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The Colorado River Flooded Chemehuevi Land. Decades Later, the Tribe Still Struggles to Take Its Share of Water.

1 year 9 months ago

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At night, the lights of Lake Havasu City’s hotels, boat launches and neighborhoods reflect off the reservoir that gave this busy Arizona tourist town its name. The federal government dammed the Colorado River just downstream in the 1930s, providing the water and recreation opportunities that have allowed the community to flourish.

The opposite side of the reservoir is dark and so quiet that water lapping on the shore and bats clicking overhead can be heard over the distant hum of boat engines. This is the Chemehuevi Indian Tribe’s reservation in California. The water that rose behind Parker Dam to create Lake Havasu washed away homes and flooded about 7,000 acres of fertile Chemehuevi land, including where members grazed cattle.

The communities across the reservoir reflect the vast divide in economic opportunities between Indian Country and the rest of the West, which has been perpetuated, in large part, by who received water and who did not.

In 1908, the U.S. Supreme Court ruled that the federal government owed tribes enough water to develop a permanent home on their reservations and that their water rights would hold senior priority, meaning they trumped those of others. In the Colorado River Basin, most tribes, even in a drought, should get water before Phoenix, Las Vegas, Los Angeles and elsewhere.

More than a century later, only a few basin tribes have benefited from this system. Of those that have, some live near federally funded canals and pipelines that can deliver water to their land, others received money to build their own water systems and some negotiated for the right to market their water to other users. The Gila River Indian Community, for instance, recently struck a deal with the federal government to forgo using some of its water in exchange for up to $150 million over the next three years, depending how much water it conserves, and $83 million for a new pipeline.

But most of the basin’s 30 federally recognized tribes have faced seemingly endless barriers to accessing and benefiting from all of the water to which they’re entitled. The Chemehuevi’s reservation fronts about 30 miles of the Colorado River, yet 97% of the tribe’s water remains in the river and ends up being used by Southern California cities. The tribe never receives a dollar for it.

The Chemehuevi Reservation Fronts About 30 Miles of the Colorado River Boundaries of Native American reservations and trust land are from the 2018 U.S. census. (Lucas Waldron/ProPublica)

The water that has already been guaranteed to basin tribes but remains unused totals at least 1 million acre-feet per year — nearly one-tenth of the Colorado River’s flow in recent years and nearly four times the Las Vegas metro area’s allocation. If sold outright, this water would be valued at more than $5 billion, according to a ProPublica and High Country News analysis. For the Chemehuevi, a tribe with about 1,250 members, that means the amount of water it has on paper but doesn’t use would have a one-time value of at least $55 million.

Steven Escobar, the Chemehuevi’s tribal administrator, grew up testing his mettle against the Colorado River’s currents, swimming across its cold waters upstream of the reservoir. He still thinks of