inside the facility, DCS continues to contract with the Bean Center to place children there, paying about $175 per day per kid.

“Although the facility is not currently in an approved status, there is nothing to indicate conditions at the facility are unsafe,” Ashley Zarach, DCS communications director, said in an emailed statement. DCS said the Bean Center is no longer using seclusion and that its current violations are largely clerical. “We are holding approval to ensure the facility updates its policy and schedules an annual fire inspection,” Zarach said.

But that arrangement is part of the reason lawmakers like Campbell want a third party involved. In the time DCS has been licensing juvenile detention centers in the state, it said, it has never terminated a license.

The original draft of the bill gave enforcement powers to the ombudsman at the independent state agency, the Tennessee Commission on Children and Youth. The ombudsman’s office has existed since 1996 to respond to individual complaints about DCS, but it does not have enforcement power. The commission already has access to juvenile detention centers to monitor federal standards but not state standards.

Kylie Graves, policy director at the commission, declined to comment on the bill, saying, “We are going to let the General Assembly go through the legislative process.”

If a facility is in violation and doesn’t follow the ombudsman’s recommendations, the original draft would force DCS to suspend the facility’s license or, for detention centers like Bean’s, stop placing kids there until the violations are fixed.

But those enforcement mechanisms are no longer included in the DCS version.

Instead, the ombudsman would notify the facility of the problems, and if the facility doesn’t comply within a year, DCS would be notified in writing. Then “the department shall provide the ombudsman with an update on actions taken to remedy the findings by December 1, 2025, and annually thereafter,” the agency’s amendment says.

“If you de-fang it enough, you’re not going to have a useful piece of legislation,” Campbell said.

The DCS version does not detail what exactly would happen after that to a facility that is routinely out of compliance, as the Bean Center was. But it would require the ombudsman to report violations publicly to the General Assembly on a regular basis, offering some public accountability.

State Sen. Kerry Roberts, a Republican sponsor of the bill, said he is not surprised that a state agency would push back against oversight legislation of this size and scope.

“DCS is probably arguing right now, ‘Hey, a little bit of flexibility for us is a good thing,’” Roberts said. “And I think some legislators are looking at it and say, ‘Well, we're not sure that we agree with that, because we want to know that certain standards are being met in every situation.’”

Campbell said incremental progress is better than nothing.

“I would love to have a much stronger way to approach this,” she said, “but that having been said, as we say all the time around here, let’s not let the perfect be the enemy of the good.”

by Nicole Santa Cruz

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.

Aleatha Child struggled to keep her Brigham City, Utah, day care open after federal funding meant to mitigate the effects of the COVID-19 pandemic ended last September. She raised the fees she charged families and let an employee go.

She put some hope in the Utah legislative session. But instead of providing day cares like hers with more money, lawmakers expanded a child tax credit in a bill that also allows unlicensed care providers to take in more children.

Child concluded that her child care license could soon be useless and decided her day care will close at the end of the month.

“I’ve thought long and hard about this, I love this job and love my families but this is what’s best for my family and they come first,” she wrote in a social media post in mid-February.

Utah’s Republican-dominated Legislature adjourned this month after passing a record 591 bills during its session. Lawmakers earmarked nearly $2 billion in tax subsidies to build an MLB stadium and an NHL arena. They doubled funding for the state’s school voucher program. And they cut the income tax rate.

But they made no direct financial investment in child care, despite the end of federal pandemic relief, which since 2020 had sent nearly $574 million to Utah’s Office of Child Care for various programs.

The bill that lawmakers passed loosens regulations on unlicensed care for the second time in two years by increasing the number of children a provider can care for in their home from six to eight, if none of them are related to the caregiver. (There’s a cap of 10 total kids if some of them are related to the provider.) No more than two of them can be under 3 years old.

Some parents and providers criticized that move as potentially unsafe. In response, lawmakers added a background check requirement for all unlicensed providers, but it’s unclear how that will be enforced.

“We have two problems with child care that we hear about a lot,” Rep. Susan Pulsipher, a Republican, told a House committee. “One is the cost and one is capacity.” The tax credit could help with the cost, she said, and unlicensed providers caring for more children could boost capacity. The new rules are “a tool” that will give parents more choices. She said parents can ask about background checks and any training unlicensed providers might have received.

But licensed providers told ProPublica that the legislation devalues the licenses obtained by in-home care providers whose homes are inspected, who obtain CPR and first-aid training, and who abide by rules such as checking on babies while they’re sleeping.

The new bill, which takes effect May 1, will make Utah one of the most lenient states toward unlicensed child care. Only South Dakota allows more children in an unlicensed day care — up to 12 — according to research into state child care plans compiled by the Committee for Economic Development, a nonpartisan group of business leaders.

Bill Cosgrove, a retired pediatrician and advocate for early childhood education, said in an interview with ProPublica that leaving so many children in the care of one adult can hamper their development.

“It’s the definition of neglect,” said Cosgrove, who testified in Senate and House hearings on the bill.

Child care advocates, parents and providers asked Gov. Spencer Cox, a Republican, to veto the bill, but Cox signed it March 14.

A recent investigation by ProPublica found that though Utah bills itself as the most “family friendly” state in the nation, it does too little to ensure that care for children of working parents is accessible and affordable. Numerous researchers have detailed the lack of available child care in the state. A 2020 report by the state’s Office of Child Care found that Utah’s child care capacity was meeting only 35% of its needs. A 2018 analysis found that a larger proportion of people in Utah live in areas with few or no licensed child care facilities than in any other state.

After the state received the federal relief funding in 2020 and 2021, the number of licensed child care slots rose by about 30% over two years, according to a report by Voices for Utah Children, a children’s advocacy group.

In January, nonprofits, businesses and child care providers penned an open letter to lawmakers asking them to invest in child care. “Without government investment, families are left with low-quality options that endanger children, and disincentivize providers. We are calling on the Utah Legislature to invest more dollars into the childcare industry. With cross sector collaboration between business, the philanthropic community, and government entities, we can address this crisis and become a model for the nation,” they stated in the letter.

After months of financial struggles, Child plans to close her home day care. (Sarahbeth Maney/ProPublica)

House Speaker Mike Schultz, a Republican, told reporters in February that funding should be part of Utah’s solution to the child care crisis, but it wasn’t lawmakers’ first priority.

“We have to focus on the supply, and then you can focus on the funding,” Schultz said.

Proponents of the bill said that it offers more choices for parents. Nicholeen Peck, president of the Worldwide Organization for Women, a conservative faith-based group, testified in favor of the legislation. Peck said that her mother cared for five children on her own. The bill would allow someone like her mother to potentially care for five more, which is “not that many.”

“I think it also opens the door for really great people in the community to be able to offer their services more so that people don’t have to be just randomly dropping their children off at somebody that they don’t know,” she said.

At least one study shows the bill is likely to be ineffective at boosting supply. According to an August 2022 policy brief by the National Association for the Education of Young Children, a nonprofit that represents educators and issues accreditations, there’s no correlation between regulations and child care supply. “Efforts to loosen regulations, driven by a goal of increasing supply and program revenue, will actually have the opposite effect by driving educator burnout and turnover even higher,” according to the policy brief.

“It’s already a stressful job,” said Anna Lovejoy, acting senior director for early childhood policy at the Center for American Progress, a left-leaning public policy group that worked on the brief. “So when you add more children to the mix, it actually can lower morale and increase provider turnover, which is not good for quality because you need those stable and consistent relationships with caring adults to support the children’s development.”

Utah’s Department of Health and Human Services, which oversees licensing and background checks, said in a statement that it is “working through the details” on how to administer the required background checks.

Enforcing the requirement will be difficult unless there’s a “tattletale system,” said Jamie Bitton, the owner of a child care center in Ogden, Utah, and the president of the Utah Private Child Care Association. “There’s no minimum safety precautions for someone just to babysit children in their homes,” she said. “And it’s scary.”

Child, the day care operator who is closing her business, said as a licensed provider she’s been subject to announced and unannounced visits by state inspectors. And she’s taken numerous trainings on child development in order to maintain her license.

“They’re trying to solve a problem, but I feel like they’re going to make it worse,” Child said. “We can live without stadiums, but as long as we have children and need to work, we cannot live without child care.”

Correction

March 19, 2024: The story overstated the number of children South Dakota allows in unlicensed day cares. The state allows up to 12 children in such day cares, not 13.

by Rob Davis

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.

Oregon state Sen. Elizabeth Steiner seemed to have a lot of power and momentum behind her effort that would have shifted the costs of wildland firefighting further onto taxpayers this year.

The influential timber industry, which stood to save millions and is a major source of campaign cash in the state, worked behind closed doors to help craft Steiner’s proposal. Republican leaders threw their support behind it. Gov. Tina Kotek, whose staff assisted in the bill’s development, also came out in favor.

But there was fallout from the effort. Media reports noted the industry’s central role in shaping the bill. Steiner, a Democrat running for state treasurer, drew a primary challenge from another Democratic state senator, Jeff Golden, who had offered a competing bill to fund wildfire preparedness and other services by raising taxes on logging. His entry into the race had the potential to turn their divergence on the industry into a campaign issue.

And then, in the Legislature’s waning moments, Steiner’s bill died. In an email to ProPublica, she blamed “technical difficulties” without specifying what they were.

“I recognize it is not perfect,” Steiner told Golden in a hearing on Feb. 28, when her bill was still moving forward. “I think it’s damn good, excuse my language, because it’s more progress than we’ve made in a really long time.”

The bill’s failure leaves unresolved a debate over how much the timber industry pays for services like fire protection in Oregon, decades after a series of massive tax cuts whose harms Oregon Public Broadcasting, The Oregonian/OregonLive and ProPublica documented in a 2020 investigation. Those cuts have saved the industry more than $3 billion since the 1990s, the news organizations found, allowing timber companies to profit at the expense of rural communities.

Today, logging companies pay less to cut down trees than they do in neighboring Washington, state analyses have shown.

After catastrophic fires burned thousands of homes in 2020, lawmakers invested $195 million into readiness, including outfitting local fire departments and developing home hardening programs. But with costs rising and the acreage burned by fires doubling over the last decade, lawmakers are still looking for a stable source of money to prepare for and fight wildfires.

Steiner defended her ideas for raising money from taxpayers and homeowners throughout the monthlong 2024 legislative session, saying wildfires had become a statewide problem that demanded funding from all Oregonians, who already subsidize the state’s firefighting capabilities.

A lobbyist for Weyerhaeuser, Oregon’s largest private forestland owner and a participant in the drafting of Steiner’s bill, announced the initial proposal would save the company $500,000 a year. Steiner later committed to reducing the cost shift to taxpayers from $7 million to $3.5 million. When Golden proposed an amendment to ensure big timberland owners didn’t pay any less than they do now, Steiner rejected it.

A Weyerhaeuser spokesperson declined to comment about whether the company expects to pay less in future wildfire funding proposals.

“Wildfires are a shared responsibility that threatens every Oregonian,” the spokesperson said, “and moving forward we’re committed to partnering with Oregon legislators and community members on the complex issue of wildfire funding.”

One of Steiner’s fellow Democrats, state Rep. Mark Gamba, told ProPublica that Steiner’s bill would have reduced what the timber industry pays without solving a real problem that Oregon faces.

“Fires are doubling decade over decade, and our coffers to fight those fires are not doubling,” Gamba said. “I was shocked that this was even brought to us.”

Golden said Oregon needs tens of millions of dollars annually to prepare for increasing wildfire risks. Giving a tax cut to the industry, then turning to the public for more money, would be “a nonstarter,” he said.

Oregon state Sen. Jeff Golden offered a competing bill to fund wildfire response and other services by raising taxes on logging. (Kristyna Wentz-Graff/Oregon Public Broadcasting)

In a departure from Steiner, Golden during the session sought voter approval to reinstate logging taxes eliminated in the 1990s. He introduced a bill that he said could have raised as much as $110 million annually for wildfire fighting, drinking water protection and the county services the logging taxes once funded. That bill stalled, was subsequently weakened to solely seek a study of those taxes, then died in committee.

As Golden and Steiner’s dueling visions for timber taxation and wildfire funding played out, Golden announced he would challenge her in the May Democratic primary for state treasurer. But he withdrew less than two weeks later, saying he realized he didn’t actually want the job.

Kotek, a Democrat, acknowledged in a Feb. 28 letter to lawmakers that differences remain about whether the timber industry is paying its fair share of wildfire costs. How much the industry contributes, she wrote, is a legitimate issue for discussion “as we work to create a comprehensive, long-term fix to our wildfire funding policies.”

Steiner, in an email to ProPublica, said her bill was always intended to be “an intermediate step toward a more equitable, sustainable solution for funding this system. We expect that the next iteration of this proposal will have more nuance.”

Golden said he will continue introducing legislation to tax the industry to pay for wildfire readiness.

“It’s going to come up in some form again,” he said, “as long as I’m in the Legislature.”

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by Eli Hager

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.

Diane Baird had spent four decades evaluating the relationships of poor families with their children. But last May, in a downtown Denver conference room, with lawyers surrounding her and a court reporter transcribing, she was the one under the microscope.

Baird, a social worker and professional expert witness, has routinely advocated in juvenile court cases across Colorado that foster children be adopted by or remain in the custody of their foster parents rather than being reunified with their typically lower-income birth parents or other family members.

In the conference room, Baird was questioned for nine hours by a lawyer representing a birth family in a case out of rural Huerfano County, according to a recently released transcript of the deposition obtained by ProPublica.

Was Baird’s method for evaluating these foster and birth families empirically tested? No, Baird answered: Her method is unpublished and unstandardized, and has remained “pretty much unchanged” since the 1980s. It doesn’t have those “standard validity and reliability things,” she admitted. “It’s not a scientific instrument.”

Who hired and was paying her in the case that she was being deposed about? The foster parents, she answered. They wanted to adopt, she said, and had heard about her from other foster parents.

Had she considered or was she even aware of the cultural background of the birth family and child whom she was recommending permanently separating? (The case involved a baby girl of multiracial heritage.) Baird answered that babies have “never possessed” a cultural identity, and therefore are “not losing anything,” at their age, by being adopted. Although when such children grow up, she acknowledged, they might say to their now-adoptive parents, “Oh, I didn’t know we were related to the, you know, Pima tribe in northern California, or whatever the circumstances are.”

The Pima tribe is located in the Phoenix metropolitan area.

It went on and on like this. Baird acknowledged that her entire basis for recommending that the foster parents keep the baby girl was a single less-than-two-hour observation and interview that she’d conducted with them — her clients. She’d never met the baby girl’s biological grandmother, whom the county child services department had been actively planning for the girl to be placed with, according to internal department emails. Nor had she even read any case documents.

A fundamental goal of foster care, under federal law, is for it to be temporary: to reunify children with their birth parents if it is safe to do so or, second best, to place them with other kin. Extensive social science research has found that kids who grow up with their own families experience less long-term separation trauma, fewer mental health and behavioral problems as adolescents and more of an ultimate sense of belonging to their culture of origin.

But a ProPublica investigation co-published with The New Yorker in October revealed that there is a growing national trend of foster parents undermining the foster system’s premise by “intervening” in family court cases as a way to adopt children. As intervenors, they can file motions and call witnesses to argue that they’ve become too attached to a child for the child to be reunited with their birth family, even if officials have identified a biological family member who is suitable for a safe placement.

A key element of the intervenor strategy, ProPublica found, is hiring an attachment expert like Baird to argue that rupturing the child’s current attachment with his or her foster parents could cause lifelong psychological damage — even though Baird admitted in her deposition that attachment is a nearly inevitable aspect of the foster care model. (Transitions of children back to their birth families are not just possible, they happen every day in the child welfare system.)

As part of our reporting, we reviewed hundreds of pages of Baird’s reports and testimony from cases over the past decade. We also interviewed more than two dozen attorneys, officials, caseworkers, experts and members of foster and birth families who’ve worked with Baird or observed how she implements her methodology, which she has long called the “Kempe Protocol for Interactional Evaluation,” after the Kempe Center at the University of Colorado, the nation’s leading academic institute focused on child welfare. We found that — leaving aside the question of whether attachment theory should even be used as an argument in these cases — Baird’s assessments of foster children’s relationships aren’t just unscientific. They barely touch the surface of a child’s life.

“I don’t know these children,” she testified in one 2017 case, adding, “I have not met anybody.” Still, she said, she “strongly” recommended that those children’s birth parents’ rights be permanently terminated and that the kids be adopted.

Baird is so consistent in this view that she sometimes copies and pastes from her own past evaluations. In the Huerfano County case, she filed a report saying that the baby girl’s life with her foster parents was “predictable, safe, and filled with love”; that removing her from them and placing her with her biological grandma — with whom the girl had been having regular, joyful visits — would “derail her healthy development and create lifelong risk”; and that her “healthy development and mental health will be best protected if her current caregiving environment does not change.”

That same month, Baird filed a report in a Weld County case saying that a baby boy’s life with his foster parents was “predictable, safe, and filled with love”; that removing him from them and placing him with his biological grandmother — who too was regularly visiting him with the support of the county child services department, but whom Baird had never met — would “derail his healthy development and create lifelong risk”; and that his “healthy development and mental health will be best protected if his current caregiving environment does not change.”

Documents Show Baird Repeated Language in Reports on Different Children

Identical, or nearly identical, text in Diane Baird’s reports in two separate cases is highlighted below. Corresponding colors show where text was repurposed. Names and identifying details have been redacted.

(Anna Donlan/ProPublica)

Baird, in an interview with ProPublica, admitted that “I do sometimes use the same verbiage in one report as I did in others.” But, she added in an email, “My consistency is not a boiler-plate approach, but rather reflects developmental science which applies to all children.”

She emphasized, “In all cases I advocate for what I am convinced is the child’s best interest.”

Baird also noted that in many cases she is hired by county officials, rather than directly by foster parents, although ProPublica’s interviews and review of records show that this typically happens when officials are in agreement with the foster parents that they should get continuing or permanent custody.

Baird, despite not being a child psychologist, achieves credibility with these officials — and with judges — in part via the impressive label that she uses for her methodology: the Kempe Protocol.

“Don’t Believe It Is Our Place to Get Involved”

The University of Colorado’s Kempe Center, widely considered the birthplace of the modern U.S. child welfare system, is where this all began.

Baird developed the Kempe Protocol, alongside colleagues, while working at Kempe in the 1980s and ’90s. She continually used the method both as an employee of the center and after entering private practice in 2017.

Founded in the 1970s, the Kempe Center is best known for getting laws passed across the country requiring “mandated reporters” like teachers and police officers to call in any suspicion of child abuse or neglect to a state hotline — after which kids were to be removed from their families, into foster care, if there was evidence of maltreatment. “No organization,” said Marty Guggenheim, the founder of the nation’s indigent family defense movement, “played a more direct role in shaping the modern system of surveillance, over-reporting, and under-emphasizing of the harms associated with state intervention.”

But in recent years, Kempe has taken a more critical look at its past, accepting some institutional responsibility for what it has called the “myth of benevolence”: the idea that certain kids should be redistributed from their families to (often better-off) foster and adoptive parents. The center recently released a statement saying that it had participated in ignoring poverty by placing sole responsibility for poor children’s health and well-being on their families’ alleged maltreatment of them. The statement acknowledged the center’s “complicity” in its “generation-spanning impacts.”

The center even invited Dorothy Roberts, a law professor and sociologist at the University of Pennsylvania who is a leader of the movement to abolish the child welfare system because of its widespread surveillance and separation of Black families in particular, to be a keynote speaker at a recent conference.

Yet when attorneys for poor birth families wrote to Kempe in late 2022 saying that Baird and experts she has trained “are doing real damage to families, and they are doing damage in the name of the Kempe Center,” a University of Colorado lawyer responded by declining the advocates’ request that the center “publicly disavow this protocol and correct the record.” The reason, the lawyer said, was that the judge or jury on a particular case “is in the best position to evaluate arguments raised by involved parties” as to the scientific efficacy of the method. The lawyer added that the center has “worked with hundreds of individuals in its 50-year history in the child welfare arena and we have little ability to control testimony of each individual.”

This response was far from satisfying to some of the Kempe Center’s own faculty, according to interviews with people who work there and internal emails obtained through a Colorado Open Records Act request. “When the Kempe Center was given the opportunity to do the right thing,” wrote one pediatrics professor who has been at Kempe for more than a decade, “it hid behind its legal counsel.”

Alicia Johansen and Fred Thornton with their son Carter, at their home in Colorado. As ProPublica and The New Yorker reported, Baird spent years opposing this birth family’s reunification. But Carter is now back home, bonding with his mom and dad and doing well at school. (Rachel Woolf for ProPublica)

After ProPublica published the article with The New Yorker documenting Baird’s role in the trend of foster parents “intervening” in family court cases, faculty at Kempe started organizing a discussion around our reporting and sought an organizationwide reckoning with our findings. “It was a gut punch to read this,” wrote another professor. “This is likely the most widely distributed reference to the Kempe Center that we’ve seen in the past decade or more.” The tragedy, the professor said, “is that it diminishes all of the good work we have and continue to do for kids and families.” (ProPublica is not naming the Kempe faculty and staff who wrote these emails because several asked not to be named, saying that they were fearful of retaliation by leadership or a negative effect on their academic standing.)

Still another staffer wrote that past cases of hers similar to the one we wrote about “continue to haunt me.”

More emails called Baird’s method a “bogus Kempe protocol” and “junk science” used “to rip apart families.” She is “leveraging the Kempe name to bolster her opinion.”

Even amid this outcry, Dr. Kathryn Wells, the Kempe Center’s executive director, gave a lawyerly explanation to her staff. “Yes,” she wrote in an emailed response to them, “a former employee of the Center has used an approach based on attachment theory and named it after the Center, even though there is no such protocol.” The protocol, she said, was named after Baird’s longtime place of employment — Kempe — but “not trademarked nor listed anywhere in the work that the Center provides.”

In a previous email, Wells, who has national influence on child welfare policy and practice, had explained her reasoning for not taking further action, such as sending Baird a cease-and-desist letter. “If the claims in court are not supported in the literature, that is not ours to get involved with as Diane is not an employee and it is a legal issue for the attorneys to battle in court,” Wells wrote. She added, “Don’t believe it is our place to get involved.”

What Is the Kempe Protocol?

One of Baird’s first steps upon taking a new case, according to ProPublica’s review of records and interviews that we conducted, including with Baird herself, is to meet with the foster parents. She observes the bond that they have with their foster child, which she generally compliments, and then talks to them about the child’s birth family. She asks them about the circumstances of the child’s birth and alleged neglect — neither of which foster parents likely would have been present for — and also about how visits with the birth parents or other relatives have been going.

Drawing from the foster parents’ version of events, Baird routinely reports to the county or testifies in court that visits with the birth family have been detrimental to the child, and, accordingly, she recommends that the foster parents keep the child indefinitely or permanently, on the basis of attachment theory. She has called just this amount of evaluation “the Kempe Protocol” in several cases we reviewed.

In some cases, though, Baird does observe a birth family visit. During these evaluations, she often asks the birth parents or family members a litany of personal questions that can be stressful to answer in a formal visitation setting, including, sometimes, ones about their marital history and why they’re attracted to their significant other. All the while, she judges how they’re interacting with their child, looking for “the little nuances” of how babies communicate, she told me. She calls this, too, the Kempe Protocol.

In Baird’s reports and testimony summarizing her observations from such sessions, she has said, for instance, that a little boy and his birth father seeming to be happy around each other (they were playing catch and saying “I love you!” “I love you more!”; the boy “expressed no negative emotion during their time together”) just showed that the dad was too rigidly setting the emotional tone of the relationship.

She also regularly uses terms like “mirror neurons,” “neurotoxins,” “synapses,” “hormones,” and “encoded trauma in the central nervous system” to justify her conclusions about children’s family relationships. (Baird is not a neuroscientist.)

In interviews and emails with ProPublica, Baird said that she is simply opposed, in almost all cases, to rupturing the current healthy attachment of any child under 3 with that child’s foster parents, even if a birth family member is available and family and cultural heritage stand to be lost forever. She said that this is the age when kids are developing their capacity to form healthy relationships, and that they may experience being removed from their foster parents as a rejection, causing a loss of trust going forward. She also said that kids who have a history of caregiver changes and trauma, which is true of many little ones in foster care, need a sense of “permanency,” often meaning adoption.

Baird’s — and Kempe’s — Legacy

Baird in her office (Trent Davis Bailey for ProPublica)

Baird says that she is likely retiring soon, in part as a result of the increasing scrutiny of her practices that she has been facing. In an email to ProPublica, she wrote, “You have been the catalyst for a good bit of self examination,” adding, “Deep soul searching has followed and your process has helped me as I have worked to be honest with myself.”

Yet Baird still shares thoughts and advice about ongoing cases with a coterie of mostly younger experts — what she called in her deposition a “peer supervision and support” group.

“Do you think it’s maybe advisable that others don’t continue to use that protocol given its controversy and the lack of evidence?” she was asked in the deposition.

“I’ll leave that up to them,” she answered.

Several of these experts, according to their resumes, have trained at Kempe, or they have testified or told ProPublica that they’ve learned directly from Baird either at Kempe or in their continuing practice.

“Kempe is such a weighty voice that no judge is going to be like, ‘Oh, Kempe is wrong,’” said Melissa Michaelis Thompson, executive director of the Office of Respondent Parents’ Counsel, Colorado’s public defender agency for indigent birth parents. Thompson said that her attorneys around the state keep seeing versions of the Kempe Protocol being used in their cases.

Wells, the Kempe Center’s executive director, told ProPublica in a statement earlier this month that the use of attachment theory and parent-child interactional assessments, the procedure that Baird conducts with birth families, “in isolation” and “particularly in non-therapeutic settings and without attention to bias,” is “not consistent with current best practices and can be abused by experts.” Wells added that Kempe does not itself currently provide such evaluations for court proceedings or endorse the methodology for that purpose. “Equity is at the heart of our mission,” she said.

Even if the Kempe Center did fully disavow Baird and her cohort’s use of this protocol and practices like it, there would be no clear recourse for all of the birth families who’ve lost their children in the past because of Baird’s work. Still, those families might better know the truth of what happened to them, many of them say.

Stephanie Riggs, the biological grandmother in the Huerfano County case — “huerfano,” ironically, means “orphan” in Spanish — had been doing everything she could to bring her granddaughter back from foster care. She was working nights to be able to travel to visit the baby girl during the day. She’d dug into her limited budget to get a crib, a dresser and baby clothes, bookshelves and baby books, and a play carpet and a toy box. She successfully completed a safety check of her home, case records show. “The grandmother Mrs. Riggs has been committed” to the child “and loves her very much,” the county said in a report.

A crib, toys and other items in the room Stephanie Riggs prepared for her granddaughter (Courtesy of Stephanie Riggs)

But then “Diane Baird turned everything upside down,” Riggs said. “I didn’t see how she could be unbiased,” Riggs said of Baird, because the foster parent intervenors were “giving her her paycheck.”

Baird told ProPublica that “who pays me is not a factor in any recommendation in any case.” She also noted that she was found credible as an expert by the judge in this case.

The foster father, when reached by phone, declined to comment, citing his family’s desire for privacy and the fact that the case had been emotionally difficult for all parties.

This past fall, with Baird’s help, the foster parents were granted full custody of the baby girl through her 18th birthday. Some visits may still be allowed in the future, at least by video, but Riggs is unsure if her granddaughter will ever meet her aunts, uncles and cousins, or go to their family reunions, or know their family traditions. Only the crib remains, and it is empty.

Mollie Simon contributed research.

by Abe Streep for ProPublica, illustrations by Hokyoung Kim, special to ProPublica

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Join us March 26 to discuss the exodus of wildland firefighters.

Black Butte is an inactive volcano that rises from the high desert in eastern Oregon. In May 2022, a turboprop plane approached its pine-blanketed slopes, carrying about 10 men wearing bulky Kevlar outfits. They were smokejumpers with the United States Forest Service, the agency that directs the majority of the nation’s efforts to manage wildfires. Within the vast and hierarchical fire service, smokejumpers occupy a singular niche, parachuting into remote areas to fight early-stage wildfires. There are only about 450 nationwide, and the physical requirements are rigorous.

One of the smokejumpers on board was Ben Elkind. Thirty-seven years old with a long, athletic build and restless energy, he had been fighting wildfires for 14 years and jumping for the last eight of them. Despite his elite status, Elkind earned about $43,000 in 2021 over the course of the seven-month fire season. His base paycheck, though, was less than half of that. Like most wildland firefighters, he relied on overtime and hazard pay, which can be accumulated on two- or three-week shifts away from home. Many firefighters exceed 1,000 hours of overtime in a season. Elkind chose to be with his wife and two young children more that year and worked a relatively modest 700 hours of overtime, the equivalent of 17 additional weeks.

Still, the beginning of the season usually rekindled the parts of the job that Elkind loved — especially the adrenalized clarity that arrived when his crew’s spotter tapped him on the back, indicating that it was time to jump. In recent years, the Forest Service has switched from round parachutes to rectangular ones, which allow for greater maneuverability. During training exercises that spring, Elkind was still getting accustomed to the new chute. After he slid out of the plane’s open door, a tailwind picked up. He did not descend quickly enough to the landing zone, sailing slightly past it. He saw ponderosa pines rushing toward him and tried to slow his chute. Its canopy collapsed, and he free fell. When he landed, his left leg crashed through his pelvis. Colleagues rushed to him, cutting his suit away. An ambulance sped him to a hospital, where doctors would eventually insert three plates and 12 screws into his hip. He was sent home on painkillers.

Doctors told him he would be on crutches for at least two months, possibly three. When I spoke with Elkind soon after the injury, he said, “I got a lot of pills going, but it’s all right.” Then his tone shifted. “I need to — I would like to — get back jumping,” he said. “That would mean I’ve recovered, but I also know that you don’t always recover from these things.”

He had more immediate worries, though. He could file for workers’ compensation benefits through the Department of Labor, but wildland firefighters have historically struggled to receive those, since federal caseworkers are often unfamiliar with the job’s geographically diffuse nature. (A firefighter based in Idaho might get injured in Arizona, adding a layer of complexity to an already burdensome and bureaucratic process.) A recent survey found that nearly half of Forest Service employees who had suffered an on-the-job injury chose not to report it, assuming that they would receive little or no help. Even if Elkind recovered quickly enough to do office work, he would not be eligible for hazard pay or likely earn overtime, meaning he’d be making around $20,000. His wife, Amber, a physician’s assistant, would be contributing most of the family’s income. “It’s not a great situation,” Elkind told me. “My base check doesn’t cover rent alone.”

Knowing that the government couldn’t offer a swift remedy, his colleagues started a GoFundMe campaign, which quickly raised $50,000. Elkind called it a lifesaver. It was, he said, what wildland fighters did when a colleague was seriously injured. It was, he told me, “standard operating procedure.”

For communities throughout the American West, wildland firefighters represent the last line of defense, but that line is fraying because the government decided long ago that they’re not worth very much. The highly trained men and women protecting communities from immolation earn the same base pay as a fast-food server while taking severe risks with their physical and mental health. Despite the mounting public concern over the increasing severity of wildfires, the federal government has not seen fit to meaningfully address these issues. The effects of this chronic neglect have now become strikingly clear as the fire service is finding it difficult to fill its ranks, prefiguring what advocates are calling a national security crisis.

Fighting wildfires has always been a dangerous occupation, but in the last decade it has become staggering in its demands. Accelerating climate change, coupled with a century of suppression of wildfire, has created thick stands of trees primed to burn across much of the American West. In certain parts of the country, fire seasons that once lasted a few months now span much of the year. In 1993, the federal government fought wildfires on 1,797,574 acres; by 2021, that figure had more than quadrupled. Each spring brings a game of geographic roulette. In 2017, Montana set a state record for wildfires. The next year, California followed suit, with nearly 2 million burned acres, a figure that stood briefly before it was topped twice in the next three years. Experts have been forced to coin a new term for fires exceeding 1 million acres: gigafire.

In many places, wildfire is an essential part of the ecosystem: It clears out dead underbrush and aging foliage, spreads new seeds and enables biodiversity. Extinguishing it, as federal and state governments have done for 100 years, just creates a larger and more dangerous fuel load. Great swaths of the country are now in what scientists call a fire deficit — they haven’t burned for a long time, and they need to, or fires will only get bigger and more destructive. The only way out of such a deficit is to let a wildfire go or to manage it by setting a prescribed burn to reduce the amount of fuel. But in drought-stressed and densely populous places, that is difficult. In 2022 in New Mexico, two prescribed burns got out of control, merged and scorched an area larger than Los Angeles. It can be all but impossible to suppress a megafire, but the government must try, unless it wishes to write off, say, Mora, New Mexico, or Malibu, California. There is no technology up to the task; most of the work is still done by unseen, underpaid people with chainsaws and hand tools.

But at exactly the time when the country needs wildland firefighters more than ever, the federal government is losing them. In the past three years, according to the Forest Service’s own assessments, it has suffered an attrition rate of 45% among its permanent employees. Many people inside and outside the fire service believe this represents one of the worst crises in its history. Last spring, as the 2023 fire season was getting started, I asked Grant Beebe, a former smokejumper who now heads the Bureau of Land Management’s fire program, if there had been an exodus of wildland firefighters. He initially hesitated. “‘Exodus’ is a pretty strong word,” he said. But then he reconsidered. “I’ll say yeah. Yeah.”

“The ship is sinking,” Abel Martinez, a Forest Service engine captain in California and the national fire chair for the National Federation of Federal Employees, the union that represents wildland firefighters, told me. (For this story, almost every wildland firefighter who agreed to use their full name has an official role with the union; the one firefighter identified by their middle name does not.)

Although nobody could provide precise numbers, leaders like Beebe are especially concerned that the attrition has been particularly acute among those with extensive experience — those like Elkind. It takes years and hundreds of thousands of dollars to train a wildland firefighter capable of overseeing the numerous resources — engines, helicopters, smokejumpers — that are deployed on large fires. As Beebe put it, “You can’t just hire some person off the street into one of our higher-level management jobs.”

The reasons for the exodus are many, but fundamentally it reflects an inattentive bureaucracy and a culture that suppresses internal criticism. Only in 2022 did the fire service acknowledge an explicit link between cancer and wildland firefighters, even though officials have long expressed concern about the connection. And it was only last year that the fire service held its first conference on mental health, even though officials have been aware for decades of the high incidence of substance abuse and divorce among wildland firefighters.

But more than anything, wildland firefighters are leaving because they’re compensated so poorly, the result of a byzantine civil service structure that makes it extremely hard to sustain a career. The federal fire service is responsible for managing blazes on nearly 730 million acres of land — an area almost the size of India. Among the five agencies, one dominates in terms of influence and size: the Forest Service, which employs more than 11,000 wildland firefighters, most of whom work from roughly April to October. The hiring system dates to the early years of the agency, when it often recruited from bars and relied on volunteers to suppress wildfires by 10 a.m.

About one third of the workforce is temporary — firefighters who are automatically laid off at the end of each season. Even those who are permanent receive compensation starting at $15 per hour until they accumulate overtime and hazard pay. Because of the way the government classifies their work, it’s extremely difficult for wildland firefighters to increase their base salaries unless they frequently move around the country. Altogether, it’s a pay structure that incentivizes risk taking and a nomadic existence.

For more than a century, the Forest Service was able to call on a ready workforce, one made up largely of rural men. (It is estimated that 84% of wildland firefighters are male.) Because of the reliable flow of applicants, the agency did not need to advocate for increased pay. But the changing nature of fire seasons, combined with the skyrocketing cost of living in the mountain West, has made firefighting less alluring than it once was.

A Forest Service spokesperson wrote that since 2021 the agency has acknowledged the attrition among its workforce: “It is why agency and department leadership have been doing everything possible in coordination with the administration and Congress to provide a permanent, competitive increase in wildland firefighter pay, as well as staffing capacity and mental health programs.” The spokesperson pointed to a raise — from $13 to $15 an hour — created by the Biden administration in 2021. The spokesperson also wrote, "With the increasing duration and intensity of wildfires the agency understands the need to do much more.”

Last fall, the Forest Service processed its applicants for 2024. An official who has been involved in hiring for the agency for more than a decade characterized the returns as “abysmal” — “It’s the smallest list I’ve ever seen,” he told me. A severe dearth of applicants for temporary seasonal jobs — the entry point for the next generation of wildland firefighters — forced the agency to extend its hiring period. For permanent positions, the returns were not much better.

Talk to enough wildland firefighters, and you’ll eventually hear about freedom. Not liberty, necessarily, but the thrill of a job that requires walking around woods with a chainsaw. Hannah Coolidge joined the Forest Service when she was 25, eventually becoming a hotshot, part of an elect crew that tromps far into forests to cut breaks around the largest wildfires to rob them of fuel. For a decade, Coolidge never attended a wedding or a funeral during fire season, but she loved the life — living outside, working with a tight-knit group, having winters for herself, being in phenomenal shape. (Researchers at the University of Montana have found that, during fire season, hotshots can expend about as much energy as cyclists in the Tour de France.) Taylor Hess also came for the time off but found that a Montana fire crew brought communal purpose, something that had been missing in the Midwestern town where she was raised. She liked huddling with colleagues at the end of the day, frying Spam over a wildfire’s dying embers and pouring an electrolyte mix on top. “It’s kind of gross,” she said, but she cherished those moments: “We get so close.”

A lot of the job is grueling and dirty: mopping up the end of a wildfire in a sea of ash; constructing line around piles of downed limbs in advance of lighting a prescribed burn; unrolling a sleeping pad in the woods or an ad-hoc camp, then awakening to the boot of a superintendent or water from the sprinklers on a high school football field. It’s slow until it’s not. Then it becomes vertiginous and hallucinatory. “It is a landscape of extremes,” Eric Franta, a wildland firefighter based in Oregon, told me. During Bobbie Scopa’s first fire, she was walking on a hill above a burning canyon when a chief bellowed for her to cover her head. An air tanker dropped chemical retardant, a great red squall that shook the ground. “I thought, ‘This is the coolest fucking job!’” she said.

In many communities, it’s also the best available employment option. Jake Kennedy, now an engine driver in California, was recruited by a former wrestling coach in a tiny Oregon town where the Forest Service was one of two reliable employers. Morgan Thomsen grew up in a remote part of Idaho where his parents were fire lookouts, so he was raised thinking that fighting fire was a good way to earn a living. Kristina — her middle name — enlisted in part to honor her family. Her grandfather had been a smokejumper, and her parents had both worked as wildland firefighters. “We have this loyalty in my family to the Forest Service,” she said.

Among his peers, Elkind is seen as fortunate. He didn’t join the Forest Service to escape rural poverty — he has a bachelor’s degree in economics from Lewis & Clark College — but rather to seek adventure. He was also a smokejumper, with the status that the job entails. (A fire service joke goes like this: A group of wildland firefighters walk into a bar. How do you know which is the smokejumper? They’ll tell you.) Still, Elkind, like so many of the firefighters I talked to, seemed almost trapped by the freedom he had once sought. “I like my job,” he said. “It’s just hard to see the effects when you’re starting out a career.”

Those effects weren’t just his busted pelvis. It was being away from his family for long stretches. (“It’s a Catch-22,” a firefighter told me. “For us to be able to provide for our families, it requires us to basically detach from our families.”) And it was how difficult the Forest Service made it for someone to rise and earn a decent living. To earn a promotion and reach higher pay grades, firefighters usually have to move among the agency’s nine regions or earn a master’s degree in forestry and leave the fire line.

Elkind didn’t want to do either of those things. He’d grown up in Oregon, and his family was rooted there. In early 2022, he and Amber moved to Redmond, a town of 35,000 in the central part of the state, where the Forest Service has one of its seven smokejumper bases. Compared with nearby Bend — a bacchanalia of Gore-Tex and microbreweries where the median home price hovers above $700,000 — Redmond is middle class. But, as Elkind told me, “This place is blowing up.”

Redmond, like many towns where wildland firefighters live, has experienced an influx of remote workers since the onset of COVID-19, which has driven up housing costs. The rent on the Elkinds’ modest house is $2,300. Even before his accident, he was nervous about making ends meet. In November 2021, the government offered some relief when Congress passed the Bipartisan Infrastructure Law, which created a temporary pay raise for wildland firefighters of either $20,000 or 50% of their regular check.

When I visited Elkind at his home, toys were scattered across the floor, an elk mount lay on a couch and bills were piled on the dining room table. He wore shorts and a tank top, and his hair was long. Save for the flecks of gray in his beard, he looked boyish. Three months after his accident, he still walked with a limp and needed a cane but was able to drive his kids to school. He had considered filing for worker’s compensation but decided against it, because it was hard to reach his caseworker and because the Forest Service offered him an office job, which allowed him to benefit from the temporary pay raise.

Until the move, Elkind had been living a split existence, with his family in Portland and his job in Redmond, where he camped out on a colleague’s property during fire season. In the summer of 2020, lightning started a fire on the Warm Springs Reservation in Oregon. It soon spread onto land managed by the Forest Service, and Elkind was dispatched. Upon arriving at a fire camp, he was alarmed by a lack of veteran firefighters. “It was like a ghost town,” he said. He found himself training people from municipal departments who had been hired on temporary contracts to fill vacancies. Over Labor Day weekend, wind carried embers for miles, causing the fire, which became known as the Lionshead, to jump and merge with others. The blazes burned more than 400,000 acres, killing at least five people.

At the same time, his mother’s home near Hagg Lake was under evacuation orders brought on by another fire. Amber was in Portland with the couple’s 2-year-old son, in a house without air conditioning. She was also pregnant. Elkind told her to duct-tape paper towels over a box fan to create a makeshift air filter as smoke from the fires suffused the city. “I think I had a little bit of a mental breakdown,” he told me. “Homes are burning down. People are dying.” Entire forests in western Oregon were disappearing. He couldn’t stop what was happening to the only place he’d ever called his own.

The decision to relocate to Redmond was so Elkind would not be away from his family throughout fire season. Still, he worried about the choice. Amber had been able to find work with a clinic in Redmond. But for him to reach a higher hourly wage would likely require the family to move again. “What’s she supposed to do? Quit her career every year and a half so I can get a dollar-fifty an hour raise?” he asked.

During our discussions, Elkind often edited his sentences so as to not sound as though he was blaming the Forest Service, even though as a union representative he had protection. His affection for his work became a refrain that he repeated to the point of awkwardness: “I like my job. It’s just difficult to justify it with a family.” “I do love my job, but that doesn’t mean that I think it’s worth it for a young person.” “I would almost do it for free,” he wrote in an op-ed that appeared in The Oregonian in 2021 that was critical of the Forest Service’s refusal “to rise to the challenge of climate change and the growing demand that increased fires, short-staffing and low pay presents for our workforce.”

That rhetorical hesitancy was a reflection of Elkind’s torn feelings, but it was also an acknowledgment of something else: The Forest Service is known to function as a company town in rural America, deterring discussions that could result in negative attention. When I spoke with Jaelith Hall-Rivera, the Forest Service deputy chief for state, private and tribal forestry, she acknowledged that the agency has a reputation for discouraging employees from speaking out. “We have tried for a long time to change that culture,” she said. “Especially in fire, you have to be able to speak up when something doesn’t feel right to you.”

The National Federation of Federal Employees says it does not track instances of workplace intimidation or retaliation among wildland firefighters, so it’s impossible to ascertain how often this occurs. But fear of reprisal was a common thread in many of my conversations. At a gathering of wildland firefighters and agency supervisors that I attended last spring, a member of a Forest Service rappel crew approached me eager to discuss the changes she wanted to see in the agency — especially the need for more women in leadership positions. An older colleague quickly pulled her aside; when she returned, she asked if she could see the article before it was published. When I asked if a superior had told her not to speak to me, she said, “I don’t feel comfortable answering that.”

Every year, returning federal wildland firefighters take a refresher course covering safety practices. Firefighters get to choose from a number of videos. One, titled “Smoke: Knowing The Risks,” is led by George Broyles, a former wildland firefighter and public information officer. From 2008 to 2014, he spearheaded the Forest Service’s research into the physiological impacts of wildfire smoke. “Exposure to carbon monoxide and some of these other chemicals is going to impact the way we think,” Broyles says in the video, which emphasizes wildfire smoke’s effect on performance and decision-making. But when it comes to the long-term health effects of working in smoke, the video is circumspect. “That’s an issue that’s still understudied,” Broyles says. The video, which was produced in 2018, never mentions the possibility of cancer, nor does a more recent preparedness guide for new recruits.

It is now widely accepted that all firefighters — structure as well as wildland — are far more susceptible to cancer than the rest of society. In 2022, the International Agency for Research on Cancer declared that the job is carcinogenic to humans. But still the Forest Service and the other federal agencies that employ wildland firefighters have been slow to acknowledge the obvious. Part of the problem is a lack of epidemiological research into the distinct risks that wildland firefighters face. Dr. Jeff Burgess, the director of the Center for Firefighter Health Collaborative Research at the University of Arizona Mel and Enid Zuckerman College of Public Health, is working to fill that void by conducting long-term epidemiological studies on wildland firefighters. “We just don’t have the same degree of information on cancer risk in wildland firefighting that we do in structure firefighting,” he said.

Last February, I attended an event at the University of Miami called the International Firefighter Cancer Symposium, which brought together firefighters from as far away as Australia and researchers from institutions like the American Cancer Society and the University of Toronto’s Dalla Lana School of Public Health. It was a gathering for those who study cancer and those who develop it while fighting fires. Many of the researchers were looking into the dangers of per- and polyfluoroalkyl substances, or PFAS, commonly known as “forever chemicals.” Synthetic compounds, PFAS are ubiquitous in municipal fire- and water-resistant gear and have long been used in firefighting foam. (The Forest Service says it does not know whether its protective gear for wildland firefighters contains PFAS but that it has sent samples to the National Institute for Occupational Safety and Health for testing.)

The conference’s emphasis on PFAS reflected a huge gap in research. Structure firefighters encounter smoke that is often more toxic than wildfire smoke, but they also use powerful respirators. Wildland firefighters eschew respirators since most are bulky and can be operated for only about 30 minutes at a time. Of the numerous studies presented, only one explicitly focused on wildland firefighters. In that project, which hasn’t yet been published by a peer-reviewed journal, researchers from the University of Miami examined exposure to polycyclic aromatic hydrocarbons, or PAHs, produced during prescribed burning. They found that wildland firefighters had elevated exposures to the compounds, which have been associated in the general population with lung and bladder cancer and cardiovascular dysfunction.

That smoke contains such material is not news to the Forest Service. In 1989, the agency convened its first gathering to discuss the physical effects of smoke and allotted some money for research. Attendees recommended that the agency conduct an epidemiological cohort study to examine long-term health risks. Funding for the study was never appropriated, though.

Eleven years later, researchers employed by the Forest Service published a paper that found that smoke from prescribed burns contained elevated levels of carbon monoxide and particulate matter, including benzene and formaldehyde, both of which are carcinogenic. It noted that, during high winds, the levels were up to three times above what workplace safety organizations recommend. Despite this, it concluded that “the adverse health effects of smoke exposure at prescribed fires seem to be manageable.”

At a summit in 1997, researchers again suggested that the Forest Service undertake a cohort study to look at the effect of wildfire smoke among the workforce, using markers like blood and urine samples. It, too, was never done.

Starting in 2008, Broyles, with the support of the Forest Service, traveled the country and to test fire crews’ smoke exposures. It wasn’t an epidemiological study, but it led to a 2019 peer-reviewed paper that modeled wildland firefighter cancer rates based on what is understood about smoke’s impact on the general population. It projected that wildland firefighters’ incidences of lung cancer would be elevated by between 8% and 43%.

The study was posted on the agency’s website, but, according to Broyles, its findings have led to little change. He said he was brushed off when he proposed an updated version of the smoke video to address the risk of cancer. (When asked about Broyles’ assertion, an agency spokesperson wrote, “The Forest Service is deeply committed to not only understanding occupational risks to employees but mitigating these risks.” They added, “Recruitment materials for wildland fire positions often describe the job as difficult and dangerous.”)

In 2022, the National Wildfire Coordinating Group, which is made up of leaders from the five federal agencies that oversee wildland firefighting, released a new preparedness guide for recruits that made no mention of cancer. “It confounds me,” Broyles told me. “Quite frankly, it breaks my heart.” As of last year, his 2018 smoke video was still being shown to federal firefighters. (When asked why the materials did not refer to cancer, the Forest Service and the Department of the Interior said they were developed before the agencies were provided legal language recognizing a link between the disease and wildland firefighting.)

The firefighters union and an advocacy group called Grassroots Wildland Firefighters used the 2019 paper to lobby the Department of Labor, and in April 2022, the department announced that it would recognize numerous cancers, including lung, testicular and thyroid, as an occupational hazard. (Notably, cancers distinctive to women, such as ovarian, were excluded.) Eight months later, Congress passed a law that called cancer a presumptive sickness for federal firefighters and mandated that the five agencies that make up the fire service file a report on illnesses, including cancer, in the profession. “We’re just starting that,” said Hall-Rivera, the Forest Service deputy chief.

Some advocates have expressed hope that a deeper understanding of wildland firefighter cancer rates might evolve after the launch of the National Firefighter Registry for Cancer, a voluntary database managed by the National Institute for Occupational Safety and Health. Congress allocated funding for the registry in 2018, but it went online only last spring. According to current and former employees of the Centers for Disease Control and Prevention, NIOSH’s information technology department caused unnecessary delay. “From my perspective this is gross mismanagement,” said one person with direct knowledge of the project. Another official supported that assessment. (In a statement, a NIOSH spokesperson wrote that since 2021, the agency “has designed, built, tested, and deployed a robust enrollment system that incorporates industry best practices for information security and sensitive data management.”)

Immediately after the registry launched, Elkind decided to enter his name. When he arrived at the hospital after his training accident, he underwent a full-body CT scan, which revealed a mass in his thyroid. It proved to be cancerous. He had no family history of thyroid cancer, so he assumes his illness came from smoke inhalation, but he’ll never know. “Not everybody’s as lucky as me to break their pelvis at work and get scanned at the hospital,” he said with deadpan sarcasm. The next time we spoke, three months after the accident, he said, “I’m not upset at the Forest Service. I’m just like — I’ve never heard them say, ‘Hey, this smoke is cancerous.’”

In the fall of 2020, after Oregon’s fire season ended, Elkind went for a run in Portland’s Peninsula Park. He had recently been laid off for the winter. For many wildland firefighters, this period of sudden transition is brutal: When you’ve been operating on intensity for six months, taking out the trash and folding laundry can feel empty. In the past, Elkind had managed the annual pivot by doing construction work and house projects or by traveling with friends. But he was still experiencing the acute pressure he’d felt since the peak of fire season when so much of Oregon burned. Amber had just given birth to the couple’s second son, and he wasn’t sure how to responsibly move forward in his career. “I was so stressed out,” he told me.

Elkind thought he’d try to contact a therapist — something he’d never done. During his run, he called the Employee Assistance Program, a service set up by the federal government that provides workers from any agency as many as six sessions per condition with a mental health professional. Elkind hoped to arrange an appointment in person but was informed that the session was only available right then on the phone. That wasn’t the worst of it: When he shared his employment information, he was told that he would not be eligible to receive help until he returned to work during the next fire season. “I was like, ‘Maybe I’ll drink a few more beers and forget about this,’” Elkind said.

The Forest Service revised its EAP policy a year later and now offers consultations to firefighters for up to six months after their layoff. (“The agency has been proactive in addressing known challenges with past EAP services,” wrote a spokesperson.) However, because the EAP serves a vast federal bureaucracy, multiple wildland firefighters told me that they did not trust its counselors; the people on the other end of the phone, they said, knew little about what their job entailed.

The fire service does offer wildland firefighters access to a crisis intervention program after the death of a colleague, say, but it provides little aid for those facing the daily burdens of the job — and those can be extreme: Trees falling next to where you’re standing. Helicopters flying in to remove the injured. Mopping up for days, surrounded by smoke. Many wildland firefighters, who operate in a culture that prides itself on stoicism, respond to those pressures in ways that aren’t surprising. Some chase more adrenaline: kayaking, skiing, mountain biking. “There’s a lot of dealing with it through drinking and drugs — at best,” Hannah Coolidge, the Washington hotshot, said. In January, researchers with NIOSH and the CDC released a peer-reviewed study that confirmed what Coolidge and others told me. It found that among six federal wildland crews, 78% of the firefighters reported binge drinking.

“We’re so unhealthy in such a ubiquitous way that it’s almost hard to pinpoint,” a Forest Service firefighter in Oregon said. He had returned home from combatting a fire to find his house burned to the ground. Since then, he had endured symptoms consistent with post-traumatic stress disorder. A firefighter in Wyoming who recently left the service told me that, like many of his colleagues, he couldn’t maintain a relationship: “I wouldn’t date me either. I’m not emotionally available. I’m gone.” A recent survey of the spouses of wildland firefighters found that almost half had considered leaving their relationships because of the job.

“Wildland firefighting is similar to other high-risk occupations and also similar to the Western American culture around how to manage difficulty,” psychologist Patricia O’Brien, a former hotshot who now oversees the Bureau of Land Management’s mental health program, told me. “There’s been a tradition of not talking about it, of keeping your personal life boxed up and separate and prioritizing work. And a sense that, as long as you’re able to show up and work, you keep your personal problems at home. We know that people may be able to do that for a period of time, but it’s not sustainable, and it’s harmful to people.”

In 2018, O’Brien, who at the time was a doctoral student, conducted a survey of 2,600 wildland firefighters, finding that one-fifth had experienced suicidal thoughts, while nearly 14% of respondents screened positive for probable PTSD — a rate about four times that found in the general population. Six years later, that data remains the most reliable on the mental health of wildland firefighters.

The Forest Service has responded to the mental health struggles of its workforce much the way it has responded to cancer: For years, officials have raised concerns about the issue, and for years, the agency has either ignored or minimized them. In a statement, the agency acknowledged it “has not conducted or funded a study into the mental-health effects of wildland firefighting.” Tom Harbour, a former national director of fire and aviation management at the Forest Service, told me that the agency began discussing the pressures on its workforce in the 1990s. “We started asking ourselves about the cost of the system we had built,” he said, referring to the agency’s emphasis on overtime and hazard pay. “Divorces, heavy drinking — those were just things that were kind of a byproduct of the system.” He added, “Why in the world should it take 30 years to make some of these changes?”

“That’s a fair question,” the Forest Service’s Hall-Rivera said. “We did have to build our awareness. It is hard to get people to talk about it, and we had to shift our focus and start asking for resources, start investing resources.”

In 2021, the Bipartisan Infrastructure Law allotted $20 million to the agencies overseeing the fire service to establish year-round mental health programs. The Bureau of Land Management had already been taking steps in that direction; five years ago, it launched a pilot program offering pre- and postseason mental health trainings for firefighters to help them transition in and out of the season.

But the Forest Service has lagged behind. Last year, for the first time, the agency announced a wildland firefighter mental health support program; with $1.5 million allotted over two years, it’s still in the planning stage. (The Forest Service’s budget for the fiscal year was $10 billion.) Individual districts have begun contracting at least one mental health provider, Dani Shedden, a former wildland firefighter who in 2022 quit to start a counseling business. Shedden told me that much of her work with the Forest Service is focused on post-season sessions, in which she shows firefighters how to use the EAP and find what she called “culturally competent clinicians” in rural areas. Shedden has conducted 10 such sessions.

Last April, many of the fire service’s leaders — including Hall-Rivera and Beebe — gathered in Boise, Idaho, for what was billed as a first-of-its-kind seminar on mental health. Long the nerve center for the federal fire service, Boise has become a boomtown, pricing out wildland firefighters, with a median home price of $513,000. After the event, attendees gathered at a downtown food court, where Kelly Martin, a co-founder of Grassroots Wildland Firefighters, approached Jeff Arnberger, at the time a Bureau of Land Management official who also served on the executive board of the National Wildfire Coordinating Group. They began discussing their hopes for the service — subsidized housing, fair pay, presumptive coverage for PTSD, a more tolerant fire service. “If you ran our model at Nikon or Google or McDonald’s, those places would be out of business in five minutes,” Arnberger said. “We pay our people like shit. We don’t offer them any help when they have a problem.”

By January 2023, doctors had removed the cancer in Elkind’s thyroid, and he had been cleared to return to smokejumping. Amber asked him not to tell her about his first practice jump, so he didn’t. He spent almost the entire summer away from Redmond. In early July, he jumped a fire in Washington and felt his old confidence returning. He then had a long stint learning to be a medical unit leader. When we spoke in September, he was working on a handcrew in western Washington as its assistant — in effect, the second in command. “It feels like I’m almost giving back, helping to train people, which is kind of nice,” he said.

With Elkind away so much, Amber left her job as a physician’s assistant. “I didn’t feel like I could do the summer with me taking care of the children and doing primary care,” she said. Compared with previous years, 2023 was a light fire season. Fewer than 3 million acres had burned — the lowest figure in more than 20 years. That was particularly fortunate for residents of California, where, according to the union, 12% of Forest Service engines went unstaffed and had to be effectively shut down and six hotshot crews did not have enough firefighters to operate. In September — often the height of California’s fire season — the agency’s statewide wildland firefighting force had a vacancy rate of 35%. In one forest, the Modoc, 68% of positions were empty.

The temporary pay raise from the Bipartisan Infrastructure Law was set to expire in the fall. Kyrsten Sinema, the independent senator from Arizona, introduced a bill in August that would largely protect the increase, which had Republican and Democratic cosponsors. Then, over Labor Day weekend, the Forest Service sent an email to thousands of firefighters, informing them that they would be receiving a 50% pay increase — which turned out to be erroneous. The Forest Service explained that the notification was the result of a clerical mistake. “Please know that this error was not made deliberately,” the Forest Service’s human resources department wrote in a mass email two weeks later.

Elkind was on a fire when this occurred and said his attention was elsewhere. But for other wildland firefighters I spoke with, the email was indicative not just of the agency’s incompetence but of an obliviousness that bordered on cruelty. Congress has since voted to preserve the raise until Sept. 30, 2024, but its future remains uncertain. “I know that some of you are living paycheck to paycheck and do not have the means to save for a rainy day,” Hall-Rivera wrote on the Forest Service’s website. “Rest assured that we remain committed to securing the permanent solution that our wildland firefighters deserve.”

In the fall, when the Forest Service began to assess the state of its workforce for the 2024 fire season, the results were shocking, according to an official. Undesirable applicants were appearing frequently for crucial positions. “This list really stinks,” he said. In Rapid City, South Dakota — typically a popular work location — there was only one applicant for an engine captain position by mid-November. In California, union officials were anticipating a mass departure of engine captains and hotshot superintendents. “We used to have the depth,” Abel Martinez, the California engine captain, said. “We’d just promote everybody up. Now you go to the cupboard, and there’s no food. There’s nobody there.”

When asked about the continuing attrition, an agency spokesperson wrote, “It is accurate to say that the Forest Service has lost firefighters to better paying jobs,” adding that the dynamic “is more pronounced in specific regions and states.”

In January, Elkind resigned from his position as a smokejumper to become an assistant captain on a handcrew. “It feels impossible to stay,” he told me shortly before he made the decision. “It feels irresponsible to stay — with a family.” Then he started, once again, to talk about what he prized about his job: chainsaws, doing something that almost no one else can do, sliding out of the door of a moving plane into the open sky. He would miss that, but he wanted to continue fighting wildfire. It is an incredible force — writhing, leaping, kicking off embers that dart toward other living things. It can be regenerative, but it can also devour.

Clarification, March 18, 2024: After publication, the reporter and ProPublica learned that the smokejumper prominently featured in the story, Ben Elkind, is a nephew of staff reporter Peter Elkind. Peter Elkind had no involvement in the reporting, editing or preparation of the article.

by Alejandra Martinez, The Texas Tribune

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

The U.S. Environmental Protection Agency on Thursday issued a rule to slash toxic emissions from commercial sterilization facilities that have posed an increased lifetime cancer risk to residents who live near them. These facilities release fumes of ethylene oxide, labeled by the agency as “one of the most potent cancer-causing chemicals.”

Ethylene oxide, a flammable, colorless gas, is used to sanitize medical and dental equipment to reduce the risk of infection, and fumigate certain food products. Long-term exposure to ethylene oxide can cause irritation of the eyes, skin, nose and throat as well as damage to the brain and reproductive system.

The new rule will place stricter limits on how much ethylene oxide commercial sterilizers can release into the outside air, eventually eliminating about 90% of emissions of the gas nationwide, according to the EPA. An analysis by the environmental group Union of Concerned Scientists found about 13 million people live near these facilities, and these emissions pose a disproportionate risk to poor and minority communities. In Texas, residents say a plant in Laredo, Midwest Sterilization Corporation, has contributed to the city’s elevated rates of cancer.

Facilities would be required to install pollution-control equipment, conduct continuous emissions monitoring and file quarterly reports to the EPA. A spokesperson with Midwest Sterilization told ProPublica the company is evaluating the new rule and learning about its requirements. “Our top priority is ensuring we can continue to keep communities safe while helping to save patient’s lives,” the spokesperson wrote, referring to the corporation’s work on sterilizing surgical kits for hospitals.

Reducing cancer in communities exposed to toxic air pollution has been a prime focus of the Biden administration’s environmental agenda. The new rule will address emissions at nearly 90 commercial sterilization facilities, including some in Texas, that are owned and operated by approximately 50 companies.

Prior regulations on commercial sterilizers that use ethylene oxide did not account for the EPA’s latest research. In 2016, the agency concluded that ethylene oxide was 30 times more carcinogenic for adults than previously thought and 50 times more carcinogenic for those who are exposed since birth.

“We have followed the science and listened to communities,” EPA Administrator Michael Regan said in a press release. “We’ve arrived at a historically strong rule that will protect the most exposed communities from toxic air pollution while also ensuring that there will be a process that safeguards our nation’s critical supply of sterilized medical equipment.”

A 2021 investigation by ProPublica and The Texas Tribune revealed the EPA’s yearslong failure to inform communities, including Laredo, a city of more than 250,000 on the Texas-Mexico border, of the risks they faced from the cancer-causing chemical. The Texas Department of State Health Services conducted two assessments in 2022 examining cancer rates from 2006 to 2019 in Laredo and found a higher rate of acute lymphocytic leukemia, breast cancer and non-Hodgkin lymphoma compared with cancer rates elsewhere in the state.

“We were completely unaware. And to this day, I think many still are not fully aware of what’s right there and how dangerous this chemical is,” said Tricia Cortez, a Laredo resident and executive director of the environmental nonprofit Rio Grande International Study Center, on Thursday.

“The ones who suffer most are our everyday people who live and work right next to these facilities.”

Cortez said that her community has been waiting a long time for EPA’s new rule and that the decision to reduce emissions means a lot.

In 2022, Earthjustice sued the EPA on behalf of environment and community groups including the Rio Grande International Study Center for not updating the rules in nearly a decade and leaving communities unaware of the risks. (The lawsuit is still ongoing.)

Following news reports, the EPA published proposed requirements last year to reduce ethylene oxide at these medical sterilizers. The agency conducted public hearings, webinars and meetings to hear from communities and their health concerns. It also published an analysis of the industry’s self-reported emissions data that showed about a quarter of the nearly 100 commercial sterilizers, including the one in Laredo, were exposing nearby residents to unacceptable cancer risks from ethylene oxide. The agency also published risk maps and other information online for each of the high-risk facilities.

“Overall, I am pleased this rule will protect the health of communities while still considering the importance of medical sterilization devices to hospitals, doctors, and patients,” said U.S. Rep. Henry Cuellar, D-Laredo, in a press release.

Scott Whitaker, president and CEO of the Advanced Medical Technology Association, a group that lobbies for the interests of medical device manufacturers, said in an email on Thursday the group is still examining the new rule’s full impact, but he warned that new regulations could cause problems for patients by creating treatment and surgical delays.

“There are three broad areas we have emphasized throughout the rulemaking: adequate time to implement, flexibility in technologies to remove emissions, and the ability to achieve EPA targets that would not force resubmission of medical devices for FDA approval,” Whitaker wrote.

EPA is assuring the medical industry that these new rules will not impact access to sterilized medical equipment. Harold Wimmer, president and CEO at the American Lung Association, praised the federal agency for striking a balance between new measures for limiting pollution and the need for safe and clean medical supplies.

“No one should have to live with elevated cancer risk because of air pollution in their community,” Wimmer said in a press release.

The new rule will evaluate if facilities are complying based on their cap or allowable amount of emissions they can release into the air per pollutant as listed in their state permits.

“What we know is that these facilities are often releasing more than what they are stating. [The EPA] revised its risk assessment to look at how much a facility is allowed to emit and as a result is more stringent standards, which we think is a major positive,” said Marvin C. Brown IV, a senior attorney at the nonprofit Earthjustice.

In response to questions from ProPublica, Brown said that the news organizations’ joint investigation into industrial emissions and cancer risk played a role in the final rules. “I think it has led to people commenting, participating in the process, pushing EPA to do this and to regulate this industry in a way that will hopefully save a lot of lives in the future,” he said.

While Brown sees the EPA’s new rules as a great first step, he said he was disappointed to see that the agency did not end up requiring commercial sterilization facilities to obtain Title V permits. The agency had included this stipulation in its proposed rule last year, which would have mandated that facilities undergo a permit approval process that includes a review from federal regulators in addition to state regulators, and federal requirements for public participation.

The rules go into effect shortly after they are published in the Federal Register. Facilities will have two years to install monitoring and pollution controls and an additional 180 days to demonstrate compliance. If facilities need more time, they can petition states and the EPA for an extension.

In the past, the state’s environmental regulator, Texas Commission on Environmental Quality, has disagreed with the EPA’s science assessment of ethylene oxide’s dangers to health and the environment. The TCEQ launched its own review of the chemical in 2020, which ruled that it was significantly less toxic than the federal agency had found. The TCEQ attempted to enact a new standard that could allow plants to emit more of the chemical, but the EPA rejected it in 2022.

Richard Richter, a spokesperson for the TCEQ, said the agency will implement the new standard and facilities will be required to comply with the new rule.

Lisa Song and Maya Miller contributed reporting.

by Tony Cook, IndyStar

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Amid ongoing concerns about abuse at Indiana’s residential youth centers, Gov. Eric Holcomb signed into law on Wednesday a measure intended to increase scrutiny of care and curb abuse.

The new law authorizes the Indiana Department of Child Services to investigate claims of abuse at residential facilities involving youth ages 18 to 21. DCS previously screened out such complaints without investigating.

The legislation is a response to an IndyStar-ProPublica investigation that uncovered more than two dozen allegations of sexual abuse or inappropriate behavior by employees at Pierceton Woods Academy, a northern Indiana residential treatment center for boys with substance use disorders and sexually harmful behaviors.

In a story published in November, the news organizations found that DCS failed to investigate some of the allegations. In at least one case, records indicated DCS declined to look into claims against a staffer because the alleged victim had turned 18 and was no longer considered a child. The accused staffer went on to sexually abuse a different resident two years later during a walk near the facility’s soccer field, according to a subsequent DCS investigation.

DCS also found that Pierceton Woods knew about sexual abuse claims but did not report them to the state’s child abuse hotline. Indiana’s mandatory reporting law requires suspected abuse to be reported to DCS or law enforcement immediately.

In another story published this month, IndyStar found similar problems at Wernle Youth & Family Treatment Center in Richmond. State records show the facility failed to report allegations of physical or sexual abuse on multiple occasions, including after a 21-year-old counselor engaged in a sexual act with a 14-year-old resident behind a trash receptacle in 2019.

Such revelations stirred concern among lawmakers, especially because Pierceton Woods’ parent organization, Lasting Change Inc., lobbied last year for legislation that would have given residential treatment centers immunity from the most common civil lawsuits filed by abuse victims. Lawmakers were poised to grant the request, but they scrapped the proposal at the last minute after an IndyStar story detailing abuse allegations at Pierceton Woods.

Rep. Victoria Garcia Wilburn, a Democrat, worked across the aisle to get the new provision amended into a bill sponsored by two Republicans, Sen. Greg Walker and Rep. Chris Judy. The bill also codifies qualifications for case managers and others who work in residential facilities.

In a statement, Garcia Wilburn called the measure “an important step forward in empowering residential care facility employees to report suspected abuse, especially as more accounts of abuse at residential facilities have come to light.”

“The children who reside at residential care facilities often have experienced sexual abuse prior to their time at the facility, and it horrifies and saddens me that anyone would take advantage of a child in such a vulnerable state,” she said. “I believe that this will make progress in ensuring that all children at residential care facilities are kept safe and treated with the care, concern and respect they deserve.”

Her statement credited investigative reporting for prompting the legislation.

“The law always comes before any facility ‘policy,’ and we’ve made this crystal clear for employees and administrators alike,” she said. “This code clarification has been a year in the making ever since the Indianapolis Star published an investigation about several employees’ abuse of residents at Pierceton Woods Academy.”

Pierceton Woods, a faith-based nonprofit whose CEO, Tim Smith, is running for Congress, has previously denied failing to protect minors from sexual abuse. In an email on Thursday, company spokesperson Curtis Smith, who is not related to Tim Smith, said, “The reason we supported this bill from the beginning is that we serve, support, and treat all our residents with unconditional respect, and always have.”

Neither DCS nor the governor’s office immediately responded to messages seeking comment.

Garcia Wilburn and other lawmakers say there is still more work to do.

Several related proposals failed to advance during this year’s legislative session, including a measure from Rep. Becky Cash that would have increased criminal penalties for failing to report abuse.

“My hope is that we can get a much larger piece of legislation to protect children and young adults in residential facilities next year,” Cash, a Republican, said. “I am also committed to getting legislation regarding abuses in youth sports and failure to report those abuses passed. We have a lot of work to do to protect children.”

by Justin Elliott and Ken Armstrong

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Arise Virtual Solutions, a work-at-home customer service company, will pay $2 million to workers in the District of Columbia to settle a lawsuit alleging the company failed to pay minimum wage and overtime.

The company, which did not admit wrongdoing, will pay an additional $940,000 to the District of Columbia in civil penalties and stop operating there.

The lawsuit by the D.C. attorney general was sparked by a 2020 ProPublica investigation that revealed how Arise required workers to pay for the company’s training as well as monthly fees in order to take customer service calls on its “platform.” The workers, who are mostly women and work from home, answer customer calls for major corporations such as Comcast and Disney, which contract with Arise.

The company classifies the workers as “independent contractors,” like Uber drivers. Such classification allows the company not to pay minimum wage or offer other labor protections. Customer service representatives told ProPublica, however, that the idea that they were independent was largely a fiction. Arise and the large corporations for whom they answered calls maintained a high level of control over their jobs.

“This settlement puts more than $2 million into the pockets of workers Arise took advantage of in a misclassification scheme — an illegal practice that is, unfortunately, all too common in the District,” D.C. Attorney General Brian Schwalb said.

That money will be distributed among more than 250 workers in the district. Specific payouts will depend on several factors, including how much unpaid time each person worked.

Arise, which is based in Miramar, Florida, is owned by private equity giant Warburg Pincus. In a statement, an Arise spokesperson said: “While we disagree with the office of the Attorney General’s allegations, and their efforts to deprive business owners in the District of the economic opportunities that the Arise Platform provides, we are pleased to have resolved this matter and we will continue to move our business forward outside of the District.”

The company is facing a separate lawsuit filed by the U.S. Department of Labor in federal court in Florida last year. The government accused Arise of misclassifying more than 22,000 employees as independent contractors. The Labor Department’s lawsuit, which asks the court to force Arise to pay those workers back wages and damages, “may be the largest misclassification case in its history,” an agency news release says.

A Labor Department spokesperson said the agency had no comment on the case, saying it’s still in litigation.

In its complaint, the Labor Department recounts much of the litigation history against Arise that ProPublica reported on in its initial story, noting, for example, that two separate arbitrators have found that the company treated employees as independent contractors. One agent in the Arise network who won in arbitration, Tami Pendergraft, paid about $1,500 for home office equipment, paid for a background check and training, devoted 44 unpaid days to passing a certification course, and then worked three weeks fielding telephone calls from AT&T customers. After all that, she got a single paycheck for $96.12.

Arise, in court records, denied the Labor Department’s allegation that it misclassifies workers. Referring to the agents as “service partners,” Arise says they are independent contractors who “control their service schedules and have flexibility to provide customer support services to clients whenever and wherever they want to service.”

“This independent contractor model,” Arise writes in court records, “has benefitted many groups who have been poorly served by a regimented employment model, including disabled individuals, veterans, caregivers, and others who particularly benefit from such flexibility.”

The Arise spokesperson said the company disagrees “with the Department of Labor’s efforts to take away the opportunities that the Arise Platform provides. We have and will continue working with the Department of Labor to answer questions and illustrate how we appropriately use the independent contractor relationship to protect flexibility and increase economic opportunity.”

by Brandi Kellam

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

The Virginia legislature has approved creating a statewide commission to investigate the role of public colleges and universities in displacing Black communities.

The legislature’s action represents a milestone for the budding national movement to seek compensation for families dispossessed by university expansion. It follows a 2023 series by ProPublica and the Virginia Center for Investigative Journalism at WHRO, which showed that universities nationwide have uprooted tens of thousands of families of color, contributing to Black land loss and lagging rates of Black home ownership. The series, which detailed how the creation and expansion of Christopher Newport University in Newport News, Virginia, swallowed up a Black neighborhood, spurred city and university leaders there to create a similar task force in January.

The state budget passed by the legislature Saturday would establish a commission to determine whether any public institution of higher education in Virginia “has purchased, expropriated, or otherwise taken possession” of properties in Black neighborhoods to establish or expand a campus, and whether compensation would be “appropriate” for the property owners or their descendants, according to the bill. The commission will also research similar acquisitions in other states to provide context. The panel would report its findings annually to the legislature and submit final recommendations by July 2027. National higher education groups said they are unaware of any other statewide commissions studying the issue.

The Virginia commission would include 10 legislators, the state’s two top education officials and seven members of the public. Gov. Glenn Youngkin has until April 17 to sign the budget; he could also veto specific line items such as the commission’s funding, which consists of $28,760 per year for members’ expenses. Commission staff will be paid separately by the state Division of Legislative Services.

“My country has gone from uprooting Black communities violently to legally doing it,” the Rev. Robin D. Mines, a Richmond minister, testified at a legislative hearing last month in support of the provision. “It is far past due time to do something about this and bringing hope to our communities.”

By documenting the confiscation and destruction of Black neighborhoods for higher-education facilities, the ProPublica-VCIJ series added to the debate over how universities address the legacy of racial injustice — both on their campuses and in the country as a whole. Numerous universities are grappling with their racial histories, even as red states are restricting classroom discussion of critical race theory, which holds that racism is ingrained in America’s laws and power structures.

Del. Delores McQuinn, a Richmond Democrat, introduced legislation in January to create the commission. McQuinn originally proposed allocating $150,000 a year, which was reduced in the conference committee process after her bill was inserted into the budget. She said she would request more funding if needed.

McQuinn, who will be a member of the commission, said she will seek input from other legislators, historians and families affected by university expansion. She said the commission would address “how we repair some of the damage that has been done, whether it is through actual dollars, or scholarships or other kinds of ways.”

She declined to speculate on whether the governor would veto the commission. Youngkin, a Republican, issued an executive order in 2022 to end the use in K-12 schools of what he called “inherently divisive concepts,” including critical race theory, which is more commonly taught in colleges and graduate schools. In a statement Saturday after the legislative session ended, Youngkin said that the legislature “sent me more than a thousand bills plus backward budgets that need a lot of work,” and that he would review and decide on them in the next 30 days.

In the past two decades, prominent universities including Harvard, Yale, Brown and the University of Virginia have issued extensive mea culpas describing their historical involvement with the slave trade and slave owners. In Virginia, a 2021 law required UVA and four other universities that were established before the Civil War and used enslaved laborers to search for descendants and make reparations through scholarships or community-based economic development and memorial programs.

The 2020 protests over the murder of George Floyd prompted more institutions to reexamine their history of racial injustice. Still, only a few universities have reckoned with the impact of their growth on communities of color. In 2022, Colorado lawmakers allocated $2 million in scholarships for families and descendants of the Auraria community in Denver. The establishment of the University of Colorado at Denver campus in the early 1970s and its subsequent growth displaced 350 families and reduced the predominantly Hispanic neighborhood to just 13 cottages and a grocery store. The scholarship program eliminates fees and tuition for students and families who lived in the community between 1955 and 1973.

In Athens, Georgia, former residents of the Linnentown neighborhood have sought redress for the taking of their community by eminent domain to develop dormitories for the University of Georgia in the early 1960s. Researchers estimated the property seizures cost Black families $5 million in current dollars, mostly due to underpayment for the land.

Commissioners in Athens-Clarke County, where that university is located, passed a resolution in 2021 urging the state to compensate the roughly 50 displaced families and their descendants. They set aside $2.5 million to build affordable housing and a community center. The University of Georgia, citing a state constitutional ban on voluntary public funding for third parties, has rejected the concept of reparations.

Virginia legislators began discussing redress for uprooted families in response to the ProPublica-VCIJ series and an accompanying documentary film, which both explored how Newport News’ all-white city council seized the core of a thriving Black community in and around Shoe Lane by eminent domain in the early 1960s to build Christopher Newport’s campus. City leaders wanted to “erase the Black spot” near a segregated country club. In the ensuing decades, the school acquired almost all of the remaining homes.

Following the first article in the series, Christopher Newport University President William Kelly acknowledged in a message to faculty and staff that the university’s progress “has come at a human cost, and we must continue to learn about and understand our complicated history.” Kelly, who became president last year, has also said that incoming freshmen will be taught at orientation about the college’s origins and evolution. In January, the city of Newport News and CNU announced a task force to review decades of property acquisitions and consider possible redress for displaced families.

Christopher Newport University has declined to comment to ProPublica or VCIJ on the joint local task force or the possible state commission.

Other Virginia state universities that absorbed Black communities have tried to make amends for their history. Old Dominion University’s expansion since the early 1960s diminished a once-thriving Black community in Norfolk called Lamberts Point. In the 1990s, the university established scholarships and a jobs program for current neighborhood residents.

A memorial on UVA’s campus acknowledges its centuries of mistreatment of Black people both during and after slavery, including employees and local residents. In 2020, UVA President Jim Ryan announced a goal to build as many as 1,500 affordable homes and apartments on property owned by the school and its affiliates. The housing would be open to residents outside the university community.

While the Virginia measure focuses on public universities because they were established by the state, private institutions have their own fraught history. The University of Richmond, for example, acknowledged in 2019 that part of the campus was built on top of a cemetery for enslaved persons. The university is planning a memorial to honor the people buried there.

McQuinn, the legislation’s sponsor, said that she has long been aware of the displacement of Black neighborhoods by universities, but that the ProPublica-VCIJ series spurred her to act. Several supporters of the proposal, including the heads of the statewide and Richmond chapters of the NAACP, attended the Feb. 9 subcommittee hearing in person or online.

Others submitted comments via the General Assembly’s portal. “I see an opportunity to right the wrongs of the past,” wrote a Richmond resident identifying himself only as Antoine. He added that the “pushback” against studying the history of racial injustice, like the university expansions themselves, is “reminiscent once again of the erasure of a culture.”

Louis Hansen contributed reporting.

by Sebastian Rotella and Kirsten Berg, ProPublica, and Garrett Yalch and Clifton Adcock, The Frontier

阅读简体中文版。 (Read in Chinese.)

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published. This article was produced in partnership with The Frontier. Additional funding for this story was provided by The Pulitzer Center.

It seemed an unlikely spot for a showdown between Chinese gangsters: a marijuana farm on the prairie in Kingfisher County, Oklahoma.

On a Sunday evening in late November 2022, a blue Toyota Corolla sped down a dirt-and-gravel road in the twilight, passing hay meadows and columns of giant wind turbines spinning on the horizon. The Corolla braked and turned, headlights sweeping across prairie grass, and entered the driveway of a 10-acre compound filled with circular huts and row after row of greenhouses. Past a ranch house, the sedan stopped outside a large detached garage.

The driver, Chen Wu, burst out of the car with a 9 mm pistol in his hand. Balding and muscular, he had worked at the farm and invested in the illegal marijuana operation.

Charging into the garage, Wu confronted the five men and one woman working inside. Like him, they were immigrants from China. Piles of marijuana leaves cluttered the brightly lit room, covering a table and stuffed into plastic bins and cardboard boxes.

Stacks and boxes of marijuana fill the garage where four people were shot to death on a farm, shown in a still image from a sheriff’s deputy’s bodycam video. (Kingfisher County Sheriff’s Department)

Wu aimed his gun at He Qiang Chen, a 56-year-old ex-convict known at the farm as “the Boss.” Chen had a temper; he was awaiting trial in the beating and shooting of a man two years earlier at a Chinese community center in Oklahoma City.

Before Chen could make a move, Wu shot him in the right knee. The boss fell to the floor, writhing in pain.

Wu held the others at gunpoint. He said Chen owed him $300,000 and told his hostages they had half an hour to get him the money.

If they didn’t, he said, he would kill them all.

Both the shooter and his victim were from Fujian, a coastal province known for mafias, immigration and corruption. They had come to America and joined a wave of new players rushing into the nation’s billion-dollar marijuana boom: Chinese mobsters who roam from state to state, harvesting drugs and cash and overwhelming law enforcement with their resources and elusiveness.

Now, their itinerant odysseys had collided in this remote outpost in the heartland. The clash left four people dead and unveiled an international underworld of dangerous dimensions.

Wild West

The bloodshed in Kingfisher County made national headlines, highlighting Oklahoma’s role as the latest and wildest frontier in the marijuana underworld.

From California to Maine, Chinese organized crime has come to dominate much of the nation’s illicit marijuana trade, an investigation by ProPublica and The Frontier has found. Along with the explosive growth of this criminal industry, the gangsters have unleashed lawlessness: violence, drug trafficking, money laundering, gambling, bribery, document fraud, bank fraud, environmental damage and theft of water and electricity.

Chinese organized crime “has taken over marijuana in Oklahoma and the United States,” said Donnie Anderson, the director of the Oklahoma Bureau of Narcotics and Dangerous Drugs, in an interview.

Among the victims are thousands of Chinese immigrants, many of them smuggled across the Mexican border to toil in often abusive conditions at farms ringed by fences, surveillance cameras and guards with guns and machetes. A grim offshoot of this indentured servitude: Traffickers force Chinese immigrant women into prostitution for the bosses of the agricultural workforce.

The mobsters operate in a loose but disciplined confederation overseen from New York by mafias rooted in southern China, according to state and federal officials. Known as “triads” because of an emblem used long ago by secret societies, these criminal groups wield power at home and throughout the diaspora and allegedly maintain an alliance with the Chinese state.

In 2018, the mafias set their sights on Oklahoma when the state’s voters approved a ballot measure that legalized the cultivation and sale of marijuana for medicinal purposes. The law did not limit the number of dispensaries or growing operations – known in the industry simply as “grows.” It requires marijuana businesses to have majority owners who have lived in the state for two years, and it bars shipping the product across state lines. But limited enforcement enabled out-of-state investors to recruit illegal “straw owners” and to traffic weed clandestinely across the country. And land was cheap. In this wide-open atmosphere, the industry grew at breakneck speed and, regulators say, is now second only to the oil and gas industry in the state.

Since Colorado became the first state to legalize marijuana for personal use in 2012, a patchwork of marijuana-related legislation has developed across the country. State authorities generally require licenses and put limits on cultivation, and federal law prohibits interstate sales. But steep taxes on legal products and gaps and differences in laws across states have created the conditions for a massive black market to thrive.

A body-camera image shows a law enforcement officer responding to the murders at the marijuana farm. (Kingfisher County Sheriff’s Department)

Oklahoma has quickly become a top supplier of illicit weed. Although street prices fluctuate and calculating the value of a black market is complex, officials estimate the value of the illegal marijuana grown in the state at somewhere between $18 billion and $44 billion a year. State investigators have found links between foreign mafias and over 3,000 illegal grows — and they say that more than 80% of the criminal groups are of Chinese origin.

The federal response, however, has been muted. With the spread of legalization and decriminalization, enforcement has become a low priority for the U.S. Department of Justice, anti-drug veterans say.

“The challenge we are having is a lack of interest by federal prosecutors to charge illicit marijuana cases,” said Ray Donovan, the former chief of operations of the Drug Enforcement Administration. “They don’t realize all the implications. Marijuana causes so much crime at the local level, gun violence in particular. The same groups selling thousands of pounds of marijuana are also laundering millions of dollars of fentanyl money. It’s not just one-dimensional.”

The expansion into the cannabis market is propelling the rise of Chinese organized crime as a global powerhouse, current and former national security officials say. During the past decade, Chinese mafias became the dominant money launderers for Latin American cartels dealing narcotics including fentanyl, which has killed hundreds of thousands of Americans. The huge revenue stream from marijuana fuels that laundering apparatus, which is “the most extensive network of underground banking in the world,” said a former senior DEA official, Donald Im.

“The profits from the marijuana trade allow the Chinese organized criminal networks to expand their underground global banking system for cartels and other criminal organizations,” said Im, who was an architect of the DEA’s fight against Chinese organized crime.

U.S. law enforcement struggles to respond to this multifaceted threat. State and federal agencies suffer from a lack of personnel who know Chinese language and culture well enough to investigate complex cases, infiltrate networks or translate intercepts, current and former officials say. A federal shift of priorities to counterterrorism after 2001 meant resources dedicated to Chinese organized crime dwindled — while the power of the underworld grew.

And the shadow of the Chinese state hovers over it all. As ProPublica has reported, the authoritarian regime and the mafias allegedly maintain an alliance that benefits both sides. In exchange for government protection, Chinese mobsters deliver services such as illegally moving money overseas for the Communist Party elite and helping to spy on and intimidate Chinese immigrant communities, according to Western national security officials, case files, Chinese dissidents and human rights groups.

Because China has emerged as the top geopolitical rival of the United States, carrying out brazen espionage and influence activities in this country, the spread of Chinese mafias in Oklahoma and elsewhere also poses a potential national security threat, state and federal officials say.

Leaders of Chinese cultural associations in Oklahoma and other states are allegedly connected to both the illegal marijuana trade and to Chinese government officials, ProPublica and The Frontier have found. A number of influential leaders have been charged with or convicted of crimes ranging from drug offenses to witness intimidation. (A second part of this series further explores that issue.)

“You’d be very naive to sit and say the Chinese state doesn’t know what Chinese organized crime is doing in the U.S.,” Anderson said, “or that there is not a connection between the Chinese state and organized crime.”

In February, 50 U.S. legislators wrote to Attorney General Merrick Garland expressing concern that Chinese nationals, “including those with potential ties to the Chinese Communist Party,” are “reportedly operating thousands of illicit marijuana farms across the country.”

The bipartisan group of lawmakers, who included all but two members of Oklahoma’s congressional delegation, asked whether federal authorities are investigating CCP connections to the marijuana underworld and how much illicit revenue returns to China.

The Department of Justice plans to respond to the questions raised by the legislators, a department spokesperson said in an emailed statement.

“The Department is working on developing a marijuana enforcement policy that will be consistent” with federal guidance related to state legalization initiatives, said the spokesperson, Peter Carr. “Among the federal enforcement priorities under that policy is preventing the revenue from the illegal distribution of marijuana from going to criminal enterprises, gangs, and cartels.”

The department declined to comment about other issues raised in this story.

In response to a list of questions, a spokesperson for the Chinese embassy in Washington, D.C., said in an emailed statement that he was “not aware of the specifics” related to Chinese organized crime in the marijuana industry. But the spokesperson, Liu Pengyu, said China wages a determined fight against drugs, the “common enemy of mankind.”

“We always ask our fellow citizens to observe local laws and regulations and refrain from engaging in any illegal or criminal activities while they are abroad,” Liu said in the written statement. “The Chinese government is steadfast on fighting drug crimes, playing an active part in international anti-drug cooperation, and resolving the drug issue with other countries including the US in an active and responsible attitude.”

ProPublica and The Frontier interviewed more than three dozen current and former law enforcement officials in the United States and overseas, as well as academic experts, defense lawyers, farmworkers, Chinese dissidents, Chinese-American leaders, human rights advocates and others. Some sources were granted anonymity to protect their safety or because they were not authorized to speak to the media. Reporters reviewed thousands of pages of court files, government reports, news reports and social media posts in English, Chinese and other languages.

(Stefano Summo for ProPublica) California Dreams

He Qiang Chen came to New York about 30 years ago from the Changle district outside Fuzhou, the capital of Fujian.

Chen and his older brother opened a restaurant and a laundry in the Bronx and became legal U.S. residents. By the early 2000s, they had moved to North Carolina, where they also ran restaurants, according to public records and law enforcement officials. They shuttled back and forth to New York, buying properties in and around Flushing, which has a vibrant Chinese business district. The area has also developed a reputation as a bastion of Chinese crime bosses with nationwide reach, leading to a refrain in law enforcement: “All roads lead to Flushing.”

Until about five years ago, public records indicate that Chen’s encounters with the justice system consisted of repeated tickets for speeding and reckless driving.

In 2017, though, the brothers launched into the marijuana racket at a level that would make investigators think they’d been involved in crime for a while. They went to California, where Chen paid $825,000 for a four-bedroom house behind a wrought-iron gate in the San Joaquin Valley about 35 miles from Sacramento.

The semirural lot was near a winery and an equestrian center. But Chen wasn't interested in genteel pastimes. Along with his romantic companion, a 43-year-old woman from San Francisco named Fang Hui Lee, Chen and his brother got to work converting the spacious barn into a cannabis plantation.

Several associates also established themselves in the Sacramento area. A 39-year-old fellow transplant from North Carolina, Yifei Lin, bought a suburban house and set up a clandestine indoor grow, court records show.

The cross-country move was part of a migration of criminal groups into the marijuana industry. Other destinations included Colorado and the Pacific Northwest. California law limited cannabis for personal use to six plants and required commercial growers to get a license. With criminal penalties diminishing, the goals of legalization were to establish regulation, generate tax revenue and eliminate organized crime from the picture.

Instead, the low risk and fast money set off a feeding frenzy. The players who established clandestine grows included Mexican cartels, Cuban immigrant gangs and longtime locals. But the Chinese crews were the biggest and best organized. They smuggled their product by car, truck and plane to the East Coast, where profit margins were stratospheric.

In this rapacious subculture, mobsters went into subdivisions and snapped up a half dozen homes at a time. In San Bernardino County, east of Los Angeles, a federal court convicted a real estate agent in 2020 for a typical tactic: paying “ghost owners” to fly in from China posing as buyers, sign paperwork and go home, according to case files and interviews.

The bosses brought in recent Chinese immigrants to tend indoor crops, often stealing industrial quantities of water and power from public utility systems for their operations. Grow houses created a nefarious mix of risks: toxic fumes from banned pesticides, deadly fires from makeshift electrical bypasses, volatile chemicals and flammable equipment. The presence of drugs, cash and weapons was a magnet for crime, and the blighted homes hurt property values.

In November 2018, Sgt. George Negrete, a detective for the San Joaquin County Sheriff’s Office, got a tip about Chen’s illegal grow.

Doing surveillance on foot from an adjacent water treatment facility, Negrete saw telltale signs, such as spray foam filling the seams of the barn walls to mask heat, light and odor. Utility records showed that the electric bill had spiked from $170 a month to more than $2,000 per month after Chen bought the property, indicating sustained use of air conditioning and high-intensity lights.

On Dec. 13, deputies served a search warrant. They found 3,835 plants and arrested the Chen brothers, Lee and two other men, court documents say. Chen claimed he didn’t speak English. But he admitted he was in charge. He told Negrete that someone had advised him marijuana was a good business.

“They weren’t scared or afraid,” Negrete said in an interview. “It was like regular business for them.”

The crew had slept on mattresses on the floor. Lee apparently supervised the day-to-day work. And deputies found two .40-caliber pistols, court documents say. Firearms were unusual at Chinese-run grows that Negrete had raided.

“It made me think they were at a higher scale in an organization,” the detective said.

Cash and Discipline

The arrests of the Chens and their associates happened during a state-federal crackdown in the Sacramento area known as Operation Lights Out.

On the day of the raid on Chen’s house, federal prosecutors indicted a Sacramento real estate broker, accusing her and other suspects of teaming with financiers in Fujian who wired millions of dollars to acquire houses for indoor grows through fraudulent maneuvers, according to a criminal complaint. Authorities also seized more than 100 houses.

The elaborate and brazen nature of the alleged conspiracy led investigators to believe it involved the triads, according to three former federal officials who declined to be named because they were not authorized to discuss the case.

Suspects used banks in China to wire money to the U.S. defendants in suspicious and obvious increments, according to the criminal complaint and former federal officials. Yet there was no interference from the most powerful police state in the world. Although hard proof was elusive, two former senior U.S. officials told ProPublica they suspected Chinese officials protected the scheme and may have benefited from it financially.

“There was no question in my mind that there was at least Chinese government awareness of this,” a former senior Department of Justice official said. “There was no way they didn’t see the movement of the money going to the same people in the United States. But could we prove it? We suspected Chinese officials were complicit.”

Although the prosecution had a big impact by combining the might of the FBI, DEA, IRS and Homeland Security Investigations, it was one of the few federal offensives against Chinese networks involved in marijuana.

Still, DEA financial investigations around the country revealed that the emerging marijuana empire intersected with the networks laundering billions of dollars for Latin American drug lords. Some of the funds from the laundering returned to China, but a lot was reinvested into new U.S. marijuana ventures, current and former officials said.

The marijuana proceeds were “another massive bucket of money” with which high-level Chinese crime bosses funded interconnected rackets such as the money laundering and migrant smuggling, said former senior DEA official Christopher Urben, who is now a managing partner at the global investigations firm Nardello & Co.

Agents marveled at the scope of the enterprise and the lack of turf wars. Around 2019, the DEA learned that triad bosses had traveled from China to sit-downs in New York, where they issued directives and kept the peace nationwide, according to Urben and other current and former officials. New York had become the command hub for marijuana as well as money laundering.

“The discipline involved is incredible,” Urben said. “How are we having thousands of workers moved into the country and among states? How are all these groups doing this without more conflict or violence? How do you ensure that all these mid-level managers get along, with all this money, all this marijuana? The only way you can do it is with an organized crime apparatus.”

In the federal prosecution in Sacramento, a defendant pleaded guilty this Feb. 27. The real estate broker and two others are still awaiting trial.

Meanwhile, Chen and his associates pleaded no contest to misdemeanors in state courts, which sentenced them to probation. Wasting no time, the crew headed for Oklahoma in 2020.

In contrast to California, Oklahoma did not limit the size of grows. As long as the operations had a nominal local owner and a medical marijuana license, they could spread dozens of greenhouses capable of holding tens of thousands of plants over a cheap parcel of farmland.

Some Chinese groups redeployed by air, according to officials and case files. Federal agents began detecting flights of private planes from California to rural airfields in Oklahoma. Couriers aboard the aircraft carried hundreds of thousands of dollars in cash to buy farmland, sometimes for twice or three times its value. To dodge federal interdiction teams, some pilots filed flight plans for one airstrip, then diverted to another.

And money poured in from China. Around 2020, one group crowdfunded Oklahoma marijuana ventures through an invitation to investors on WeChat, the popular Chinese social media platform, said Mark Woodward, spokesperson of the Oklahoma Bureau of Narcotics. U.S. investigations show that WeChat, although heavily monitored by Chinese security forces, is often a forum for discussions of criminal activity.

Oklahoma’s marijuana industry surged to “an astronomical level,” said Ray Padilla, a Denver-based DEA agent. He estimated that 90% of Colorado’s illicit producers moved to the neighboring state.

Oklahoma was the new frontier, Padilla said. And it was “absolute insanity.”

Gunplay at the Association

A statue of a panda bear sits like a chunky sentry atop a pillar on Classen Boulevard in Oklahoma City’s Asian District.

Mixing a longtime Vietnamese community with a more recent Chinese one, the boulevard is lined with stores, restaurants, massage parlors, nail salons and, block after block, marijuana dispensaries.

Behind the panda, a ground-floor suite in a corner mini-mall houses the local chapter of the American Fujian Association.

Shortly before dusk on Dec. 8, 2020, a black Mercedes SUV carrying Chen and Lin pulled up at the mini-mall accompanied by two other cars. The crew had driven an hour from their new farm in Kingfisher County. They were looking for Jintao Liu, who had also relocated from Sacramento after his marijuana site got busted, court documents show. Liu and Chen had been feuding since Chen had failed to pay him for organizing a delivery from California.

When Liu had asked him to pay the $2,000 debt, Chen had become infuriated and began to terrorize Liu and his wife with threatening phone calls and texts showing photos of guns. Chen squared off with Liu at a gathering and punched him in the jaw. Later, Chen threatened to kill his wife and three children, court records say.

The reasons for the rage remain somewhat murky. Asked during a court hearing why Chen was so angry if he owed the money, not the other way around, Liu answered, “He did not want to pay. He was this kind of a person.”

On the afternoon that Chen and his crew appeared outside the Fujianese association, Liu was inside watching a friend play cards, according to court testimony. Liu and several other men came out. A brawl ensued.

“Shoot him,” Chen told Lin, according to witnesses.

Lin pulled a gun and fired, the bullet fracturing Liu’s hipbone, according to court documents.

Police soon arrested Chen and Lin. A search of Chen’s house in suburban Edmond turned up three pistols, 27.5 pounds of marijuana, $97,000 in cash and eight vials of ketamine, the party drug of choice in the Chinese underworld, court records say.

Prosecutors charged Chen and Lin with assault and battery with a deadly weapon and drug offenses. The men made bail and went right back to the grow. (Lin has pleaded not guilty. His lawyer declined to comment.)

An Oklahoma Bureau of Narcotics agent searches for witnesses and survivors at the Kingfisher County farm where four people were shot to death. (Kingfisher County Sheriff’s Department)

Their farm was about 13 miles from Hennessey, population 2,000. Lin had bought the 10-acre spread for $280,000, court documents say. To evade a state residency law, he paid cash to a local man named Richard Ignacio to pose as the 75% owner of the medical marijuana business and obtain a license, court documents allege. Ignacio had allegedly been drafted as a straw owner by an Oklahoma City accountant, a 20-time felon named Kevin Pham, who has been charged in connection with the Kingfisher farm and other grows, court documents say. Ignacio told investigators that he “earned significant income” acting as a hired front man.

Ignacio pleaded guilty last year to being a straw owner for the Kingfisher farm. He and Pham have pleaded not guilty to other charges and are awaiting trial. They could not be reached for comment.

Lin lived at and managed the place for Chen, according to court records and interviews. For equipment, three companies in China shipped about 440,000 pounds of greenhouse parts. Even among the vast marijuana farms in Oklahoma, the spread was unusually large: it contained over 100 greenhouses and several indoor grow houses, interviews and satellite images show.

The closest neighbor, Gary Hawk, lived about a mile away. He had grown up at the place next door when it was a dairy farm owned by his parents. There was tension with the newcomers from the start. After a neighboring farmer used a plane for crop dusting, men at Chen’s farm threatened to shoot it out of the sky, Hawk said in an interview.

“The mail carrier would go by and she would stop to deliver mail there,” he said. “They would come out of the house and one guy would come out with a machete and one guy would come out with an AR-15. That was just to pick up the mail. ”

The farm employed an armed security officer stationed in a guard hut and as many as two dozen laborers, according to law enforcement officials and others who spent time there. Workers slept in trailers, the garage or the cluttered main house, where meals were prepared throughout the day and there was only one bathroom. During an inspection by fire marshals that found multiple safety violations in 2021, most of the employees presented Chinese identification and U.S. immigration documents.

Neighbors complained about uncollected trash blowing into nearby pastures and endangering cattle, said Sgt. Michael Shults of the Kingfisher County Sheriff’s Department.

“We’ve been out there several times explaining to them you need to put trash up,” Shults said in an interview. “Cattle get into plastics that are blowing around, you know, cattle will eat almost anything.”

Deputies soon became convinced that Chen’s crew, like many others, was trafficking its product on the black market in other states. In April 2021, Shults and other deputies intercepted a vehicle carrying 46.8 pounds of marijuana and arrested the driver, who was from Texas and did not have an Oklahoma cannabis transport license. Surveillance showed that she was one of two suspected couriers who had picked up bales at the farm that day, according to Shults and court documents.

Awash in Weed

By 2021, a mysterious investor had joined the crew at the Kingfisher farm.

Chen Wu (also known as Wu Chen, but not related to the brothers) was in his mid-40s and from Fujian, according to officials and Chinese media reports. There are gaps in his past that investigators are still trying to fill. What they do know suggests he was a heavyweight: He had ties to Chinese criminal networks involved in money laundering, drug trafficking and migrant smuggling across the country and overseas, according to officials and court records.

As a young man, Wu lived illegally in Spain, whose Chinese population has grown rapidly in the past two decades. In 2000, police on the resort island of Mallorca arrested him for entering the country illegally, Spanish law enforcement officials said.

As often happens, though, he managed to stay. He sought work authorization in 2003 and gave an address in a gritty neighborhood of Madrid. Five years later, he got in trouble for using someone else’s identity, officials said, and Spanish police issued an arrest warrant for him in 2010.

But he had already moved on. Wu spent time in the Caribbean, including Cuba. Arriving in the United States around 2016, he bounced around the country pursuing illicit schemes, officials said. In Minnesota, he married the owner of a restaurant and got legal status. During his divorce in 2020, Wu claimed in legal filings to have only about $18,000 to his name, records show.

Yet he moved to Oklahoma and invested in Chen’s farm. After months working there, he argued with his partners over money and left.

By then, the state was awash in weed.

Oklahoma Bureau of Narcotics agents and Kingfisher County deputies search through buildings on the 10-acre marijuana farm. (Kingfisher County Sheriff’s Department)

The number of licensed marijuana grows in Oklahoma peaked at nearly 10,000 at the end of 2021. Authorities suspected most of them of trafficking on the black market. One Chinese criminal group oversaw at least 400 grows. Another outfit smuggled truckloads to the East Coast every week, selling each for over $20 million, before investigators dismantled it.

Whether bosses or grunts, most of the newcomers were from New York, where a mob hierarchy oversees the illicit marijuana trade in Oklahoma and swoops in to collect the profits, according to law enforcement officials and court files.

“You have many different levels,” said Anderson, the state anti-drug director. “Some overseeing grows. Then another upper echelon that controls money. … They’re never around except to collect money.”

The boom caused prices to crater, hurting the legal industry. And it brought a generalized surge of crime. At airports, wary-looking Chinese immigrant laborers with backpacks became a familiar sight to law enforcement officers. So did human traffickers accompanying flashily dressed prostitutes to brothels set up for overseers of the marijuana farms. Illegal casinos appeared, seizures of ketamine soared, and robberies and violence plagued grows, dispensaries and stash houses, according to court cases and law enforcement officials.

There was complex criminality as well. In a case investigated by the FBI, a Chinese ring based in New York and Oklahoma allegedly used a cryptocurrency scheme to steal over $10 million from banks and other financial institutions. One defendant, who is now awaiting trial, was involved in a marijuana grow with an associate of Chen’s Kingfisher County crew, according to law enforcement officials and public records.

The victims of another scam were law-abiding Asian Americans. Cybercriminals manipulated the computer system of the Texas Department of Public Safety to obtain thousands of driver’s licenses destined for Asian Americans, tricking authorities into mailing the licenses to marijuana farms in neighboring Oklahoma. The suspects used the licenses for fraudulent purchases or sold them on the underground market. Police arrested the accused mastermind in New York and extradited him to Texas last April to stand trial.

Before marijuana legalization, Oklahoma was “a pretty quiet state,” said Tony Lie, president of the Oklahoma Chinese Association. “We didn’t have any Chinese criminal gangs coming here.”

Lie has lived in Oklahoma for more than 30 years. Members of his longtime organization come from several regions in mainland China as well as Hong Kong and Taiwan. In contrast, most of the newcomers are Fujianese. Lie said the ills of the marijuana industry have hurt the image of Chinese Americans in the state.

“We don’t want people to come to Oklahoma to do something bad for the Chinese community,” Lie said.

The shooting at the Fujianese association in 2020 had opened a window into a fast-evolving underworld.

But it turned out to be just a prelude.

Pitch-Black Night

Shortly before 8 p.m. on Nov. 20, 2022, Kingfisher County Sheriff Dennis Banther alerted his deputies to a hostage incident at a farm near Hennessey.

“Everybody go 10-8,” the text message said: Go in service and rush to the scene.

Shults was the third to arrive. Four gunshot victims lay dead in the garage, and the shooter was on the loose. Deputies feared he was hiding in the sprawl of agricultural buildings known as hoop-houses.

“It was pitch black,” Shults said. “When you’re out there in the pitch dark, in the black night, and you’ve got four people down, been executed, and you don’t know if the shooter’s still on scene or not … it’s find the shooter. Survival.”

Kingfisher County deputies discovered the bodies of four victims among stacks of marijuana in the garage. (Kingfisher County Sheriff’s Department)

The sergeant came upon a wounded man lying in a black Ford F-150 pickup truck. It was Lin, the farm manager who had been the accused gunman at the Fujianese association, according to court documents.

A second survivor emerged from the darkness. A deputy struggled to ask the farmworker urgent questions using Google Translate on his phone. Deputies found another worker who had recorded part of the incident on a cellphone, leaving it near the garage with the camera on before fleeing, according to court documents and interviews.

The survivors said the killer was Wu, who had worked at the farm until about a year earlier. He had arrived in his Toyota Corolla and shot Chen and a dog that was in the garage. Wu then told his hostages he would kill them if they didn’t hand over $300,000 in half an hour.

“The Boss told his girlfriend, who was inside the garage at the time, to call her brother to get the money,” a witness told police.

As minutes passed, Wu became increasingly agitated. The hostages tried to stop Chen’s bleeding by wrapping a long-sleeved shirt around his knee as a makeshift tourniquet.

But Chen “was not doing very well,” the witness said. In a grim exchange, the wounded boss told the gunman “to finish him off.”

Wu pumped two bullets into Chen’s chest. Then, two hostages rushed at the gunman, who let loose a barrage that killed Chen’s brother, Chen’s girlfriend Lee and a newly hired employee. The wounded Lin ran outside and took refuge in the truck.

Although the phone video didn’t capture the actual shooting, it recorded the sound of gunshots and showed the gunman leaving the garage.

Emergency personnel swarmed the scene. A helicopter evacuated the wounded man. Deputies spent all night doing a sweep of the grounds, finding another terrified worker hiding in a barn.

At one point, a sedan with New York plates pulled up to the farm. An Asian man rolled down the window, startling deputies, and said he “was sent” to pick up the workers remaining onsite, a deputy said.

“You need to back him off,” a sheriff’s lieutenant yelled to his deputies. Afterward, they would wonder who had sent him so quickly.

In one area of the dark compound, deputies thought they were trudging through mud. After sunrise, they realized it was human excrement — a sign of the conditions in which the farmworkers lived.

Meanwhile, the gunman sped east toward Florida. From the road, he called people in Florida, including a Chinese organized crime figure suspected of involvement in drugs and human trafficking, according to court records and law enforcement officials familiar with the case.

Investigators believe Wu wanted help from smugglers to flee the country, possibly to Cuba, which doesn’t have an extradition treaty with the U.S., court records say. One affidavit for search warrants for Wu’s phones and online accounts seeks evidence “relating to the planning, preparation and actions taken to facilitate human smuggling.”

Soon after Wu got to Miami Beach, however, a license plate reader detected his car. Police arrested him two days after the murders. During an extradition hearing, Wu told the judge his life was in danger.

“If I go back to Oklahoma, I’ll be killed in the prison or jail,” he said through an interpreter. “I’m afraid I will be killed because these people are mafiosos.”

(Stefano Summo for ProPublica) Aftermath

It seemed ironic: a mass murderer begging the court for protection. But a strange story told by a deputy who brought him back suggests that his fears may have been well founded.

Kingfisher County sheriff’s Lt. Ken Thompson had 25 years of experience transporting prisoners. He and another deputy drove nonstop to Florida in a marked Chevrolet Tahoe. In Miami, they checked into a motel near the airport in the evening, planning to sleep a few hours before picking up Wu from the Miami-Dade County jail, Thompson said in an interview.

They changed their minds, Thompson said, because “a weird deal happened.”

Looking out of the window of his motel room, Thompson said, he saw a car pull up next to his marked police vehicle in the parking lot. Another car appeared, then a third. The three cars drove around the motel as if doing surveillance, he said.

The deputies concluded that they “didn’t really feel comfortable sitting in this place,” Thompson said. They decided to take custody of Wu and hit the road.

After the deputies left the jail with Wu in the back seat, the three cars from the motel reappeared, Thompson said, and shadowed the Tahoe on the highway.

Thompson said he did evasive maneuvers to lose them, exiting abruptly and returning to the highway miles later.

“It's just a feeling, a gut feeling that you get, and the fact that they all just kind of just paced right around us,” he said. “I mean, they flew right up on us, but then they just locked down to our speed. So it was a weird deal.”

Thompson suspects that people in organized crime somehow located the deputies in Miami. He said he did not know if their goal was to harm Wu, to free him or simply to monitor a case that was causing a commotion.

The prisoner was polite and obedient during the cross-country ride, getting out for bathroom breaks and accepting a McDonald’s breakfast burrito that the deputies offered him. After they crossed the Oklahoma state line, though, his demeanor changed, the lieutenant said.

“You couldn’t pry him out of that car,” Thompson said. “Once he reached Oklahoma, he wouldn’t get out of the car.”

On Feb. 9, Wu pleaded guilty to the four murders and assault and battery. The judge sentenced him to life without possibility of parole. (He declined an interview request.)

The quadruple murder made international headlines and set off a flurry of investigative activity and political attention. A state crackdown has reduced the number of growing operations by almost half, officials say.

Chinese immigrants involved in the marijuana industry say law enforcement has been excessively harsh on them since late 2022. Qiu (Tina) He, who operated a marijuana-related consulting firm that is under investigation, said in an interview that many Asian investors have become disillusioned by what she called discriminatory treatment and the risks of the business. She denied wrongdoing in her case and predicted the state will suffer from the loss of tax revenue if Asian investors leave.

“We are funding Oklahoma,” she said. “Oklahoma City will be like a ghost town if we leave.”

Law enforcement officers search dozens of metal and plastic marijuana grow houses at the Kingfisher farm the day after the quadruple homicide. (Kingfisher County Sheriff’s Department)

The crime in Kingfisher County was a relatively unusual eruption of violence in the Chinese underworld. Law enforcement experts say the frontier atmosphere in Oklahoma is likely a result of the sheer amount of money generated by the cannabis trade and the number of criminals it has attracted. The growing wealth and power of Chinese organized crime is causing clashes elsewhere in the country as well, experts said.

“Maybe it’s more like the Wild West as these groups keep spreading,” said Urben, the former DEA official. “You are going to have violence even if someone is controlling from above. I think there would be even more conflict if the triads were not so involved.”

by ProPublica and Oregon Public Broadcasting

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

Salmon are essential to Columbia River tribal people. These fish represent not only a food source but a way of life. As a white kid growing up in the Pacific Northwest, Tony Schick heard a lot about salmon — how important they are to this region, and how much trouble they’re in now. But the history he learned was not the whole story. As an investigative reporter for Oregon Public Broadcasting and ProPublica, he’s been working to uncover and understand a more sinister version of events. And along the way, he connected with a guy named Randy Settler and his family.

Never miss the most important reporting from ProPublica’s newsroom. Subscribe to the Big Story newsletter.

Our new podcast “Salmon Wars” tells the story of salmon in the Northwest in a way you haven’t heard before — through the voices of one Yakama Nation family who have been fighting for salmon for generations. We’ll dive into hidden history. We’ll investigate who’s to blame for the salmon vanishing and what can be done before it’s too late.

“Salmon Wars” is listed as Season Two of the “Timber Wars” podcast series. You can listen to the new season in the audio player below, or follow the link to your favorite podcast app.

• Apple Podcasts
• Spotify

Episode 1: The Family

Host Tony Schick introduces us to Randy Settler and his family. The Settlers, members of the Yakama Nation, have been deeply affected by the Northwest’s salmon policies for generations. They lost their home, their primary food source, their ancestral fishing grounds. Randy and his parents went to jail for exercising their fishing rights, and they won some important victories along the way. Now, he’s passing the fight on to the younger people in the tribe.

Episode 2: The Treaties

To understand the war over salmon, we have to go back to 1855. That’s when chiefs from the Yakama Nation and other Pacific Northwest tribes signed treaties that are still used as the basis for laws and policies governing salmon fishing. Some tribal members believe the Yakama signed a treaty under duress. In some ways, this document represents the first in a multigenerational series of promises that the U.S. government made and broke. It also created a powerful legal framework the Yakama still use to advocate for fishing rights.

Episode 3: The Court Battles

Federal officials took away a way of life that had sustained Pacific Northwest tribes for centuries. So some tribal members became outlaws. In the 1960s and beyond, Native activists fought back against state and federal restrictions on their fishing rights — a period known as the “fish wars.” They held “fish-ins” and fought for their rights in court. Randy Settler’s parents won some major battles in the fish wars, but their methods were controversial even within their tribe.

by Topher Sanders, Dan Schwartz, Danelle Morton and Gabriel Sandoval

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

On a hot July afternoon in 2018, Gregory West found himself trudging through the mountains of northern Tennessee on what would be the last walk of his life.

The engineer and his conductor had been stuck behind a stalled train that had not budged by the end of their shift, and rail company officials told them to walk out to a road where a vehicle could meet them. It would be an hour’s journey up and down steep hills in 88-degree heat. And West, 57, had to lug two large bags of his belongings the entire way. Just as he reached the rendezvous point, he collapsed. The Campbell County medical examiner said West had pneumonia and hypertension, which decreased his oxygen supply before he died. His sister sued the railroad company, CSX, which settled with her for an undisclosed amount.

But none of that is reflected in CSX’s worker injury statistics. ProPublica only found out about it while reviewing lawsuits levied against the nation’s largest freight carriers in the past 15 years. West’s was one of at least 130 worker deaths and other injuries that were alleged to have happened on the job but that railroad companies never reported to regulators.

Among the others, according to the lawsuits, were a CSX conductor who suffered a fatal heart attack after doing physical labor on a subfreezing overnight shift and a contractor who lost three fingers rigging equipment in a Norfolk Southern rail yard.

The Federal Railroad Administration requires companies to report such incidents because knowing about them allows officials to spot broader lapses and hazardous working conditions. The agency’s statistics are the main way the public can view the businesses’ safety records, for which they must answer to their employees’ unions and their shareholders.

But, as ProPublica has previously reported, railroad companies go to extreme lengths to portray themselves as safer than they really are — retaliating against workers who report defects and silencing those who get injured. Officials with the FRA have said there is not much they can do about the forces — like the financial implications of appearing to admit liability and a culture that faults managers when employees get hurt on their watch — that can drive companies to quash injury reporting.

This tranche of missing injuries and deaths, however, exposes the clearest failure by regulators to hold companies accountable.

Much of the problem stems from the FRA’s porous reporting policies, which ProPublica found provide opportunities for companies to hide work-related injuries and deaths. Officials say they have spent the past five years working on revisions, which they plan to unveil this year. They said disclosing the details now would be a breach of the rulemaking process, but they mentioned that their changes could address issues raised by ProPublica’s reporting.

ProPublica's findings show the powerful rail companies have long benefitted from loopholes.

Though agency officials say they are aware of conflicts of interest that steer railroad companies toward keeping worker injuries quiet, FRA policies give the businesses broad latitude to determine whether injuries and even on-the-job deaths are work-related — and, thus, whether they need to be reported.

One reason companies give for opting out of reporting: Rail company officials believe a worker is lying, an argument the companies have made in court, and one juries and judges have sometimes rejected.

The agency also doesn’t require railroad companies to report certain injuries and deaths of contractors who are crushed or maimed by trains. Those incidents are supposed to be reported to a different agency by the contractor’s employer, which doesn’t tie them to the railroad’s record or allow them to be easily studied for possible safety reforms.

Empowered to levy fines up to $10,000 against companies that willfully fail to report injuries, and even to disqualify managers who do so, FRA officials say they will not be investigating the scores of unreported cases ProPublica provided them in a database — cases they confirmed were nowhere to be found in their records.

The bulk of the cases ProPublica found, including the deaths, happened more than five years ago. The FRA says it does not have the power to punish railroads for unreported injuries after that much time or even edit the safety record to reflect them. It attributes that to a law that applies to all federal regulators.

And though 11 of the alleged injuries ProPublica raised are newer — in two unreported cases, workers said they were fired after being hurt — officials said those won’t be reviewed either. They view lawsuits, which ProPublica used to find the cases, as “unreliable” sources of information.

The FRA is satisfied with its standard process for unearthing hidden injuries, an audit done of each rail company every two years. As part of these four-month deep dives, regulators say they pore through internal company documents to find injuries that were deemed unreportable, then review medical records and interview employees to determine whether the injury should, in fact, have been reported.

Officials didn’t have an explanation for how audits missed the two deaths ProPublica found and said they should have been submitted to the FRA based on the information reporters provided. “Despite our best efforts, regrettably there are cases of failures to report or to accurately capture all covered events,” the agency said in a statement, adding that “any gaps or voids in reporting are of concern and will prompt us to redouble our efforts,” that it expects companies to “faithfully abide” by the requirements and that it strives to continuously improve its data collection and validation.

Each of the railroads denied that they failed to report injuries, largely claiming that the cases either didn’t meet the reporting guidelines, as CSX argued about West’s death, or that the company didn’t believe the worker’s injury happened at work. “Those cases where CSX determined the events were not reportable are fully supported by the facts and evidence gathered by CSX through its thorough investigations of each incident,” the company said in a statement, adding that it was proud of its “best in class” reporting process and that it complies with FRA’s audits.

The Association of American Railroads, the industry’s lobbying arm, denied that underreporting is widespread and called ProPublica’s findings isolated incidents. The association pointed to the most recent injury statistics — the ones ProPublica has found are incomplete — to show the rails are the safest they have ever been.

But union leader Jared Cassity said ProPublica’s findings are further evidence that companies’ safety records do not capture the full range of dangers allowed to persist on the rails. “The system is rigged, especially when it comes to injuries,” said Cassity, the alternate national legislative director for the International Association of Sheet Metal, Air, Rail and Transportation Workers, or SMART.

“You see what they want you to see,” he said.

To find unreported injuries and deaths, ProPublica reviewed more than 5,000 federal lawsuits levied against the nation’s six largest freight railroad companies, the so-called Class 1s, from 2009 to 2022. For each complaint that mentioned a worker injury or death and had a detailed enough description of what happened, ProPublica consulted a 300-page FRA guidebook to determine which cases appeared to fit reporting requirements. Then, journalists combed through the agency’s online railroad injury database to see whether the incidents had been reported and, if not, asked the agency to double check its files.

Clear patterns emerged in cases that weren’t reported.

Unlike trauma deaths or amputations, the vast majority of unreported injuries were open to easier arguments that they were not work-related — sprained ankles, torn rotator cuffs, tweaked backs, strained tendons. One man said he had been in a port-a-potty when a track hoe struck it; another said he was hurt when the railroad’s transport vehicle crashed. One said he slipped along the ballast, the gravel that surrounds train tracks; another said he jumped from a train to avoid a collision.

Broadly speaking, railroads must tell the government about any on-the-job injury that requires medical care beyond diagnostic procedures like X-rays, that requires an employee to miss a day of work, or that lands an employee on light duty.

But rail officials have long found ways to argue that these less-visible soft-tissue injuries, unlike gaping wounds, could have happened off duty or for reasons not related to the work employees were doing.

“The guide gives us the right to make our best guess on a case, and then [the FRA has] to prove us otherwise,” said Tuesdi Sweatt, CSX’s then-senior manager of accident reporting and compliance, in a legal deposition in 2018.

BNSF engineer Scotty Bragg was operating a train near Hardy, Arkansas, on Nov. 17, 2021, when he said he encountered rough track and “experienced significant jostling” in a cab that didn’t have seatbelts. He said he injured his neck, back and spine, requiring surgery. A company official said in a deposition that a review of locomotive footage led officials to decide that Bragg hadn’t encountered rough track and wasn’t injured at work.

It was a familiar argument used against hurt workers. ProPublica has reported on cases in which companies presented video evidence that did not hold up to scrutiny in court, failing to convince juries that an employee was wrong or lying. At least two of these cases resulted in multimillion-dollar payouts to the workers. Despite the company’s denial of Bragg’s injuries, it did agree to settle his case. BNSF’s response did not address any of the unreported cases ProPublica sent the company in a spreadsheet along with an interview request.In a statement, BNSF said it takes its reporting obligations seriously and touted its safety record, which over the last decade, “produced the lowest number of injuries in our railroad’s history.”

The FRA allows companies to decide whether an injury was job-related or not, even when an employee dies at work.

In the case of West, the engineer who died in the mountains, the company said that because he suffered from a “personal condition,” his death didn’t have to be reported. In court, the company said West “suffered from multiple maladies and physical conditions, and as a result, it was not foreseeable” that a “one-half mile walk would cause or contribute to his death.”

The FRA said that even if companies don’t file reports, they must phone in all on-the-job deaths to the U.S. Coast Guard’s National Response Center, no matter the cause. But it is unclear what happens once the agency is contacted; these calls don’t become a part of an official injury record and it’s unclear what trend analysis, if any, is done with them.

CSX conductor Danny Byrom, 37, was working an overnight shift in an Illinois yard on Jan. 27, 2019, while the temperature was around 20 degrees. He bent over to remove a heavy piece of equipment. Afterward, he collapsed and died of cardiac arrest.

When asked about the case, FRA officials said it should have been reported because there was “probably a causal connection” between his work-related exertion and his death. CSX told ProPublica the company believes Byrom’s death wasn’t reportable because he suffered from a “personal condition.” His family’s lawsuit against the company is ongoing.

Agency officials said nontrauma deaths that appear to be natural aren’t likely to immediately spur a full investigation.

The omissions of these kinds of deaths from companies’ safety records — and the lack of any kind of investigation by the FRA — troubles Cassity, the union leader, because the deaths appeared to be related to work tasks. “You’re being forced to do it, and you die in the performance of it. … The fact they don’t consider that is … it’s unconscionable.”

The FRA should investigate all on-the-job deaths, he said, and determine itself whether they were work-related.

Such reporting would help the agency identify and eliminate hazards for workers, said David Michaels, former head of the Occupational Safety and Health Administration, which oversees injury and death investigations in most industries outside the rails.

“You certainly want events that occur at work to be reported for the agency to consider whether or not they deserve further investigation, and that will include heart attacks and asthma,” said Michaels, who is now a professor at George Washington University. “And by aggregating information from these investigations, it allows researchers to go in and use the data to better understand what’s going on in these workplaces.”

Had West and Byrom worked at a bank, or a restaurant, or some other American workplace, OSHA would have considered their deaths reportable, Michaels said.

But ProPublica found the plight of workers who are injured by trains — but who are not staff members of rail companies — may be even worse.

Kenneth Ivy was working for Riceland Foods at the company’s Jonesboro, Arkansas, rail yard in November 2013 when he said he noticed a Union Pacific freight car had been placed on a slope without its brakes applied. He said he attempted to apply the brakes and they wouldn’t work. The freight car rolled over Ivy, crushing part of his left arm and both his legs, which had to be amputated.

Because Ivy didn’t work for the railroad and the accident didn’t happen on Union Pacific land, government policies dictated that Union Pacific didn’t have to report it to the FRA. Instead, Riceland Foods reported it to OSHA. So now Union Pacific’s safety record doesn’t reflect the fact that its freight car grievously injured someone, nor did the regulator with expertise in rail safety investigate whether the brakes were faulty, nor could the agency use the incident to track similar injuries or learn whether there are any systemic hazards.

Union Pacific, which denied in court that the brakes were defective, said the worker tripped when he attempted to apply them to the moving freight car. The company noted to ProPublica that it was Riceland Foods that moved the rail car and Riceland Foods that was responsible for the switch operations. While that company settled with the injured worker, so did Union Pacific.

Though rail companies must report when contractors are hurt on their land, ProPublica found they have dodged that reporting requirement, too.

Contractor James Wheeler was rigging down a boom of heavy equipment in Norfolk Southern’s rail yard when a fellow contractor’s mistake resulted in Wheeler having three fingers on his right hand amputated. Norfolk never reported it, despite the fact that the incident happened on its land. The company did not comment on the case, but said it reviewed all of the unreported cases found by ProPublica and wound up reporting one of them to the FRA, “which was based on information added to a case months after the initial report was made internally. That update was made immediately.”

FRA officials said they believed the incident should have been reported, but because the injury happened in 2016, they told ProPublica that nothing further had to be done. The FRA said the five-year limit was a reasonable time frame.

The agency says it focuses its efforts on newer injuries and that its audits are rigorous and successful. Last year, the process caught Union Pacific managers hiding nearly 100 injuries that should have been reported.

“UP documentation clearly showed these incidents were reportable injuries,” the agency said. The company disciplined those involved, the FRA said, but the agency’s investigation is still open because a key witness in the case has filed an OSHA complaint against Union Pacific and won’t speak to the FRA until given clearance by his attorney. An agency spokesperson said the FRA expects to issue violations but as of now no fines have been levied. “Allegations that managers are incentivized to hide or ignore injured employees are false,” UP told ProPublica in a statement. The company also told ProPublica that its own audit process had found the “incorrectly classified” injuries and that the company had corrected them.

Agency officials said that most of the time, when they catch unreported injuries, they simply ask officials to reconcile the matter. The agency doesn’t separately track fines it gives for injury reporting violations, instead lumping together all the fines it levies against railroads for all kinds of reporting failures. ProPublica added up these kinds of fines levied against all Class 1 companies in 2022, the most recent year of data available. For the companies, which had $108 billion in combined revenue that year, the penalties added up to $30,011.

The agency told ProPublica it knows the penalties are too paltry to prevent the companies or their officials from attempting to hide injuries. Only Congress could increase the fines, a spokesperson said. “The proposed Railway Safety Act would allow for a substantial increase in the maximum civil penalty amount,” the spokesperson said. That bill, which received bipartisan support when it was introduced on the heels of last year’s catastrophic derailment that unleashed hazardous chemicals on East Palestine, Ohio, has since stalled in Congress.

Cassity said the FRA’s audit process allows railroads too much notice before the government arrives on site to check records. “It just just doesn’t go far enough,” he said, adding that he believes companies purposefully don’t fill out certain paperwork so they can hide injuries from the FRA and that there is little the agency can do to combat the practice.

He suggested that one way to get the fullest accounting of injuries would be for the FRA to devise a system where the reports come directly from employees. “Right now, the only way to get the facts is through a carrier that, quite frankly, is not playing fairly,” he said. “And so you've got to get it from the source.”

Such a system would require significant procedural and operational changes, FRA officials said, and there is no guarantee all employees would abide by them.

But agency officials said they can entertain these and other big changes during the upcoming public comment period for their proposed rules, which have not been updated since 2010. During this period, railroad companies and labor groups are expected to provide their perspectives and could mount legal efforts to change the proposals. According to the agency, any new rules will receive final approval from its chief safety officer.

Research was contributed by Jeff Kao, Mollie Simon, Mariam Elba, and Ruth Baron of ProPublica, and Carolyn Edds and Miriam Pensack.

by Jake Pearson, illustrations by Dominic Bodden, special to ProPublica

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Across New York City, hundreds of vulnerable people have been entrusted to New York Guardianship Services, one of roughly a dozen companies the courts rely on to care for “the unbefriended,” those without family or friends to help them.

The state’s guardianship law is supposed to prevent these guardians from abusing, neglecting and defrauding those under their care. But, as ProPublica reported last week, the measure is failing to safeguard those who need protection the most.

Our reporting told the story of Judith Zbiegniewicz, who suffers from depression and anxiety and spent a decade under the care of NYGS. The company placed her in a dilapidated Queens apartment where she lived among rats and bedbugs, sometimes with no heat or electricity. She complained to the company regularly but said it did little to fix the problems. Instead, NYGS repeatedly told court-appointed examiners that her housing was adequate — a claim these authorities never challenged.

ProPublica has now identified more than a dozen cases like Zbiegniewicz’s in which NYGS — and the court officials charged with oversight of the cases — failed to meet the needs of those entrusted to its care.

The stories provide a stark portrait of New York’s overtaxed guardianship system, which experts say is straining to care for more than 28,600 people statewide — 60% of whom live in New York City. Across the five boroughs, there are only 157 examiners to monitor how guardians care for wards. And just over a dozen judges review their work. Such thin ranks can render oversight almost meaningless, with annual assessments often taking years to complete.

NYGS executives Sam and David Blau declined to be interviewed for this story and didn’t answer written questions about the cases identified by ProPublica or the company’s broader business practices. Sam Blau, the company’s chief financial officer, said in a statement that as a fiduciary he was barred from answering questions “about any specific client.” However, he noted, “we are accountable to the Court and our annual accounts and reports are scrutinized by Court appointed examiners and any issues would be addressed.”

In his statement, Blau called ProPublica’s reporting “misguided, without full and proper context, filled with omissions and less than accurate information.” But when asked to specify his concerns, he did not respond.

These stories of NYGS’s wards represent the range of harms that can befall New Yorkers whose needs are great and bank accounts are small.

Renea Richardson

Renea Richardson became a ward of NYGS in March 2018, two years after suffering two strokes and undergoing surgery to relieve swelling in her brain. The health crisis left the former Port Authority of New York and New Jersey worker with brain damage and trouble walking.

But her time in rehabilitation facilities didn’t help her recover, and her goddaughter, Erin Samples, said NYGS wasn’t responding to her many calls. So by the fall of 2021, Samples took her concerns directly to the judge overseeing the guardianship. She was particularly concerned about the conditions in the Brooklyn nursing home where NYGS had placed Richardson.

Richardson was “not receiving regular diaper changing, not being properly dressed when I have visited her and not receiving physical therapy services,” Samples wrote. “Simply put, many people including Ms. Richardson’s guardian has dropped the ball when it comes to her care.”

The judge discharged NYGS four months later, replacing it with Integral Guardianship Services — a nonprofit guardian firm where Blau had also worked. Richardson and her family, however, were unaware that the group had its own problems. During Blau’s tenure, the state attorney general had investigated Integral, ultimately accusing it in 2015 of improperly loaning its executives hundreds of thousands of dollars while wards sat unnecessarily in nursing homes. Blau was not named in the probe, and Integral executives repaid the loans and pledged widespread reforms.

But Samples said the group was just as unresponsive as NYGS when she complained about Richardson’s care, according to emails she provided to ProPublica.

Samples now plans to become Richardson’s guardian herself.

“I never thought I’d be like this,” Richardson said in an interview last summer from her hospital bed in the Bedford Stuyvesant nursing home. Asked what she does all day, she said: “I lay in this bed and get fat and watch TV.”

Integral shut down last spring, and the courts reassigned its wards to other guardians. In a statement, John Ousley, Integral’s former CEO, acknowledged the delays in Richardson’s case, saying that more than half of the firm’s cases were pro bono and that due to limited resources and crushing needs, his staff had to “prioritize the most urgent requests in a given moment.” While he recognized Richardson and Samples’ frustrations, he said, he hoped they understood that “we were doing the best we could under very difficult circumstances.”

Sigifredo Morante

Another NYGS ward, Sigifredo Morante, appears to have slipped through the cracks entirely.

The former accountant and his wife, whose memories were fading, were appointed a guardian in the spring of 2017. The couple was living in a Queens nursing home, though they wanted to return to their native Colombia, where they had family and property. As it turned out, they had given a nephew, Francisco Arango, power of attorney, and he’d petitioned the court to send them back to their home country that fall. A Queens judge allowed the dual citizens to return under Arango’s care.

In an October 2017 hearing, the judge ordered NYGS to relinquish the guardianship altogether after the couple relocated and to reimburse Arango for fees associated with the move, which was completed before the end of that year. That never happened.

For reasons that are unclear, NYGS instead stayed on as Morante’s guardian — at least on paper — and took $450 in compensation from his Social Security check each month. In annual reports, the guardianship disclosed that Morante had moved to Colombia but provided no explanation for its fees. Reviews of those reports, court records show, were delayed in part because of NYGS’ own delinquency in responding to the examiner. Pandemic-era courthouse closures further prolonged his examination. By the time the examiner had enough information to flag the apparent no-show guardianship, Morante had been dead for more than two years.

Arango had no idea the company had continued to take compensation even after Morante died in March 2021, just shy of his 83rd birthday. He has since hired an attorney in Colombia, but it’s unclear whether Arango will be able to claw back the thousands of dollars NYGS took while Morante lived — and died — overseas.

After Arango’s lawyer notified NYGS of Morante’s death last summer, David Blau, the chief operating officer of NYGS, told him that the company could “conclude this matter I think fairly simple” once Arango provided a death certificate, an email shows. Arango has since done so, but Blau hasn’t responded to his lawyer’s subsequent inquiries, according to emails Arango’s lawyer provided to ProPublica.

Arango said law enforcement should investigate how NYGS was able to maintain the guardianship and take a cut of Morante’s government benefits, even as Arango spent thousands of his own dollars caring for him. “In my opinion they did what they could to take money” from vulnerable elderly people, he said of NYGS.

Even in cases where the company did know about dire conditions, it was slow to act, former employees said.

That was the case for William Bell, who was in his mid-80s and being looked after by his stepdaughter when the city sought a guardianship for him in 2017 to help stop an eviction from his apartment. Widowed and fiercely independent, he refused for years to move into a nursing home, even as his health deteriorated and his needs exceeded what his stepdaughter could provide.

In February 2019, a Brooklyn judge granted NYGS’s motion to permanently move Bell into a rehabilitation center, where he was eventually diagnosed with dementia.

Last June, Bell, then 90, was rushed to NewYork-Presbyterian Brooklyn Methodist Hospital, where hospital records show he presented with “agonal breathing” — gasps or moans that a person near death utters. Doctors told the guardianship that they could not save him and advised ending life support, according to a person familiar with Bell’s case who spoke on condition of anonymity to discuss his medical records.

But it took NYGS nearly a month to request a formal ethics assessment from the hospital to facilitate that process, that person said. The report, completed just after the July Fourth holiday, unambiguously argued that Bell’s care should be withdrawn since he’d lost “mental status” and couldn’t be weaned from a ventilator. “The prognosis is extremely grave without any hope of recovery,” it read.

Bell died the following day, on July 7, before any action could be taken.

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by Craig Silverman and Peter Elkind

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Only a few hours elapsed between the time that Carl’s pay landed in his checking account and when online thieves pilfered it. “They took all of it but like 67 cents,” he said. Months before, Carl had signed up for One Finance, a banking app. It’s owned and promoted by Walmart, where Carl works in a grocery department.

He was enticed by features like cash back on purchases at Walmart and the chance to receive his pay two days early, as well as by low fees and high interest rates. Everything was fine until Carl used his One debit card — for the very first time — to buy a video game at Walmart last fall. The next time he checked the app, he saw a series of unauthorized transactions that had drained his account. To get by, he tapped his savings, which he said was “just enough to cover everything.” Carl asked to be identified by first name only out of concern for his job security.

Carl’s experience has been distressingly common. One Finance was plagued by fraud and customer dissatisfaction after a Walmart-controlled partnership acquired it in 2022. As Walmart began touting One to employees and others, the “neobank” — as such ultraconvenient, lightly regulated apps are called — weakened user security and outsourced customer support. Con artists took advantage, spurring a litany of customer complaints to regulators and the Better Business Bureau and across social media platforms. One froze some accounts and blocked access to its app and website from several countries, according to current and former customers and employees.

Frustrated users tanked One’s rating on Google Play from 4.6 to 2.8 stars. So many complaints inundated a Reddit community for One users that moderators made the page private “due to ONE fraud issue and their lack of customer support.” One’s Better Business Bureau page warns that scammers are using the One name and logo to steal money via “loan and impersonation scams.”

One’s problems echo the fraud and compliance issues revealed in a recent ProPublica investigation of Walmart’s financial services business. That article found that the company resisted calls to rein in fraud and skimped on employee training as more than $1 billion in consumer fraud losses were routed through Walmart’s financial systems over the past decade.

One had a higher rate of complaints lodged against it at the federal Consumer Financial Protection Bureau in 2023, its first full year under Walmart control, than most other large neobanks for which data is publicly available. The CFPB received 89 complaints about One, which has 1.6 million customers, according to a recent internal company presentation. That was six more complaints than Dave, a neobank with 9.9 million customers. One also has more complaints per customer than both Current and MoneyLion, two large neobanks. Chime, the largest neobank in the U.S., has by far the highest rate of complaints. (These comparisons are imperfect because neobanks don’t always use the same definitions of “customer.”)

To Carla Sanchez-Adams, a senior attorney with the National Consumer Law Center, the rate of complaints about One shows that “they don’t have the proper amount of resources dedicated to resolving customer disputes and complaints.”

The CFPB received 13 complaints about One in December, almost double the neobank’s monthly average for 2023. Five drivers for Spark, Walmart’s delivery service, have complained in the past two months that hackers stole their personal information, set up fake One accounts in their names, and then diverted their paychecks into those accounts. One was “telling me that they were going to escalate this issue, and weeks would go by and I’d never hear anything from them,” said one driver who requested anonymity to protect his job. Walmart eventually reimbursed his lost pay, he said.

There are signs that the peak of the One-related fraud may have passed. The Reddit page was made public again at the end of January, and the app’s Google Play rating has rebounded to 4.6 stars.

In a statement to ProPublica, One acknowledged blocking access in unspecified countries, due to “significant occurrences or patterns of fraud or cybersecurity risk.” But the neobank denied that problems with fraud, customer support or customer accounts were ever unusually frequent or have increased since the acquisition. When customer growth is factored in, One said, the rate of complaints has fallen “significantly.” The company declined to provide comparative data.

The company said it has taken “an industry-leading approach to protecting its customers and platform from bad actors” and added that it has enhanced its customer support, fraud and security operations. “We take our customers' feedback seriously and take pride in the investments we have made in our product and the ways in which we serve our customer base, which has grown substantially since we acquired the platform less than two years ago,” a One spokesperson said.

For its part, Walmart said in a statement that it works hard to protect customers and that it has “long been committed to bringing much-needed access and affordability to unbanked and underbanked consumers who have been locked out of traditional financial services, and our partnership with One to help develop and offer modern, innovative, and affordable financial solutions is no different.”

One’s issues threaten to undermine Walmart’s biggest opportunity to enter consumer banking. Starting in 1999, Walmart made four bids to go into the banking business. All failed in the face of what a 2007 New York Times article called a “firestorm of criticism from lawmakers, banking industry officials and watchdog groups.”

Many feared that Walmart would use its power as the biggest retailer on the planet to become a financial behemoth that would wipe out small banks and suck up the profits of the big ones. In the face of stiff opposition, the company seemed to give up. The Times article quoted Walmart’s president for financial services saying, “We don’t plan to do this again. The bank is behind us. We will use our partners to roll out new products.”

Since then, Walmart has steadily expanded its financial services. The company now provides check cashing, money transfers, prepaid debit cards, gift cards and bill payment services in thousands of U.S. stores, typically at lower prices than those offered by competitors. Walmart managed to do that without becoming a government-approved bank, thus allowing it to avoid most regulatory oversight.

The rise of online-only neobanks provided a new opportunity: Essentially any company could offer checking and savings accounts, as long as it partnered with a traditional regulated bank, which would handle the underlying functions of holding deposits and insuring money. One launched as an independent operation in 2020 and sold itself with a brash anti-bank message. It created stickers with the slogan “Un*uck Your Money” and said it wouldn’t use customer deposits to invest in fossil fuel, tobacco or firearms companies.

In January 2022, Walmart announced that a partnership it majority owned was acquiring One and another company, Even, and merging them under the One brand. When the deal closed on March 31 of that year, Walmart valued the merged business at $3.67 billion, according to internal documents obtained by ProPublica.

Under Walmart, One expanded beyond its previous target market of middle-class users to focus on signing up Walmart’s 1.6 million employees and getting them to deposit their paychecks into One accounts. The goal was to keep associates’ pay in the Walmart ecosystem and induce them to spend it with the retailer, according to former One managers. “The idea that ‘Hey, how crazy is it that they’re going to be spending the money we give them with us? How perfect of a situation is that?’” a former senior manager said. A former One exec said she came to think of their company as “no longer One, but instead the Bank of Walmart.”

Walmart doesn’t require associates to use One. But the service has been overhauled to emphasize features that benefit Walmart employees and shoppers, such as free ATM withdrawals and cash back on purchases at Walmart stores. Walmart also incentivized the hundreds of thousands of contract drivers on its Spark platform, the company’s answer to delivery apps like Instacart, to use the app. Drivers get paid the same day if they use One as their deposit option, weekly if they don’t.

Soon after the acquisition, One eliminated some popular features, such as customer credit lines with low interest rates. It eliminated account overdraft coverage for some customers and reduced it to $200 for others. It also restricted the functionality of account “pockets,” a signature feature for budgeting, sharing and spending money. In a conversation with moderators of the One Reddit community, company reps said the restrictions were necessary to fight fraud.

But the company simultaneously made it easier for scammers to log in to and compromise accounts of Walmart employees and other customers. Previously, One users needed a username and password and a verification code sent by text message. After the acquisition, One removed the username and password requirement for mobile users. Instead, customers entered their phone number and received a login code via text. Nowadays, fewer companies require a password. They typically rely on a username, such as an email address, and a second form of authentication. But One uses the same telephone number both for the username and to deliver the login code, which makes it less secure, said Allison Nixon, the chief research officer of Unit 221B, a security research and consulting firm.

One also asks users to set up a PIN. But if you forget your PIN, you can reset it with the last four digits of your Social Security number, which Nixon said is easy for criminals to obtain. “It doesn't feel safe and it doesn't seem like the way we should protect people's entire bank accounts,” said Nixon, who tested One’s login flow at ProPublica’s request. “When the criminal underground realizes that there's a weakness, a lot of different parties jump on that.”

In its statement to ProPublica, One said that its accounts “require two-factor authentication.” Nixon disagreed. "Possession of a phone number plus a PIN that isn't really required because you can just reset it is one-factor authentication," she said.

Without a password barrier, fraudsters were able to impersonate company representatives in calls and messages to gain access to customer accounts, according to interviews and online reports. Natasha Tabachnikoff, a One account holder who works in local government in Pennsylvania, said she received two calls from someone falsely claiming to work for One. The caller said her account, which she’d had for years, had unauthorized charges and asked her to confirm her identity by sharing the authentication code sent to her phone.

Tabachnikoff almost shared the code but instead hung up and contacted One. “I told them, ‘You have a very insecure system here.’ And they were basically like, ‘Well, we'll never call you and ask you to give us your code,’” said Tabachnikoff. She said she moved her savings out of One “to a more reputable bank.”

As fraud mounted, One took steps that weakened the human side of its defenses. Last May, it laid off nearly all of its U.S. customer support agents and replaced them with outsourced workers in India and El Salvador. Although many of the new workers weren’t fully trained, they were assigned to provide frontline support via chat and phone.

“They were trained to only handle the lowest intake questions that do not require advanced knowledge or support,” said a former One employee with knowledge of support operations. Every One user interviewed by ProPublica who had contacted customer service after being defrauded said that the outsourced agents could answer only basic questions. “These folks were really gatekeepers, they weren’t there to resolve your problem,” said James Scherber, an Oregon-based entrepreneur who had convinced several members of his family to join One.

Separately, One hired outsourced agents to assist with reviewing reports of fraud. This delayed the resolution of problems and has caused One to reject valid reports of fraud, according to the former employee and to transcripts of customer support chats provided by One users. One did not comment specifically on these criticisms, but it said it has “substantially grown its investment” and personnel in both customer support and fraud review.

Jae Bleiberg contends that One brushed off legitimate claims of fraud. Bleiberg, who has run customer service and operations for other neobanks for eight years, used One as their primary bank since 2021. (Bleiberg uses they/them pronouns.) Early in 2023, Bleiberg was unable to use their One debit card in Brazil, forcing them to cut their vacation short. A One support rep told Bleiberg that “all transactions in and out of Brazil were blocked due to ‘security concerns,’” Bleiberg said. When Bleiberg returned to New York, the card remained inactive and wasn’t replaced for another month. “Their response was ‘You can go to Walmart and get cash with your virtual One card,’ Bleiberg said. But, they added, “there are no Walmarts in New York City.”

Worse, multiple fraudulent transactions had been made using Bleiberg’s account. One reimbursed Bleiberg for those transactions, but rejected a subsequent claim. After weeks of back and forth, One eventually issued a $250 credit after Bleiberg threatened to complain to the CFPB and other agencies. Beliberg provided a screenshot of their bank statement showing the credit. “This clearly came with the understanding I would not seek regulatory action,” Bleiberg said. One said it’s “categorically false” to say that it pays customers to not file complaints. As their dispute with One escalated, Bleiberg filed complaints last month with several federal agencies. When Bleiberg asked for copies of their chat-support transcripts and call logs, screenshots show, One said it would provide the materials only if served with a subpoena. “I have spent the last year trying to obtain the records” of their interactions with One, Bleiberg wrote to the Federal Reserve Board. “My account was closed without consent a few days ago by a spiteful support agent.”

Scherber, the customer from Oregon who got his family to join One, said the company’s ineffective fraud response cost him thousands of dollars last fall. The company froze all of his money and stonewalled him after he reported a series of unauthorized charges. “They have a firehose of fraud and you have to wait for a response back from the relevant team,” Scherber said.

The account lockup meant his scheduled payments to American Express didn’t go through, he said. That lowered Scherber’s credit rating, causing a lender to raise the interest rate on a planned mortgage refinancing. “I had to postpone my refinancing,” he said. “Now it’s not going to happen.” Scherber and his family ditched One last year.

One said the rate at which it freezes or otherwise restricts customer accounts due to fraud “is down by more than 50% since the acquisition of One.” It declined to share the data or time frame used to calculate that statistic or to address specific customer accounts of fraud or poor service.

Carl, the Walmart employee whose paycheck was stolen by fraudsters, eventually got his money back. But he’s done with One. Now he gets his Walmart pay deposited in a traditional bank. As he put it, “After losing the whole check I wasn't going to risk losing it again.”

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Doris Burke contributed research.

by McKenzie Funk

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A closed-circuit video camera zoomed in on the tarmac of Seattle's Boeing Field one recent afternoon, buffeted by 30-mile-an-hour gusts as it captured the arrival of a charter jet. The jet rolled to a stop alongside two buses. Behind their tinted windows, still invisible to the camera, were people waiting to be deported from the United States.

"Windy," muttered a woman watching the video feed on a projector screen. Struggling to make out the plane’s tail number from the shaky image, she stood up for a closer look.

On the screen, a stairway was wheeled over, and a cluster of men in bright yellow jackets descended from the plane. Another man stepped out of an SUV that partly blocked the foot of the stairs from view. Soon the group lugged over black bags, opened them, and laid out something that looked like chains.

When detainees began emerging from the camera’s blind spot, their ankles, waists and wrists appeared to be shackled together, and they seemed unable to hold the handrails as they shuffled up the wet stairs in the wind.

"So dangerous," said another woman watching the video feed. People kept coming, and she and her partner kept count: "Seven ... eight ... nine ... ten ... eleven ... twelve." One by one, the hunched figures disappeared into the plane. After an hour, it was gone.

People board a deportation flight at King County International Airport. The original video image has been zoomed in on for greater clarity. (Obtained by ProPublica)

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The observation room at Boeing Field offers what is arguably America’s best real-time window into our vast network of privately run deportation flights, a system that has generated troubling reports of passenger mistreatment and in-flight emergencies.

In 2017, passengers on a deportation flight to Somalia said they were left bound and shackled in their seats for 23 hours during a stopover, some forced to soil themselves because they were denied bathroom visits. A year later, the right landing gear collapsed as a plane carrying detainees touched down at an airport in Louisiana, sparking a fire on its wing, filling the cabin with the smell of burning rubber and sending shackled passengers racing toward the three functioning evacuation slides after another slide failed to deploy. The next year, a detainee at the same Louisiana airport tumbled from the top of the boarding stairs and was rushed to the hospital.

While news organizations have reported on some of these incidents aboard what the government calls ICE Air, key details about how the system works would still be hidden were it not for a group of researchers who are now part of the work inside the observation room.

The University of Washington Center for Human Rights has spent the past six years trying to shed light on deportation operations, even as U.S. Immigration and Customs Enforcement and its contractors and subcontractors have taken steps that shield their activities from view. (ICE declined ProPublica’s requests for comment.) Now the human rights center is in close contact with the observers at Boeing Field, hoping their weekly vigil will yield new clues and drive further research.

Every scrap of information is hard won.

As the recent dramatic influx of immigrants has prompted a push among political leaders to accelerate expulsions, what Seattle's single shaky tarmac camera really shows is how little the public is allowed to know about the nation’s hidden deportation infrastructure.

The Washington human rights center’s investigation of ICE Air began in 2018 with a modest goal: to prove that deportation operations took place at King County International Airport, as Boeing Field is officially known. Liberal local officials had enacted various “sanctuary” policies to insulate their residents from then-President Donald Trump’s crackdown on immigrants, but they were unaware (or could at least claim to be unaware) of ICE flights at the county-owned airport. “They all played dumb,” said Maru Mora Villalpando of the immigrant rights group La Resistencia. “All of them were like, ‘Wait, what, there are deportations happening here?’”

The center began gathering documents that proved it, and also hinted at the worldwide breadth of ICE Air's network. Their investigation grew. Through records requests to ICE, and after interventions by Washington's congressional delegation, researchers obtained an ICE Air database spanning eight years of global operations: 1.73 million passenger records from nearly 15,000 flights to and from 88 U.S. airports — Boeing Field indeed among them — and to 134 international airports in 119 countries around the world.

In April 2019, the center published this trove of raw data and a pair of reports cataloging a history of in-flight abuses and potential due process violations.

The Washington human rights center reports also mapped the layers of contractors and subcontractors that provide ICE with planes, security guards, in-flight nurses and access to local airports. “Over the past decade, the institutional infrastructure behind these flights has shifted from a government operation run by the US Marshals Service on government planes,” the researchers wrote, “to a sprawling, semi-secret network of flights on privately-owned aircraft.” Their reports identified the charter companies by name.

A great majority of the deportation flights leaving Boeing Field were bound not for destinations overseas but for domestic ICE Air hubs closer to America’s southern border, over 1,000 miles away, where detainees could be placed on connecting flights to countries of origin. The Washington researchers showed that Boeing Field was a busy part of the network, having hosted close to 500 ICE Air flights since 2010, collecting landing fees as the government shipped off at least 34,400 people for deportation.

Confronted with these findings, King County Executive Dow Constantine issued an order designed to eventually make it impossible for ICE Air to get any ground support, such as refueling, at Boeing Field. The company providing these ground services to ICE, which had also been named in the center’s reports, decided to stop rather than wait until its contract came up for renewal. The flights suddenly ended. (The company, Clay Lacy Aviation, and its successor in Seattle, Modern Aviation, did not respond to requests for comment.)

A game of cat and mouse had begun, pitting the Trump administration — and later the Biden administration — against local sanctuary advocates.

First, ICE switched locations. It began charter operations out of a municipal airport in the small city of Yakima, located in the farming region about three hours east of Seattle.

But activists began showing up at the Yakima airfield, recording tail numbers and keeping count of people being deported.

Second, ICE changed its flight numbering system. The human rights center had disclosed in its 2019 report that it used the federally assigned prefix “RPN-” for “repatriate” to plug information into free flight-tracking websites and obtain a plane’s tail number and ownership. So ICE dropped the “RPN-” and adopted the call signs of its various charter companies.

Activists became more sophisticated. Thomas Cartwright, a retired financial executive in Ohio turned refugee advocate, figured out how to identify ICE Air missions by analyzing flight patterns, operators and airport pairs. He began to track charter planes by the dozens, enabling the human rights center to issue a 2022 report linking specific deportation flights to the sports teams and musical acts that chartered the same planes.

“I'm retired, and I really do need to retire," Cartwright said. "I don't know who's going to do it after me.”

Meanwhile, the U.S. Department of Justice proceeded with a lawsuit against Constantine, the King County executive, to restart ICE flights at Boeing Field. Announcing the suit in February 2020, then-Attorney General William Barr had called it “a significant escalation in the federal government’s efforts to confront the resistance of 'sanctuary cities.'"

A judge ruled against the county in March 2023, and ICE made preparations to return.

Signature Aviation, a ground-support company at Boeing Field with an $11.5 million new terminal building for its executive clients, agreed to service ICE Air out on a hard-to-see part of the tarmac. Two charter companies, iAero Airways and GlobalX, would do the flying. (None of the companies responded to ProPublica’s requests for comment.)

La Resistencia, the local immigrant rights group, responded by pressuring King County officials to set up a viewing area. The county hastily opened a conference room and closed-circuit video feed for observers.

Students from the University of Washington protest Signature Aviation at King County International Airport. Signature services ICE deportation flights at the airfield. (Jovelle Tamayo, special to ProPublica)

On May 2, according to a spreadsheet kept by the observers, a white Boeing 737 with the tail number N802TJ arrived from Phoenix. The plane was known as the Straight Talk Express when used on Sen. John McCain's 2008 presidential campaign, photos and news reports from the time show. On this day iAero was using it for a deportation flight. ICE Air was back.

Volunteers now observe deportation flights every week at Boeing Field, usually on Tuesday mornings.

Coordinating their efforts along with La Resistencia’s Maru Mora Villalpando is Stan Shikuma, a 70-year-old retired nurse and the co-president of the civil liberties group Tsuru for Solidarity.

“Tsuru” means “crane” in Japanese. The group consists of Japanese American survivors of U.S. incarceration camps during World War II and their descendants. They first organized to protest what they saw as similar mass camps for immigrant families during the Trump administration. One, in Dilley, Texas, was just 45 minutes down the road from Crystal City, Texas, the site of an infamous camp that housed Japanese American families. In 2019, the group that would become Tsuru led a large rally outside the Dilley detention center, giving speeches and playing taiko drums and stringing tens of thousands of origami paper cranes along the fence. The cranes became their symbol. They rallied under the cry “Stop Repeating History!”

At Boeing Field, the volunteers record tail numbers and keep a count of how many people get on and off each plane. The observations can serve as “a check on ICE in case they do put out numbers,” Shikuma says. “If they say, ‘We’ve only deported 25 people in the last two months,’ we can say, ‘Well, we counted 85 in the last two weeks.’”

First image: Maru Mora Villalpando, leader of La Resistencia, views a deportation flight on a live feed. Second image: Stan Shikuma, left, and Margaret Sekijima observe a departure, recording the number of people they see board the plane. (Jovelle Tamayo, special to ProPublica)

The second goal, Shikuma says, is to "let the people on the plane know that we're out here and that someone cares." In this effort, the groups, hidden away as they are in the observation room, have been less successful.

When Shikuma is on duty, he sits with one or two other observers in the conference room and stares intently at the closed-circuit video screen on the wall. He sips coffee and checks FlightAware, a popular plane tracking app, on his phone. He watches the buses roll in from the 1,575-bed Northwest ICE Processing Center in nearby Tacoma, run by private-prison contractor The Geo Group.

After the ICE Air flight arrives, usually from Phoenix but sometimes Las Vegas, San Antonio or El Paso, Shikuma marks in his notebook the time, the plane’s tail number, how many detainees exit and how many board.

Planes meet buses behind a large hangar, almost entirely out of view from a perimeter road. There are often three buses, but only two of them, Shikuma said, ever unload passengers. The third parks along a fence line, blocking any remaining view from the road. While the county's closed-circuit camera can still capture the boarding process, the positioning of the SUV and two passenger buses means that detainees are generally visible on the camera only for the seconds it takes them to ascend the stairs.

Twice in recent months volunteers witnessed what they considered unusual activity during boardings on the tarmac, prompting the human rights center to request records of internal ICE documentation on those two flights under the Freedom of Information Act.

Activists say that King County, despite its left-leaning reputation, has been a more reluctant partner in keeping tabs on deportation flights than was Yakima, which had regularly shared passenger tallies.

But Cameron Satterfield, a county spokesperson, said officials are doing what they can within a limited set of options. “We have a federal judge saying, ‘No, this is a public airport,’” he told ProPublica.

The county logs ICE Air’s arrivals and departures on its website, though the page was missing for weeks this winter after an update. Local officials have been unable to obtain passenger data from ICE, not even a head count. “They have told us: You can send a FOIA request,” Satterfield said.

This means that the only practical way to get numbers is the volunteers’ flight-by-flight paper tally. In 2022, ICE's average processing time for what it deems "complex" requests hit a record high: 186 days. At the end of that year, it had a backlog of 16,902 unresolved cases, a fourfold jump from 2021.

ProPublica’s review of deportation videos posted online by ICE shows what a difference the unvarnished view from Boeing Field can make. The agency began routinely posting the productions in May.

The 97 videos ProPublica examined, ranging in length from 22 seconds to almost 3 minutes, show signs of careful framing and editing. While detainees are commonly shown climbing the steps in handcuffs and the waist chains that secure them, the videos often cut to a new shot before leg shackles can make an appearance. When leg shackles are visible, they are typically out of focus, discernible only if you know to look for them.

It is common on ICE Air to place passengers in five-point restraints — wrists, ankles, and waists in chains — even as the agency’s own statistics show that less than half of the people deported in 2023 had any kind of criminal conviction, let alone for serious felonies that could suggest a possible risk to others on board.

Carrier names and tail numbers are blurred or absent in the videos, consistent with tail-number redactions in documents the Washington human rights center has gradually received from ICE in the years after its 2019 reports. The agency cites an exemption to the Freedom of Information Act protecting records that would reveal "techniques and procedures for law enforcement investigations or prosecutions" or "could reasonably be expected to risk circumvention of the law."

In this outtake from a June 2023 video released by ICE of a deportation flight from Alexandria, Louisiana, to Guatemala, people are filmed out of focus, making it difficult to see any leg shackles. (U.S. Immigration and Customs Enforcement)

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The agency did not respond when asked by ProPublica how disclosing tail numbers could pose such risks, nor when asked to explain the use of five-point restraints. When the California news organization Capital & Main wrote in 2021 about ICE flights that went badly, it quoted a spokesperson saying the agency required safety reports from flight brokers and that “ICE retains the ability to hold the vendor accountable if there are performance issues.”

The spokesperson also told Capital & Main that the agency “utilizes restraints only when necessary for the safety and security of the detainee passengers, flight crew, and the aircraft.”

What ICE’s online videos don't show is revealing in its own right. In spring 2023, the center obtained a series of ICE Air incident reports detailing various accidents during charter operations, including the one in which a detainee in Alexandria, Louisiana, tumbled down the boarding stairs. Agency investigators recommended that contractors and subcontractors avoid such accidents in the future by placing a guard midway up the stairs to help detainees board and to catch any who lose their balance.

Yet in most of the ICE Air videos, including 32 of the 33 shot over the last year at the Louisiana airport where the man fell, ICE's contractors did not heed the investigators’ suggestion.

At Boeing Field, observers have documented the same practices. Week after week, rain or shine, including the recent gusty day when the tarmac camera shook in 30-mile-an-hour winds, chained detainees continue to climb aboard the planes alone.

On a calmer day this winter, Shikuma shared the observation room with Mora Villalpando and with fellow Tsuru volunteer Margaret Sekijima. FlightAware showed an inbound Airbus A320 operated by the ICE Air subcontractor GlobalX. Buses from the detention center, which normally arrive well in advance, had yet to appear on the screen. “Very unusual,” Shikuma said. “I wonder if they've changed up the protocol."

A few weeks prior, Mora Villalpando had led a group of protestors who intercepted the buses outside the gates of the airport, waving at the detainees inside and unfurling a banner that read "You are not alone" in three languages spoken by recent groups of Northwest detainees: English, Spanish and Punjabi.

Minutes later, two buses traversed the video frame from left to right. A young woman burst into the room. “They changed the entrance and came from the north!” she said. She was a student from the University of Washington, there to lead a demonstration in front of Signature Aviation’s gleaming terminal building. “I’m going to go round up the troops.”

The Airbus landed. The observers took down its tail number. They counted 29 detainees getting on, zero getting off.

Shikuma and Mora Villalpando went outside to join the protesters. Sekijima stayed in the conference room, her expression tight, her eyes on the screen until the plane left for El Paso, its next destination in ICE Air’s endless loop of deportation flights.

Help ProPublica Reporters Investigate the Immigration System

by Jake Pearson, illustrations by Dominic Bodden, special to ProPublica

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The temperature was plummeting on Thanksgiving eve when Judith Zbiegniewicz wrapped herself in a blanket, picked up her phone and tapped out yet another plea for help to New York Guardianship Services. It was 2018, and for the previous five years the company, whose slogan is “caring that makes a difference,” had overseen nearly every major decision in her life, as it did for hundreds of New Yorkers deemed incapable by the courts of looking after themselves.

The organization had repeatedly maintained in court filings that Zbiegniewicz, who was 65 and suffered from depression and anxiety, was doing well under its supervision and that the Queens apartment it had placed her in was the “best and only place for her.” Each year, court examiners reviewed the reports and a judge signed off on their assessments.

In truth, though, Zbiegniewicz lived in squalor on the second floor of a dilapidated home whose roof had partially collapsed. She’d complained when her mattress teemed with bedbugs and when rats gnawed the legs of her kitchen chairs. Yet every month, her legally appointed guardian had taken $450 in compensation from her bank account as her living conditions deteriorated.

Now, with no heat and a cold front barreling down on the city, she stuffed bath towels under a door to block the draft and again appealed to NYGS.

“While you and every one at the guardianship are home in a warm house and having Thanksgiving dinner think of me. In a apartment without heat and can’t,cook. And rats in the kitchen,” she wrote on the evening of Nov. 21, 2018. “So much for where caring makes a difference.”

Three decades ago, New York was at the vanguard of a national movement to prevent such exploitation. State lawmakers passed progressive legislation to codify wards’ civil rights and maximize their independence. Under the law, guardianships were supposed to be tailored to the needs of the individual, with regular court examination to safeguard their welfare.

But today, the system is in shambles, leaving thousands of vulnerable New Yorkers sequestered, voiceless and forgotten while the officials who oversee their care struggle to ensure it, according to a ProPublica investigation. In New York City, there are just over a dozen judges to handle the 17,411 people in guardianships, data provided by the courts show. With that load, cases can sit for years without any kind of meaningful oversight. The hardest hit are poor New Yorkers like Zbiegniewicz, whom the state has entrusted to a network of loosely regulated nonprofits. The outcomes for some of these individuals — known in industry parlance as the “unbefriended,” because they have no family or anyone else to help them — have been dire.

In one case, a guardian didn’t notice his ward had died and continued to collect payments for the man’s care even after his death. In another, a guardian told the court in a report that they didn’t know where their ward was for a year. Case managers had visited her apartment but never went in. Eventually a utility worker discovered the woman’s corpse, covered in maggots, decomposing in her own bed.

That the 1990s reforms have failed has been an open secret for years among advocates, lawyers and judges, who have repeatedly called for an overhaul. But the state lawmakers and judicial leaders who have the power to improve it have not done so — even as cases like that of Britney Spears have brought national attention to the issue of guardianships.

ProPublica reviewed hundreds of pages of court records, interviewed dozens of lawyers and experts and talked to the wards who are least equipped to advocate for themselves. What we found is that some of the remedies that policymakers introduced 30 years ago to bolster care and curb abuse, like minimum qualifications for guardians and court examination of their reports, are in dire need of an upgrade.

Today, for example, it is far easier in New York to become a guardian than a nail technician. Parties need only complete a day-long course — far less training than is required in some other states, including California, Texas and Florida. And oversight of their work is similarly threadbare, consisting primarily of a court-appointed examiner who focuses almost exclusively on financial paperwork and a judge who signs off on the examination. But with thin ranks of reviewers, annual assessments can take years to complete. And officials rarely, if ever, see the wards in person.

The easy entry and lack of oversight, critics say, has helped attract unscrupulous nonprofits that take advantage of the wards they are supposed to protect.

In 2015, the chief financial officer of one nonprofit was convicted for stealing more than $50,000 from a ward’s accounts, government documents show. That same year, state regulators found that another nonprofit improperly loaned its top officials more than $250,000 while wards were unnecessarily kept in nursing homes.

Today, even those who helped write the state’s main guardianship statute, known as Article 81 of the Mental Hygiene Law, concede the yawning gap between its promise and its practice has rendered it, in the words of one, “basically pointless.”

“Keeping people out of guardianship in the first place is the single most important thing to do, because once you’re in it, it’s the toilet you get flushed down,” said Kristin Booth Glen, a former judge who helped craft the law and has called for reform for years. New York’s oversight of guardianships has been “a total and utter disaster,” she said.

Few groups illustrate the consequences of that failure better than NYGS, the organization that was supposed to care for Zbiegniewicz. Over the past decade, the company has grown to become one of the largest providers in the business, drawing $450 in monthly compensation each from hundreds of wards’ accounts while providing as few services as possible, according to court documents and six people familiar with the company’s operations, including former employees.

“Everybody is shirking responsibility,” said Carla Billini, the former director of case management for NYGS. She resigned last April after a decade in the job, saying she was fearful that the company’s practices would result in harm to wards. “How is there nobody above the guardian who watches all the guardians?”

A spokesperson for the Office of Court Administration, which runs New York’s court system, said that judges face “extremely challenging circumstances” but do the best they can under the law. “The caseloads are extremely high and individual cases can persist for decades,” he said. “Yet, the courts never give up in searching for solutions to ensure the well-being of some of society’s most underserved populations.”

NYGS executives declined to be interviewed for this story. In a statement, Sam Blau, the company’s chief financial officer, said that as a fiduciary he was barred from answering questions “about any specific client.” However, he noted, “we are accountable to the Court and our annual accounts and reports are scrutinized by Court appointed examiners and any issues would be addressed.” NYGS did not answer written questions about the company’s broader business practices.

In his statement, Blau called ProPublica’s reporting “misguided, without full and proper context, filled with omissions and less than accurate information.” But when asked to specify his concerns, he did not respond.

Zbiegniewicz’s decadelong experience as a NYGS ward serves as a road map to how Article 81 fails New Yorkers who are least able to protect themselves.

“Somebody’s Going to Come Help Me”

Zbiegniewicz’s introduction to guardianship came as it does for thousands of others in the city each year: through a call to the city Adult Protective Services program by someone concerned about her well-being.

It was November 2008, and Zbiegniewicz was struggling financially and emotionally. Her father had died suddenly from a heart attack a year and a half earlier, leaving her the family’s Maspeth, Queens, home — and, to her surprise, a reverse mortgage. The outstanding debt was $266,532.95.

Zbiegniewicz had no job and no way to pay. She had been dependent on her father all of her adult life, the result of an early trauma: At 18, she was raped leaving the subway on her way to work at Queens’ Welbilt Stove plant. Her world became small, as her devastated parents shielded her. She never sought therapy, never returned to work and rarely ventured beyond the comfort of her block.

Now, with the house in foreclosure, someone called the city to check on her. Adult Protective Services soon sent a psychiatric nurse practitioner, who diagnosed Zbiegniewicz with depression, anxiety and a dependent personality disorder. In a court petition, the city noted that she relied on food stamps and public assistance. With bills piling up, she had just $459.88 in her bank account.

So on a January day in 2010, to help Zbiegniewicz stave off eviction, a city lawyer walked into a wood-paneled courtroom in the state Supreme Court building in Queens and asked a judge to declare her an “incapacitated person” in need of a guardian to manage her finances and housing.

Zbiegniewicz, who declined to attend the hearing, initially welcomed the move. “I was in no condition right then and there,” she said. “I was all alone, no direction, no nothing. I thought, ‘OK, somebody’s going to come help me get focused and leave.’”

The judge granted the city’s request, setting in motion Zbiegniewicz’s spiraling journey into New York’s overloaded guardianship system, which now contains 28,619 people statewide, more than 60% of whom live in New York City. In most cases, a judge selects either a so-called lay guardian — family or friends who volunteer — or a professional guardian, usually a lawyer, which can be pricey. For the thousands of New Yorkers like Zbiegniewicz, who have no family and too little money to be worth a professional guardian’s time, a judge will choose from just under a dozen nonprofit groups, depending on the circumstances. In cases where Adult Protective Services is involved, that means one of three publicly-funded organizations.

In Zbiegniewicz’s case, the judge initially appointed the Jewish Association for Services for the Aged. Its mandate was narrow: stopping her eviction.

The guardian negotiated the sale of Zbiegniewicz’s family home, paid off the reverse mortgage and secured $92,000 for her in the deal. Once the money was placed in a special needs trust, JASA’s mission was complete. The judge then turned to the list of professional guardians to help Zbiegniewicz find new housing.

But the task was a challenge. Zbiegniewicz insisted on keeping her five beloved schnauzers and living with four longtime friends who’d supported her after her father’s death. The arrangement made her a tough tenant to place, and by July 2013 she’d faced eviction from two separate apartments where she had withheld rent until repairs were made.

Before long, Zbiegniewicz’s professional guardian wanted out.

Like many private attorneys in the system, she was working the case pro bono, and her petition to be replaced reflected a larger strain in New York’s system, which has long relied on such goodwill to handle guardianships of the indigent.

Private lawyers have “stopped taking cases in droves because they don’t want to spend the time,” Arthur Diamond, the former supervising guardianship judge in Nassau County, told state lawmakers in 2018. “And it can be an immense amount of time being a guardian for somebody who has Alzheimer’s and dementia, which many of our wards do.”

NYGS pitched itself explicitly to the courts as a solution to this problem. A lawyer for the group once wrote to a Queens judge in a letter obtained by ProPublica that the company “hopes to fill a need in the court system” by taking those cases in which a judge would otherwise have “a difficult time finding a suitable guardian willing to act.”

In a July 2013 hearing, Zbiegniewicz’s private guardian suggested NYGS take over her case because “they seem to have a significant amount of resources.”

Supreme Court Justice Lee Mayersohn OKed the switch, making NYGS the third guardian to handle Zbiegniewicz’s case in three and a half years.

Exploding Caseloads, Little Vetting

The guardianship bill state lawmakers passed in the early 1990s established the first training requirements for guardians before they can serve — generally a daylong class meant to ensure they have a baseline familiarity with Article 81’s requirements. That’s less stringent than what the state requires of prospective nail technicians, who must complete a 250-hour course and pass tests. This low barrier to entry can allow a family member who steps up to help a loved one in crisis quickly get in place. But advocates say that New York’s permissiveness also enables exploitative actors to enter the guardianship business.

At the time of NYGS’ founding, Blau was working as the director of judicial compliance at another guardianship firm, according to his LinkedIn profile. The state attorney general’s office investigated that group, Integral Guardianship Services, during Blau’s tenure, and eventually accused it of abandoning its most basic duties, including filing annual reports detailing wards’ finances. (Blau wasn’t named in the probe, which the group settled. The firm shuttered its operations last spring.)

NYGS’ chief operating officer — Blau’s older brother David — had been running an unrelated e-commerce business, selling discounted travel coupons, according to former employees.

Once certified, private guardians are required to attest that they haven’t been found to have violated any criminal, civil or professional rules. Nonprofits, however, undergo no such vetting. In fact, they are not even required to provide proof of their charitable status.

Had there been such a requirement, the courts would have seen that NYGS is not registered as a charity with the state attorney general’s office nor does it have tax-exempt status from the Internal Revenue Service, both agencies confirmed. Nevertheless, the company repeatedly represented itself as a nonprofit in its court filings and promotional material as it took on more and more cases, including Zbiegniewicz’s.

The distinction is significant. Nonprofits are exempt from court rules that cap the number of cases and the amount of compensation guardians can receive annually. Such operations can be lucrative. One estimate commissioned by the state attorney general in 2016 projected that a nonprofit guardian serving 400 low-and-no-fee wards could generate $1.2 million per year.

Sam Blau declined to answer questions about the company’s tax status, but said in a statement that “a large percentage of our cases are done completely Pro Bono,” which “is certainly in line with our mission to help people of minimal financial means.”

In pitching the firm to the court, NYGS’ lawyer painted a picture of an organization with a “cadre of knowledgeable and caring individuals” experienced in guardianships who used “state of the art records management technology.”

In reality, the Blau brothers operated out of a cramped second-floor office on Avenue J in Midwood, Brooklyn, that was strewn with stacks of government forms, old checkbooks and financial statements. For years, employee chats show, the cremated remains of a ward sat in a plastic bag on the shelf of a hallway closet, nestled in a plain white container the size of a shoe box. The “state of the art” technology it used to manage its caseload were actually Dropbox and Google Docs, former employees said.

David Blau

NYGS’s business grew rapidly by taking on dozens of new cases annually — a strategy that former employees said was intended to maximize profit on the $450 per month apiece it earned from most of its wards. But staffing didn’t keep pace with volume, and workers realized that in order to do the job well, the firm needed to take fewer cases and throw significant resources at the ones it already had.

That didn’t happen.

Sam Blau

In 2016, when the company had 167 clients, it employed two full-time case managers, internal records show. That was true the following year when the total caseload jumped to 248 and remained the case the year after that, when NYGS was responsible for nearly 300 wards. Two more employees were hired in 2018 to handle wards’ finances. Several studies, as well as states including Virginia and Colorado, recommend a 20-client limit to ensure proper care. New York, however, has no equivalent guidance, and at one point NYGS had 83 wards per staffer, according to internal records.

More recently, former employees said, the company outsourced key jobs to workers in the Philippines who were expected to address the complicated insurance, banking and health care needs of vulnerable wards from 8,500 miles away. One worker told ProPublica that she was so troubled by the lack of resources and ceaseless calls — she was responsible for dozens of wards every day — that she quit after six months.

For years, unless judges specifically asked, they had no way to know whether nonprofits they assigned actually had the bandwidth to take on new cases. It wasn’t until last fall that the state court system, using a federal grant, created a database so that judges and court staff can “better oversee the flow and nature and structure of guardianship cases,” the courts’ spokesperson said.

Within NYGS, complaints about the conditions, the lack of resources or a ward’s specific problems were usually met with silence, said Billini, the former director of case management. Sam Blau would just “stare into his computer when you’d tell him something he didn’t want to hear,” she said. “We called it the passive-aggressive stare.”

The former case manager, as well as other workers, said this dynamic would play out time and again after NYGS moved Zbiegniewicz into the upstairs apartment of 150-15 Yates Road, a two-family home in a dangerous section of Jamaica, Queens. It was seven miles and a world away from the spacious Maspeth house where she’d lived most of her life.

Blau did not respond to questions about Billini’s account. In a general statement, he disputed ProPublica’s reporting, which he claimed was based on “disgruntled former employees who have a clear biased agenda.”

Bedbugs, Rats — No Questions Asked

Zbiegniewicz suspected something was amiss with her guardian from the start.

Shortly after moving into the Yates Road apartment, she discovered bedbugs. She said she complained to NYGS immediately, but it took three months before the company sent pest control. The disruption caused her therapist to cancel weekly sessions until an exterminator certified the insects were gone, Zbiegniewicz said.

“I was tore up from the floor up,” she recalled of the bites.

In its filings to the court, however, NYGS presented Zbiegniewicz as thriving. In language that would repeat year after year, a company social worker who visited the home wrote that “Ms. Zbiegniewicz is oriented to person, place, and time,” described the frequency of her therapy sessions and the medications she took, adding that she “enjoys gardening and taking care of her dogs and roommates.”

To ensure the integrity of such reports, the system includes a layer of protection for wards in the form of court-appointed examiners. By law, these individuals — typically lawyers or accountants — are tasked with reviewing guardians’ reports to “determine the condition and care” and finances of the ward, as well as “the manner in which the guardian has carried out his or her duties and exercised his or her powers.” In practice, the scrutiny can be far from robust.

Today, there are just 157 examiners responsible for reviewing the reports of 17,411 New York City wards, according to data from the court system. And their training can be minimal. In Brooklyn, Queens and Staten Island, this includes viewing a set of instructional DVDs that were recorded 12 years ago.

Like the cost of the guardianship itself, the price for these examinations is borne by the ward.

Zbiegniewicz paid a few hundred dollars each year for an examiner’s reviews. But her records show these examiners did not interrogate spending that indicated potential housing problems.

In 2014, for example, Zbiegniewicz’s account listed four separate disbursements — totaling $1,251 — for extermination, laundry and cleaning services, all explicitly labeled as bedbug remedies. Yet when the examiner asked whether the housing was “best suited” to Zbiegniewicz’s needs, NYGS said it was “appropriate.” There’s no indication in the file that the examiner at the time, Paul Guttenberg, pressed any further or followed up on the extermination expenses. Guttenberg, who declined to be interviewed and didn’t respond to emailed questions, approved NYGS’ report.

The subsequent examiner of Zbiegniewicz’s case, Janet Brown, was similarly uncritical. Court data show she carried a significant caseload. Zbiegniewicz was just one of 44 new cases Brown picked up in 2015 alone — a pace that would continue throughout the guardianship. Each year, after reconciling the financials, she signed off on NYGS’ reports, including those that showed Zbiegniewicz paying to address more problems a landlord would typically be expected to cover: $180 for electrical work in January 2018, then $30 more for an electric stove that May and $50 for a heater in December.

That year, when Brown asked whether Zbiegniewicz’s apartment was “best suited to her current needs,” an NYGS employee responded, “It is not the ideal placement, but currently it is the best & only placement” for her.

The employee provided no further explanation in the filing, and there is no indication in the court record that Brown asked for one.

Meanwhile, the conditions in the apartment steadily worsened, according to emails, court filings and interviews with four other people who spent time there.

“Now the rats are eating the kitchen chairs,” Zbiegniewicz wrote to NYGS in a March 2019 email. “By the time I leave I will not have anything to take.”

That year, the guardianship reported spending $280 of Zbiegniewicz’s money for “storage containers and pest Control,” as well as “reimbursement for Extermination and Bathroom Repair.”

There is no indication in the court records that Brown even examined these 2019 expenses. While Article 81 requires guardians to file wards’ annual accounts by May of the following year, there is no such deadline for examiners. Zbiegniewicz’s file is still missing reviews for four years of her guardianship.

In an interview, Brown said that her job was to “make sure the dollar amounts balance out” and that funds were not “being misused.” By those standards, there were no disbursements in the annual reports that “raised an eyebrow,” she said. She said she wasn’t aware of the chronic heating problems, the collapsed roof or the pest infestations in the Yates Road apartment, despite the expenditures for extermination and various capital improvements in the reports she reviewed.

“I would have had no way of knowing that unless someone directly reached out to me and said, ‘Hey, this is a problem,’” she said.

Brown didn’t respond when asked why she didn’t file her reviews for 2019 through 2022.

Zbiegniewicz said that for years she had no idea that she could take her complaints to the examiner. When she finally did phone, she said, Brown conferenced in a NYGS employee and left the call.

Brown, who is no longer an examiner, said she didn’t recall that conversation, but that she remembered Zbiegniewicz was vocal about her desire to be released from the guardianship. Brown said that she believed she discussed that with someone at NYGS but she couldn’t recall with whom or what was said.

“I do genuinely care,” she said, “even if you don’t think so.”

Experts said the failure to conduct face-to-face check-ins could hide horrific situations. Judicial leaders, they said, can and should bolster examinations with home visits. For example, in Davidson County, Tennessee, which includes Nashville, social services workers visit wards, review their medical records and interview guardians and their doctors.

“You’ve got to visit the person,” said Booth Glen, the former judge who helped write Article 81. “Paper is not enough when human lives are at stake.”

With Judges, “Things Just Get Locked In”

Examiners are the main check on guardians, but judges also review examiners’ reports before signing off.

Zbiegniewicz believed that if Mayersohn understood how dire her living conditions were, he would require NYGS to fix the situation. The son of a state assemblymember, he started his career as a legislative aide and practiced law for nearly two decades, focusing on trusts and estates, among other civil matters, before being elected to the bench in 2004.

Judge Lee Mayersohn

What Zbiegniewicz didn’t know was how long it could take for information to get to the judge — and how long it could take him to review it. She is just one of 1,566 open guardianship cases currently on the judge’s docket, according to court data. Such a robust caseload, coupled with too few examiners, can add years to the oversight process, creating dangerous gaps in information in cases like Zbiegniewicz’s.

For example, in the spring of 2018, NYGS submitted its guardianship report for the prior year, as required by law. The paperwork contained numerous indications that something was wrong at Yates Road. Notably, no rent payments were listed for the apartment and the company acknowledged for the first time that the house was “not the ideal placement” for Zbiegniewicz.

But a full year passed before the examiner filed her review with the court, where it was eventually checked by clerks and then passed to Mayersohn for approval. In all, the entire process took more than two years. None of the parties raised alarms over, or even noted, the missing rent payments.

Had they dug deeper, they would have found that Yates Road had gone through a foreclosure and been sold to a bank that was moving to evict Zbiegniewicz and her friends. It’s unclear who actually owned the house when NYGS moved her there; the deed had changed hands multiple times in quick succession. During Zbiegniewicz’s first two years in the house, the guardian had sent $32,000 of its ward’s money to a firm run by a Queens entrepreneur who was later convicted of real estate fraud in an unrelated case. When the eviction notice arrived, NYGS stopped paying the rent but appeared to do little else.

“Phone calls to the guardian in an attempt to work out some sort of reasonable solution have failed since the guardian has refused to respond to any call,” an attorney for the new landlord wrote in a December 2017 court filing. The company eventually hired a lawyer to respond to the landlord-tenant action.

For more than two years, while the official reports on Zbiegniewicz’s welfare crawled through the court system, NYGS kept her in the home.

During that time, she endured all manner of horrendous living conditions. According to her emails to NYGS, she went long stretches without heat and rats ate holes through her clothes. When the apartment lost power, she and her roommates had to jury-rig the breaker box with a popsicle stick to feed electricity upstairs.

“You have to get in contact with someone,” she wrote to NYGS on Jan. 20, 2018, when her refrigerator lost power. “We are running extension cord from the basement to up stairs. We are hungry did not eat yesterday.”

When NYGS failed to act, Zbiegniewicz and her roommates complained to the city, triggering visits from building inspectors, who documented no running hot water and failure to supply adequate heat. That prompted the Department of Housing Preservation and Development to sue the new owner, who agreed to pay fines to settle the lawsuit.

It’s not clear just how much Mayersohn knew about these cases. The siloed nature of New York’s sprawling courts can leave guardianship judges in the dark about significant developments elsewhere in the legal system. That makes the guardian's report — and the examiner's review — even more critical for guardianship judges. But neither NYGS nor Zbiegniewicz’s examiner mentioned the escalating legal actions in their reports.

Mayersohn declined to be interviewed, saying judicial ethics opinions barred him from commenting on “any pending case in any jurisdiction,” and he didn't respond to detailed written questions about his handling of Zbiegniewicz’s case.

Within NYGS, staffers were growing increasingly concerned for Zbiegniewicz’s well-being and passed complaints along to David and Sam Blau, said Billini, the firm’s former case manager. A nurse practitioner for the company confirmed the deplorable conditions on her quarterly visits to the house and reported back to NYGS.

“Client remains angry and frustrated over her living conditions — roaches, mice and rats,” the nurse wrote in notes submitted to the guardianship in February 2019. “There is mold — breathing unhealthy. Would like things to move along.”

And yet, nothing changed, Zbiegniewicz said. (The Blaus did not respond to requests for comment on these claims.)

So in 2019, she started calling Mayersohn’s chambers. She phoned so frequently, she said, that the judge’s secretary knew her case number by heart. But the judge never talked to her when she called, she said. Like the examiner, the secretary sent Zbiegniewicz’s complaints back to the guardianship.

"Once a guardian is appointed, the court’s tendency is to just work with the guardian,” said Joe Rosenberg, who co-directs the CUNY School of Law’s Disability and Aging Justice Clinic. “I think it’s tough to get out of that cycle. And perhaps that’s in part because it’s hard to find another guardian. Things just get locked in.”

The demand for guardians is particularly great among elderly New Yorkers “who are alone, with no one to help, and few or no resources,” the Vera Institute of Justice, a legal reform nonprofit, reported in 2018. And so groups like NYGS fulfill the court’s “greatest need,” said acting state Supreme Court Justice Charles Troia during a panel discussion on guardianships in 2021. “We need agencies that are willing to help those that truly have nothing.”

Other judges, the courts’ spokesperson said, have advocated for structural changes, including replacing nonprofits with “a statewide, state-supported public guardian program for indigent persons.”

But for now, without such an agency to serve poor wards with considerable needs, judges have few other options.

Zbiegniewicz was better able to advocate for herself than wards who have severe health problems, but even she worried that her persistent complaints may have hurt her cause. She said she got the feeling that the judge and lawyers and court staff believed she was unstable and therefore easy to dismiss. “It used to drive me up a wall,” she said of the Article 81 designation attached to her name. “That is a badge saying that I'm cuckoo.”

“This Is My Life and I Want It Back”

After years of turmoil, David Blau notified the court in May 2019 that he had negotiated a resolution to Zbiegniewicz’s five-year-plus housing crisis: The bank would pay her $5,000 to leave Yates Road and NYGS would, in turn, place her in an assisted living facility.

Zbiegniewicz “suffers from a debilitating anxiety disorder and requires assistance with her finances,” Blau asserted in a court petition. The conditions, he argued, necessitated a higher level of care. Billini and other staffers inside NYGS disagreed. Zbiegniewicz and her court-appointed attorney did too.

In a June 2019 filing opposing David Blau’s petition, the attorney informed the court that Zbiegniewcz had already moved out of Yates Road on her own. That month she’d married her longtime friend Leonard Hubbard, and the couple were living together in a city shelter.

Nevertheless, Mayersohn ordered Zbiegniewicz to find proper housing and ordered NYGS to “support” her in that endeavor. But again, Zbiegniewicz said, the company failed her. She needed her financial records to apply for subsidized housing, but she said NYGS responded slowly to her requests or not at all. She managed to get the records on her own and worked with a social worker at the shelter to secure a new home, she said.

“I need to be in control of my own life and I can’t wait on you to do something, to give me paperwork, to give me this, or anything,” she told David Blau in an Oct. 29, 2020, voicemail. “This is my life and I want it back. Thank you.”

Listen to Zbiegniewicz’s Voice Message

On Oct. 29, 2020, Zbiegniewicz left this voicemail begging David Blau to release her from her guardianship.

Zbiegniewicz said she never heard back after leaving that message. And because the pandemic shuttered the courts, there were no appearances in her case for more than two years. She was in legal limbo, without any kind of oversight.

“These people do not care about you,” Zbiegniewicz said.

Eventually, she secured a one-bedroom apartment for herself, Hubbard and their new dog, Bogart, in a Long Island City building overlooking the East River for $905 a month. With a housing voucher and public benefits covering two-thirds of the rent, it’s far cheaper than the $1,350 she shelled out each month to live on Yates Road. Ironically, because of an oversight by NYGS, she was able to access her bank account to help pay rent.

Mayersohn finally released Zbiegniewicz from the guardianship in February 2022. In NYGS’ final report, the company disclosed taking $12,551 to cover “unpaid monthly compensation” for the nearly two and a half years she had effectively lived outside the guardianship. The lump sum payment brought the balance of Zbiegniewicz’s accounts to zero.

To date, nobody involved in her case — from NYGS to the examiners who approved the company’s reports — has been held to account. But there is still time for the judge to consider their actions.

Because NYGS failed to file the required paperwork to settle Zbiegniewicz’s account, her case technically remains open. A lawyer for NYGS finally filed that motion in January — two days after ProPublica first contacted the organization for comment on this story. The paperwork now awaits Mayersohn’s signature.

In January, Zbiegniewicz sent a letter to Mayersohn, describing the “injustice and mistreatment” she said she’d endured.

“All I would like is to be heard and for New York Guardianship Services to be held accountable for what they did and did not do for me,” she wrote.

Mayersohn’s secretary confirmed receipt on Jan. 31 but cautioned that, due to a significant backlog, it would take time to resolve her guardianship.

by Todd Wallack, WBUR

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. This story was co-published with WBUR.

Every night, Graciella Carter puts her 5-year-old son to bed with the same routine. She tucks Oscar under some blankets, kisses and hugs him, and stays with him until he drifts off to sleep, no matter how long it takes.

But nothing else is routine. They stay in a different place almost every night. The bed may be a sofa in a friend’s or relative’s living room anywhere in western Massachusetts. Carter usually has to sleep sitting up, at the end of the couch or on a nearby chair, leaning on her fist like a pillow.

Carter and Oscar have been couch surfing since being evicted from their Holyoke apartment in October. She said she fell behind on the rent because she’d been injured in a car accident and couldn’t work for several months. Oscar had to give away his beloved dog, a poodle-Chihuahua mix named Luna. When friends didn’t have room for both Carter and Oscar, she would sit by his side until he fell asleep and then spend the night in her car — until it was repossessed a month ago. Now she gets rides from friends or takes buses, hauling around a pair of laundry bags with their clothes and other necessities.

“It’s hard,” she said recently while playing with Oscar in a small park in downtown Northampton, 20 miles north of Springfield. “It’s just bouncing around.”

The 28-year-old, a high school graduate who has worked off and on as a certified nursing assistant, has been waiting for a state-subsidized apartment for nearly five years, since Oscar was a few months old. She has applied for state-funded housing in 11 cities and towns without getting a single placement, even though some of those communities have vacant family units.

To the disappointment of the Carters and other families desperate for refuge from the winter cold, the state failed to achieve its goal, proclaimed last September, to “significantly reduce” vacancies in state-subsidized public housing by Jan. 1. The “90-day push” followed an investigation by WBUR and ProPublica, which revealed that almost 2,300 state-funded units were vacant, despite a waitlist of more than 180,000 people. The findings came as the number of homeless families increased sharply, prompting Gov. Maura Healey to declare a state of emergency, which remains in effect.

Yet the 90-day initiative barely made a dent in the vacancy totals. According to the latest data available, the number of vacancies has dropped by only 72 since July. As of March 1, the figure stood at 2,219, with most of the decline occurring in the past two months after WBUR asked why the state hadn’t made more progress. More than three-quarters of the vacant units have been unoccupied for at least 60 days, the deadline that the state gives local authorities to fill a unit. Apartments that remain empty beyond that time limit need a state waiver or the local authority may face fines.

Vacancies in Massachusetts’ Public Housing Decreased by Only 72 Units Over Seven Months

The state had pushed to “significantly reduce” vacancies last fall, but it made little progress.

Source: The Massachusetts Executive Office of Housing and Livable Communities

The state also has not fixed key problems that contribute to vacancies, WBUR and ProPublica found. It still doesn’t screen applicants for eligibility when they first apply for housing, and it allows people to sign up in as many as 230 places, including towns too far away for them to realistically relocate to. Almost 13,300 candidates for priority status, which is largely reserved for people in dire need of housing due to situations like fires, domestic violence or a condo conversion, are still waiting for a vendor hired by the state to determine if they are eligible and potentially bump them up the list.

In most states, low-income residents seeking affordable apartments rely on federal public housing or vouchers for private housing. Massachusetts has those options, but it’s one of four states — the others are New York, Connecticut and Hawaii — that also offer state-funded public housing. The state’s 41,500 subsidized apartments are in high demand because Massachusetts has some of the highest housing prices in the country.

Until 2019, local housing agencies in Massachusetts were responsible for maintaining their own waitlists for the subsidized units. That year, the state created a central list with the aim of making it easier for people to find public housing. Instead, the system has become a bureaucratic quagmire.

The waitlist “is not going to get fixed with iterative steps,” said John LaBella, president of HousingWorks, a Boston company that helps people find affordable housing. “It needs a fundamental redesign.”

All the communities where Carter has applied for state-subsidized apartments are in western Massachusetts, and she would be glad to live in any of them. Agawam, a Springfield suburb, has a pair of three-bedroom units that have been vacant since 2021, along with seven empty two-bedrooms that would be suitable for the Carters. But the waitlist functions so ineffectively that the Carters and many other families have yet to receive offers.

When applicants reach the top of the list, Agawam’s housing authority notifies them, then spends hours verifying their information and reviewing their criminal backgrounds, income and references. Ultimately, most of them don’t respond, don’t qualify, or decline to move to Agawam. On average, Agawam vets hundreds of applicants to fill one vacancy, said Maureen Cayer, director of the housing authority there.

The continuing abundance of vacancies “is a failure,” Cayer said. “It’s a failure for the state. It’s a failure for the system. It’s a failure for the housing authority.”

Kevin Sbardella, director of the Fall River housing authority, similarly blamed the state’s centralized waitlist for the nearly two dozen empty units there. He said he wishes agencies could go back to using their own lists. “If I could just go local, I’d fill my vacancies up in a week,” he said.

After WBUR asked in February about the failure to fill more vacancies, state officials made a new set of promises to local housing directors. Ben Stone, director of the state division of public housing and rental assistance, pledged to track vacancies better and provide extra funding to help agencies reduce high vacancy rates. In an email to local housing directors, Stone said the state aims to cut the vacancy rate almost in half, to 3%. That would mean reducing the number of vacant apartments by nearly 1,000.

State housing officials didn’t set a deadline to achieve the 3% mark. They told WBUR that it is a “long-term” objective, and that the medium-term goal is getting under 2,000 vacant units. They said they have been tracking the number of vacancies since 2016, and 2023 was the first year that it declined. “I think we made a little bit of headway,” Housing Secretary Ed Augustus said in an interview.

Augustus said he was surprised to hear that local housing officials were complaining about the waitlist. He said they have told him the system has been working much better since the state hired an outside vendor last year to help screen applicants who requested priority to move up the waitlist.

“They’ve all told me they’ve seen improvements,” Augustus said. “Not perfection. Not every bug has been taken out of the system, but marked improvements.”

The contractor handling the priority review has screened out far more applicants than it has approved. As part of a three-year, $3.3 million contract, Archipelago Strategies Group, a Boston marketing firm, is working its way through a backlog of 45,000 requests to move up the waitlist. So far, it has approved 640 completed applications and denied another 1,435, according to state housing officials. They said the firm has discarded more than 30,000 other applicants because they withdrew, did not respond to requests for more information, or were deceased or otherwise no longer eligible. Most of the applicants approved by Archipelago for priority are still waiting for housing offers, according to the state.

Archipelago has sifted through more than two-thirds of the priority requests, and it is “helping the most vulnerable applicants move forward as quickly and fairly as possible,” said Josiane Martinez, the company’s chief executive officer. “Our centralized screening is saving housing authorities thousands of screening hours, which they can now use to finalize housing placements.”

One priority applicant Archipelago rejected was Carter, the homeless mother in western Massachusetts. One reason she gave for seeking priority was that her injuries made it difficult for her to climb the stairs to the second-floor apartment where she and Oscar had been living. “Your documents show that the Primary Residence was not the impediment to your health,” Archipelago wrote her on Oct. 12. Once she was evicted, she remained ineligible because nonpayment of rent is typically considered the tenant’s fault. To receive priority, applicants must show they lost their housing through no fault of their own.

Carter has been waiting for a state-subsidized apartment since Oscar was just a few months old. (Jesse Costa/WBUR)

“I have a 5-year-old, it’s winter, how does that not make someone a priority?” Carter said. “I don’t care about anything other than finding somewhere to stay.”

Waitlist woes aren’t the only reason for vacancies. More than 100 apartments have been repurposed for uses such as offices, storage or laundry. Hundreds more need major renovation. Augustus said he’s asked his team to make sure there are good reasons for taking such units offline.

Last fall, Healey proposed a bond bill that includes $1.6 billion in funding for capital expenditures in public housing, more than double the previous allocation. The funds would help renovate hundreds of uninhabitable or rundown apartments. But the Legislature has yet to approve it. Augustus estimated that the state has “over $1 billion worth of requests in the pipeline” for public and private development from local housing authorities.

One stalled project is in Fall River, where the state approved an $8 million grant in 2020 to rehab 40 apartments, about half of which are vacant. But the state has yet to sign off on final plans, so the authority can’t seek bids or start construction. One unit has been empty for almost eight years.

“That’s been just moving at a snail’s pace,” said Sbardella, who runs the Fall River housing authority.

A spokesperson for the state housing agency said it agreed to reimburse local housing authorities for $1.5 million in minor repairs and staff overtime during the state’s push to fill vacancies last fall. But some local housing directors said the 90-day window for funding was too short for them to learn about the program, line up workers and win approval from their boards.

“I need a solid four to six months at least,” said Paula Mountain, executive director of the housing authority in Wenham, 25 miles north of Boston. She was only able to take advantage of the offer for two months, she said.

Cayer, in Agawam, said she didn’t tap the money because her state liaison couldn’t explain where it was coming from and what strings, if any, were attached. Stone told housing directors in February that the state plans to extend portions of the aid beyond 90 days.

Meanwhile, Carter and her son are still waiting and hoping to find a place to live. Although Carter has largely recovered from her car accident, she said she had to quit a recent job as a medical assistant because she didn’t have reliable child care or a home to invite a sitter to. She’s separated from Oscar’s father, who is not currently providing any financial help, she said.

In the Northampton park, she watched Oscar leap over a stump, then chased him across the wet grass and spun him around on a carousel.

“You want to spin?” she asked him. “Are you sure? OK, tell me when you have a good grip. You ready?”

Oscar can’t ride his bike or play with his toys at the park; his mother had to put them in storage. Instead, after playing with her and riding the carousel, he entertains himself by collecting sticks.

by Eric Umansky

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

The federal Department of Education has announced a historic $14 million fine against Liberty University for failing to properly handle reports of sexual assault and other campus safety issues.

Universities are required by law to support victims of violence. The Education Department found that the Christian evangelical Liberty University had fundamentally failed to do so. Sexual assault victims were “punished for violating the student code of conduct,” the report concluded, “while their assailants were left unpunished.”

The government found that Liberty’s actions had created a “culture of silence.”

The findings, which the department announced Tuesday, echo a ProPublica investigation that detailed how officials had discouraged and dismissed women who tried to come forward with accounts of sexual assault. Women who went to school officials to report being raped recalled being threatened with punishment for breaking the university’s strict moral code, known as “The Liberty Way.”

The coverage prompted widespread outrage, including demands from senators for a Department of Education investigation.

That investigation culminated in Tuesday’s announcement. The fines against Liberty are more than double the amount of the next-largest fines in Department of Education history — against Michigan State University for its failures to protect hundreds of women and girls from sexual abuser Larry Nassar.

Liberty will also face two years of federal oversight.

Elizabeth Axley, a former Liberty University student who was threatened with punishment when she reported her rape to campus officials, said the government’s findings against Liberty feel “so validating and sort of surreal.”

“For an official report to say, ‘Yes, everything you said happened, everything you described was real,’ is more powerful than I can describe,” said Axley, who recalled that when she first wanted to report her rape, a resident adviser told her to pray instead. “After I first fought to stand up for myself at Liberty, I was silenced. I didn’t feel hopeful. It took everything for me to stand up to tell my story again and hope it turned out right. This reminds me it was completely worth it.”

In response to the government’s report, Liberty University said in a statement that it faced “unfair treatment.” But the school also admitted to mistakes and committed to spending $2 million to improve campus safety.

“We acknowledge and sincerely regret these errors and have since corrected them in a manner that allows us to maintain compliance in each of these areas,” the school said. “Today is a new day at Liberty University. We remain committed to prioritizing the safety and security of our students and staff without exception.”

Liberty University was co-founded in 1971 by the televangelist Jerry Falwell. His son, Jerry Falwell Jr., took over the university’s helm in 2007 but resigned in 2020 after a series of scandals. With more than 90,000 students enrolled on its Virginia campus and online, Liberty remains one of the most influential Christian universities in the country.

S. Daniel Carter, who helped craft the Clery Act, the federal law that requires schools to report sexual assault and other crimes, said the significance of the Department of Education’s actions go beyond the record fines. “It’s not about a bottom line number,” Carter said. “It’s about the fact that they are proactively investigating and leading efforts to bring schools into compliance.”

Hannah Dreyfus contributed reporting.

by Megan Rose

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

Returning to his home state of Utah, where more babies are born with cleft lip and palate than is typical, Dr. Devan Griner made plans to open his own practice, joining the small cohort of plastic surgeons nationwide who treat the condition.

As he recruited doctors to fill out a team in 2017, Griner had lunch with an orthodontist who’d long worked in the state. He quizzed Griner on his credentials and then turned to bone grafting, a common procedure for cleft patients, who are often missing a piece of their upper jaw. Sitting back, the doctor looked hard at Griner and lobbed a test question: At what age would Griner do bone grafts on patients?

It was a surprising question. There is broad consensus nationwide to time bone grafts to when a patient is getting certain adult teeth, and so Griner, a bit taken aback, replied that of course he does it then. That’s when Griner said the orthodontist relaxed, leaned in over their Neapolitan pizza and declared, “We have a bone grafting problem here in Utah.”

Almost immediately Griner encountered it for himself. Patients began turning up who’d had treatment that departed from the standard of care in ways Griner found alarming. In many cases, he felt they’d had, or been advised to undergo, grueling, and possibly unnecessary, facial surgeries earlier than his profession advised. And they were all treated at Primary Children’s Hospital in Salt Lake City.

As more former Primary Children’s patients sought out Griner’s team, the doctors started to question among themselves, and then with other cleft doctors in the state, whether they needed to do something. It’s a rare and risky move to call out a fellow doctor’s work, much less a team at a well-known hospital. Most children born with a cleft in the five-state region around Utah are treated at Primary Children’s, some traveling the farthest distance for care in the nation. It’s the largest pediatric hospital in the area, and for many, it had been the only choice.

A crucial question emerged: Did the hospital’s patients, and their anxious parents, know that the care they were getting at Primary Children’s was different from what cleft surgeons at top hospitals around the country provided?

The question hit at the heart of a common tension in medicine between the sort of innovation that drives life-enhancing advances and the accepted standard of care, which is informed by peer-reviewed medical studies, broad agreement among specialists and insurance company policies. What information are patients, especially children, owed? And how should regulators respond when doctors want to try something new — especially when doctors, and their choices, may be geographically or otherwise isolated from their peers?

Dr. Devan Griner, a plastic surgeon, at the Cleft and Craniofacial Institute of Utah in Provo (Hannah Yoon, special to ProPublica)

In the case of cleft lip and palate, the future of children’s faces are on the line. The success of some cleft procedures isn't fully known until a child has finished growing. Although there can be signs along the way, not until cleft patients are almost adults will doctors be able to fully assess if a certain treatment done at 2 years old was ultimately beneficial or harmful.

Griner’s team and other doctors who’d worked in Utah eventually felt they had to take collective action. A group of nine doctors decided to file a formal complaint with the state, saying “this is about protecting children.” Among their allegations: Some doctors on the hospital’s cleft team were performing bone grafts on patients who were too young — around age 2 — and using an off-label, controversial bone growth product that many doctors shun. They were performing intensive jaw surgeries — which require children to wear a large metal device screwed into their heads for months — so early that they risked some children needing to repeat the operation. And the team was performing surgeries some patients didn’t need.

“They just over, overoperate,” said Lisa Morris, one of the cleft doctors on the state complaint.

Cleft specialists at seven large pediatric institutions around the country, including Seattle Children’s Hospital and Nationwide Children’s Hospital, told ProPublica that the way doctors performed several procedures sharply departed from their speciality’s most common practices.

Utah’s Division of Professional Licensing is investigating the practices of several doctors on Primary’s cleft team, which is staffed by University of Utah doctors. The state agency originally closed the complaint with little investigation, but after an appeal to the head of Utah’s commerce department, which oversees licensing, the division reopened it in April.

Dr. Dana Johns, director of Primary Children’s cleft team, said the fact that her team’s practices don’t align with those of her colleagues in the field “doesn’t mean that different is wrong.” She said that intervening earlier helps protect children with visible facial differences from a gamut of bullying in their formative teen years.

In interviews, both Primary Children’s and the University of Utah told ProPublica they stand by their protocol and fully inform their patients during appointments about how and why their care differs. What the team does is “clinically defensible and potentially advantageous,” Kathy Wilets, a University of Utah Health spokesperson, wrote in a statement.

But ProPublica’s questions, the hospital said, prompted the hiring of two independent cleft surgeons to formally review the protocol. Bioethicists have also reviewed the hospital’s informed consent procedures, leading administrators to make changes to its cleft consent policies and consider hospitalwide changes.

Dr. Jay Agarwal, the hospital’s chief of plastic surgery, said the cleft team believes the standard methods of treating cleft lip and palate aren’t good enough and is trying to advance care by fixing children’s mouths at younger ages and in ways that could eliminate the need for surgery when they’re older.

“We always have to try to do better,” he said.

But parents of some of Primary Children’s patients say their children were unwitting participants in what the hospital calls innovation and what some other cleft experts deemed a potentially risky deviation from evidence-based treatment. Experts said bone grafts done at such an early age could stunt facial growth, resulting in the upper lip looking pushed back and impairing basic tasks such as talking and chewing.

The final results of the early bone grafting won’t be known for years. Patients treated under the new bone-grafting protocol Primary Children’s started around 2017 won’t start seeing full outcomes until around 2029.

Emily Rogers still feels the burden of remorse six years after her son’s bone graft when he was 21 months old. She, like members of several families ProPublica spoke with, said the former head of the program didn’t tell her that bone grafting at that age was unusual, that the hospital was just starting to try it or that doctors weren’t sure how her son’s face would grow after the procedure.

“It’s sickening to find out later you put your kids in their hands and they lied to you, basically,” she said. “That’s what it feels like: It was a lie.”

Gavin Rogers, 7 sits with his mom, Emily Rogers, at their home in Farmington, Utah. (Hannah Yoon, special to ProPublica) The Standard of Care

From the time a cleft is spotted on a sonogram during pregnancy, parents begin prepping for a series of surgeries to help their child with a noticeable facial difference. Each step of care throughout childhood builds upon the last, slowly marching the face toward the form it failed to take in the womb. A doctor’s misstep can veer the mouth off course or mean more surgery.

People unfamiliar with clefts, besides perhaps what they’ve seen on Operation Smile fundraising commercials, tend to think of the treatment as a one-and-done surgery to repair a small slit in the lip. And while that can be the case, for a lot of babies born with the condition, it’s much more involved. Often, a wide split starts at the nostril, goes down the lip, runs through the upper jaw and continues back through the roof of the mouth toward the throat. Sometimes there are splits on both sides of the mouth.

Cleft lip and palate together affect about 1 in 1,600 babies in the U.S.; around 2,500 are born with both each year. It is unclear why Utah has a higher rate. In general, the cause of a cleft is not well understood. According to the Centers for Disease Control and Prevention, there is some evidence that genetics can play a role, and some environmental factors, such as smoking during pregnancy or taking certain medications, can increase the chances of a cleft forming, which happens in the first trimester.

With cleft lip and palate, often a split starts at the nostril, goes down the lip and through the upper jaw, and continues back through the roof of the mouth toward the throat. Sometimes the split is on both sides of the mouth. (Illustration by Matt Twombly for ProPublica)

A cleft can affect a child’s teeth, position of the midface and nose, and ability to hear, breathe, swallow and speak. Many cleft patients need care from a range of specialists from their earliest days until adulthood. Successful cleft treatment repairs those issues, leaving patients’ faces with little evidence of their cleft issues by the time they are grown.

Like most well-known conditions, there is a treatment plan for cleft lip and palate that a majority of doctors follow, known generally as the standard of care. ProPublica spoke with more than a dozen cleft specialists nationwide, and all acknowledged the variability, subjectivity and debate in cleft care. Several pointed out there aren’t large randomized trials that have definitively provided answers, and care continues to evolve. Still, they all laid out the same general timeline of cleft treatment and the reasons for it.

Doctors usually repair the lip and nose around 3 to 6 months, close the palate around 9 to 18 months and then wait to do a bone graft until children are about 5 to 11 years old, though there is debate about when in that age range is best. Jaw surgery, if needed, typically waits until the child is done growing. Most patients will need rhinoplasty and years of orthodontia as well and, in some cases, additional surgeries to help with things like speech.

Richard Kirschner, chief of plastic and reconstructive surgery at Nationwide Children’s in Ohio and the editor of a widely used cleft textbook, said this timeline is based on evidence collected over decades in the care of thousands of patients.

To the doctors at Primary Children’s, the skepticism they’re facing is the plight of pioneers.

“I think it’s easy to keep doing things the same way in the way they’ve always been done,” said Agarwal, who noted that he doesn’t think there is a standard of care in cleft. “And, you know, that’s the answer for a lot of groups that they feel like they don't want to try new things. And that’s OK. I mean, nothing’s wrong with that.”

Dr. Dana Johns in an exam room at Primary Children’s Hospital (Kim Raff, special to ProPublica)

Faizi Siddiqi, who helped start the university’s cleft team in 2003, stopped practicing last year and died from cancer in January at age 58. ProPublica was unable to reach him for comment before his death. Duane Yamashiro, an orthodontist who was the medical director of the cleft program for almost 20 years, declined through a spokesperson to comment. So did the most senior plastic surgeon currently on the team, Barbu Gociman. All three are named on the state complaint. Johns and the rest of cleft team doctors are not named on the complaint, and the hospital and the University of Utah declined to comment on it.

“We stand firmly behind our surgical approaches and believe they deliver the best outcomes for our patients, although, through an extensive review of our program we realize there are opportunities to improve the way we communicate with our patients and their families,” Wilets said in a written statement. “The safety and care of our patients is the most important thing to us.”

“We apologize for any distress to any patient family who feels we didn’t meet their expectations and did not feel comfortable addressing their concerns directly with us,” Wilets wrote.

The hospital has around 700 to 800 cleft patients at any given time, and Wilets said its cleft outcomes are in line with or better than other centers’.

In responding to concerns that patients’ families told ProPublica about, Jess Gomez, a hospital spokesperson, wrote, “We have no record of prior complaints from the families you’ve identified regarding their care, and we are saddened to learn of the concerns you’re sharing with us.” He added that the patients were cared for by Siddiqi, so the hospital is unable to respond to specifics about treatment discussions.

Innovating in surgery is a gray area. Unlike drug development, which has strict rules, surgeons are allowed wide leeway to try new things. “It’s a little bit of the Wild West,” said Dr. Jonathan Marron, director of clinical ethics at Harvard, and there isn’t agreement on what the right balance is between supporting innovation and protecting patients.

Doctors have an ethical obligation to make sure their patients are aware of how their protocol differs and what the rationale is for not doing the standard. “Informed consent, in my mind, is an important aspect of this,” he said.

As more and more doctors stick to a standard, the less acceptable a deviation from that standard practice is, Marron said. But figuring out where that line is can be difficult.

Innovating in surgery is not an area that’s robustly regulated. Last year, Utah lawmakers made it easier for doctors to practice outside the standard by loosening the rules that had restricted it, though the law still requires that patients are informed in writing and consent. The hospital and University of Utah didn’t respond to questions about whether patients are informed in writing about any deviations from the standard of care. Since ProPublica began reporting, the hospital has updated its written informed consent form regarding families’ options, Wilets said, and it now “more explicitly” tells patients that there is no standard protocol for cleft patients and different institutions have different protocols.

In other parts of the world, cleft lip and palate care has undergone changes based on government oversight. For example, in the United Kingdom there used to be many cleft centers with wide variations in success. Then the government audited outcomes, looking at factors such as how well patients were able to speak and how well their jaws aligned. Some centers achieved much better results with fewer surgeries. The government consolidated care among fewer centers to improve results and consistency. There isn’t any similar oversight in the United States.

“I think the important thing to understand here is that there’s not a whole lot of regulation in terms of who is looking after clinical outcomes,” Kirschner said. “And so it’s really [left] up to parents to do their research.”

An Outside Doctor

When Griner questioned the parents of the former Primary Children’s patients, he said, none of them understood that the treatment their child had received wasn’t the norm. The parents cycled through shock, anger and grief in his office so often that eventually he could tell by their faces what they’d say next, he said. The remorse stage was the hardest to hear, with parents blaming themselves for not asking more questions.

The parents, dogged by inchoate worries, had come to him seeking a second opinion once Griner and his partners opened their practice, he and some patients said.

Griner, who remembers going door to door to fundraise for Primary Children’s as a child, said he’d always believed that the hospital’s general excellence included the cleft team. He had wanted to work there. But Griner says that after he chose a fellowship position in Texas instead of with the University of Utah, relations soured.

Later, after seeing the unit’s handiwork firsthand in his practice, he took his concerns to the hospital’s administration. During 2018 and 2019, he said, he had three conversations with different levels of leadership, including the hospital’s then-CEO, about the poor cleft outcomes he and others were seeing. Each time, he said, his concerns weren’t taken seriously.

A spokesperson for Primary Children’s said the former CEO and another administrator couldn’t recall any such conversations, and the third, a director of surgical services at the time, said he recalled only casual conversations between colleagues. “If a concern were adequately raised by Dr. Griner, the concern would have been investigated and necessary action would have been taken,” Gomez said in an email.

As Griner’s new cleft team settled in, their worries mounted. Once a month, the cleft team would meet with patients to collectively discuss next steps. After a former Primary Children’s patient would leave one of those meetings for the first time, the doctors said they would look at each other, shaking their heads: “Can you believe that?”

Griner checks the teeth of Robbie McFerson, 4, while his mom, Sarah McFerson, holds him at the Cleft and Craniofacial Institute of Utah in Provo. (Hannah Yoon, special to ProPublica)

Primary Children’s undertakes two surgeries to repair the palate instead of one, something most doctors in the United States have stopped doing. The hospital is unusual in that it uses a prosthetic device to cover the palate hole, which requires more time under anesthesia when swapped out for a new one. The hospital also often surgically expands the palate of young patients when a retainer-like device would typically be used instead.

To Griner and his team, the timing of two major procedures — bone grafting and jaw surgeries — were worrying enough on their own, but along with other ways Primary Children’s is an outlier, they were concerned that patients were getting aberrant care at many stages.

Finally, in 2022, a group of doctors — many of whom compete with Primary Children’s — raised the issues with the state. Ten doctors’ names appear on the complaint, though one told ProPublica that although he agreed with many of the concerns, he wasn’t aware he’d been included on it.

(One of the plastic surgeons who signed the complaint, Rodney Schmelzer, has a complicated history with Primary Children’s. He lost his privileges there in 2017 and has two ongoing lawsuits against the hospital, one of which also names Yamashiro and Siddiqi. The hospital and the doctors have denied the allegations.)

Utah’s Department of Commerce, which oversees the Division of Professional Licensing, said it could not confirm nor deny an investigation.

The complaint alleges that Primary Children’s doctors “routinely exploit Cleft Patients and their families by … subjecting [them] to excessive numbers of surgeries outside the standard of care” without being honest about the risks, benefits or alternatives, which the doctors say violates medical ethics and Utah law.

Major Jaw Surgeries

Paige Holland started looking for a second opinion when Primary Children’s said her 7-year-old son would next need major jaw surgery to correct the underbite that commonly afflicts cleft patients.

The operation, called a LeFort distraction, sounded medieval to Holland: Doctors would cut part of his upper jaw from his skull and screw a rigid metal device, called a halo, to the outside of his head. Wires would attach his upper jaw to the device, and every day for weeks Holland would turn screws to tighten the wires and slowly pull her son’s jaw bone forward and allow more bone to grow. He’d wear the halo for months.

The LeFort Halo Procedure Initial jaw alignment: Cleft patients often have severe underbites. This can affect how the face looks and can also impact basic functions, such as chewing. Surgical procedure: Doctors make cuts along the upper jaw so it can be repositioned. LeFort device attachment: Doctors screw a rigid metal device, called a halo, to the outside of the head and attach it to the upper jaw. After the surgery, patients tighten the wires daily to pull the jaw forward over the course of a few weeks. New bone grows, lengthening the jaw. The child wears the halo for several months to allow the bone to heal. (Illustrations by Matt Twombly for ProPublica)

Jaw surgeries aren’t unusual for cleft patients, but the age Primary Children’s often does them makes the hospital an outlier. Holland’s son would have been as young as 9 at the time of the surgery, according to his Primary Children’s medical records reviewed by ProPublica.

The American Cleft Palate Craniofacial Association guidelines state that “whenever possible, [jaw] surgery should be delayed until physical maturation is essentially completed.’’ Cleft doctors at six leading hospitals said they don’t perform jaw surgeries until children stop growing. For girls, that’s about 14 to 16 years old; for boys, it’s closer to 18.

Until recently, Primary Children’s website told families to expect possible jaw surgery between 9 and 10 years old. But it has since changed the age range to between 9 and 15-plus. Some other cleft centers also perform early jaw surgeries, and Kirschner told ProPublica he thinks that surgeries performed before maturity fall within the standard of care, though he personally waits for patients to be grown.

Primary Children’s data from 2020 showed that the average age of LeFort halo surgery there was 11.4 years old, according to a paper published by the hospital’s cleft team that analyzed nearly 60 cleft patients who had halos over a three-year period. The age of the patients ranged from 8 to 16 years old.

Cleft doctors ProPublica spoke with said they perform jaw surgery before maturity in only a tiny proportion of cases, usually only if medically necessary. Dr. Roberto Flores, head of the program at NYU, estimated the number at no more than 5%.

At Seattle Children’s Hospital, even in those extraordinary cases, the surgery would not happen until 12 to 14 years old, when most of the adult teeth are finished coming in, according to the hospital’s former chief of craniofacial surgery, Richard Hopper.

“I’ve been with the cleft team for 20 years, and I can pretty conclusively say we haven’t done a Lefort … on a patient younger than 12 years old, 11 at the earliest,” Hopper said last year before he took a job with Texas Children’s Hospital.

“The earlier you do a jaw surgery, the more likely you’re going to have to repeat it later,” a cleft team surgeon at a top-rated pediatric hospital said. “Basically you’re committing kids to having an extra operation.”

The best practice, many doctors said, is to do one definitive jaw surgery close to adulthood.

“It’s a brutal enough operation. You wouldn’t want to have to do it twice,” a leader in the field said. Both doctors asked not to be identified out of concern it would jeopardize relationships within the small community of doctors who provide cleft care.

Primary’s Johns said such critiques ignore the psychosocial issues children with cleft deal with. Bullying should be given more weight in treatment plans, she said, and repairing a child’s differences before high school has merit. Most of her surgeries wait till at least age 12, she said, and when she does them on younger patients, it’s for either psychosocial or other pronounced medical problems.

Dr. Trace Lund checks Robbie’s palate and teeth. Children with cleft lip and palate often have extra or missing teeth, or teeth that emerge in the wrong spot. (Hannah Yoon, special to ProPublica)

Moreover, patients who wait until maturity can sometimes require extensive operations involving both the upper and lower jaws, Johns said. Patients who’ve had the surgery young might require a second jaw surgery, she said, but it would involve only the upper jaw. The trade-off, she said, is worth it.

Rohit Khosla, surgical director of the cleft team at Stanford Medicine Children’s Health who trained Johns during her fellowship, reviewed all of the hospital’s protocols at her request. In general, Khosla told ProPublica that he thought the hospital’s methods were controversial but not problematic. He found several problems with the cleft team’s study designs and conclusions, but overall its “protocols are conscientiously thought out with [a] goal to provide a high level of care,” he said in a summary of his report. The hospital would not share his full written review and asked Khosla to stop speaking with ProPublica once it was completed. Primary Children’s also set up a double-blinded review — neither the hospital nor reviewer knew whom the other was — to further assess its protocols, but the hospital said it would not make the report public when it was completed.

In looking at the hospital’s latest LeFort data, Khosla wrote that in the “last few years” the average age has increased to 14, “which I find more acceptable.”

On a Facebook page for Utah parents of children with cleft, numerous posts over the years speak to the hospital’s push to perform LeForts young. Some talk about how their children endured the surgery before 10 years old — “not going to lie the Halo is tough!” one mother wrote — and needed to repeat a jaw surgery as a teenager.

Holland said she thought there had to be another way to fix her son’s underbite and asked about braces. After Primary Children’s said there wasn’t, she said, she sought a second opinion with Griner, who sent him to an orthodontist instead. Holland’s son was one of at least seven former Primary Children’s patients whom Griner said he diverted from having surgery before maturity. None of them, in Griner’s opinion, had any medical necessity for the operation before maturity or reported bullying or other psychosocial issues. Schmelzer, who also signed the complaint against Primary Children’s, said his medical records showed similar numbers.

Griner recalled one startling case last summer in which Primary Children’s had lined up surgery for a 9-year-old child whose jaw was nearly normal. An independent plastic surgeon who specializes in cleft at a large academic institution reviewed the patient’s CT scan for ProPublica and confirmed Griner’s assessment that there was no need for surgery.

Holland’s son, now 13, has only a minor underbite after orthodontics and likely won’t need jaw surgery at all.

“He’s totally fine,” Holland said. “He was saved from a major surgery.”

Experimenting With Bone Grafts

About seven years ago, spurred by what Johns said was a “hypothesis we had,” Primary Children’s cleft team began experimenting with how surgeons bone grafted the upper jaw.

Without putting in place the protections of a formal research study, Johns and her colleagues decided the invasive surgeries could be done successfully when children were years younger — age 2 — than was standard practice in their field.

The “gold standard” for a bone graft is to use a piece of the child’s own hip. At 2, a patient doesn’t have enough bone to harvest. So over a period of about two years, Primary Children’s tested in its toddler-age patients different combinations of materials that would create a lasting bone graft.

Among the materials was a controversial product called bone morphogenic protein, or BMP, which stimulates bone growth. The BMP is put into the jaw where the child is missing bone and, in theory, spurs the body to naturally make bone, gradually filling the gap.

Some cleft doctors have hailed BMP as a less invasive way to treat patients since it first came to market in 2002 — but Primary Children’s believed it could be used in children years younger than their peers at other centers.

The parents of several patients told ProPublica they were never informed that their child was undergoing an untested procedure. In some cases the bone graft failed, necessitating a repeat of the painful operation.

In 2017, Gavin Rogers, 21 months old with the wispy blond hair of a baby, had bone graft and hard palate repair. Afterwards, “he was screaming all the time. He wasn’t sleeping, wasn’t eating. I had to squirt milk into his mouth,” his mom, Emily Rogers, recalled.

Gavin at 21 months, after his bone graft at Primary Children’s Hospital in 2017. His parents said they weren’t told that a bone graft at that age was unusual. (Courtesy of Emily Rogers)

Primary’s decision to use BMP in toddlers was a risky bet. In 2015, the U.S. Food and Drug Administration issued a safety warning about using BMP in children. The warning said that BMP hadn’t been approved for children “because their bones may still be growing and using this product may cause serious injuries.” The FDA action followed revelations of injuries, including alleged deaths, related to the use of BMP in spine patients. BMP’s maker was subjected to a congressional investigation and paid hundreds of millions to settle civil suits.

The FDA recommended against routine use in children and told doctors to be sure to inform parents about the risks.

Doctors are allowed to use products like BMP for so-called off-label purposes and commonly do, often to the benefit of their patients. In 2017, Dr. Jeff Hammoudeh, a plastic surgeon at Children’s Hospital Los Angeles, published one of the largest studies of BMP in cleft patients and found that over nine years of use its safety and success was comparable to using bone from the child’s hip. But the average age of his patients was 11 and his youngest patient was 6. He said he wouldn’t use BMP in patients any younger than that because of concerns, shared by other experts, about the long-term growth of a child’s face and questions about the safe amount to use in a child of that size.

Johns, of Primary Children’s, said that Hammoudeh’s study was one of the reasons her team felt confident in using BMP.

Hammoudeh said doctors need to be up-front about what they are doing and build in clear guardrails. When he experimented with performing lip repairs in newborns, he did so through a supervised research study. Parents, he said, were given the choice to have the traditional protocol, just as they were for bone grafting with BMP.

Some doctors may eschew the word “experiment” when trying out a new protocol, he said, but that’s what it is — even if they deem it “innovation.”

“You can soften the terminology any which way, but if you don’t know what the results will be, you don’t know what the results will be,” he said.

Johns told ProPublica she doesn’t offer parents the choice to have a bone graft at the traditional age because she’s confident that her way is better. Giving them the option, she said, “means that we’re telling them, ‘OK, we’re going to allow you to have subpar results.’”

Johns said that since as early as 2018, the parents of patients have been told that the new protocol is superior to traditional care, a claim she said is supported by observational results from the team’s first patients.

The Rogerses and other parents who spoke with ProPublica said Siddiqi, the lead plastic surgeon at the time, led them to believe that grafting at toddler age was the standard of care.

“One hundred percent,” said one mom, whose daughter was not yet 18 months at the time of the procedure and had to repeat the surgery later. She said the conversation with a reporter “was the first I’m hearing this isn’t typical.”

After his surgery, Gavin happened to see a new doctor outside the hospital. Rogers said she stopped breathing when she learned that around the country, many doctors time bone grafts to when certain adult teeth come in. Gavin still didn’t have all his baby teeth.

And the bone graft didn’t work. Gavin faces a second bone graft surgery this summer at 8 years old — in the age range when most other doctors would have done it the first time.

Gavin lies on his bed at his home in Farmington, Utah. He’ll need a second bone graft surgery this summer. (Hannah Yoon, special to ProPublica)

Four years after Primary Children’s started the protocol, the hospital did its first formal study — a review of 14 patients’ medical records. From around 2017 to mid-2019 — when Johns was telling patients the protocol was a success — the cleft team used different surgical techniques and a combination of bone products, including the BMP, that proved unreliable, and some patients needed additional grafts, according to the study and a university spokesperson.

A hospital spokesperson said its bone grafting procedures have advanced since patients such as Gavin had the operation. Khosla, the Stanford doctor who reviewed the protocol, reported in his summary that newer hospital data demonstrates good early results.

Johns and Agarwal said their new protocol was a slow evolution and didn’t need to be overseen by independent reviewers. Performing a bone graft sooner, they said, would solve a common problem in cleft patients in which the arch of their mouth is narrow and collapses inward as they grow. Moving to age 2 was a minor progression, Johns said, noting that the mouths of a 5-year-old, the youngest age most doctors would do a bone graft, and a 2-year-old are similar.

“There was nothing that felt outlandish about it,” Johns said.

Johns concedes they don’t know yet how their patients’ faces will grow over time. So far, she said the outcomes are trending in the right direction, “but we recognize that we’ve got eight more years to continue to see if it holds up.”

She’s clear about this uncertainty with her patients, she said, as well as how Primary’s protocols diverge from the standard. She said if parents are uncomfortable, she encourages them to seek a second opinion. (One mother said Johns’ colleague told her that he would no longer treat her son after she sought a second opinion.)

Primary Children’s Hospital in Salt Lake City (Kim Raff, special to ProPublica)

Jessica Bernstein, whose 6-year-old son is a cleft patient at Primary Children’s and whom the hospital connected with ProPublica, said she had the utmost confidence in the care received and felt Johns and the other doctors carefully thought out decisions. She said they told her that the hospital’s timeline for care was based on the latest, best research. Although she said she wasn’t informed that aspects of the hospital’s protocol differ from the standard or that BMP was off-label for children, she felt her son was being treated in the right place.

Other cleft doctors said previous attempts to fix the upper jaw line between birth and 2 years old — known as “primary bone grafting” — were abandoned because of poor outcomes.

Dr. Ron Hathaway recalls when he was at the University of Indiana and participated in a study that compared outcomes at five cleft centers. One fared significantly worse. The upper jaws of many of its patients didn’t grow as expected, leaving them with underbites. Hathaway was stunned to learn it was his program.

Indiana, it turned out, was the only one that grafted before age 2. The others waited until patients were school age. Hathaway had been involved in such grafting at Indiana since 1992, and now he faced the humbling data that his patients were three times more likely than the study’s best center to need invasive jaw surgery because of it.

“I had to go home and have a serious conversation with my surgeons,” he said.

Indiana eliminated primary bone grafting, and when the study was repeated 10 years later, Hathaway said, outcomes had drastically improved. While this type of research can’t definitively prove causation, he said, “a thinking person would say primary bone grafting causes [poorer growth] of the upper jaw.”

The original study was published in 2011, joining a body of research over decades that showed such grafting was “significantly detrimental,” Kirschner, of Nationwide, said.

Nevertheless, in 2016 the cleft team at Primary Children’s began questioning whether operating earlier would be better, said Agarwal, the chief of plastics. He and Johns said what they do is different — in terms of a slightly older age and specifics of the procedure — from the primary bone grafting of the past. Khosla, of Stanford, wrote in his review summary that the protocol challenges conventional wisdom, but “their rationale and the theoretic benefits are sensible.”

For Cindy Anderson, whose daughter’s bone graft echoed Gavin’s in both timing and failure, it wasn’t just that her daughter had to repeat a surgery. Had they been informed of the innovative nature, Anderson said they might have agreed because of their faith in the doctors. But not to be given a chance to consent made them feel duped.

She said they’re left wondering about Primary Children’s: “What the heck are they doing?”

Mariam Elba contributed research.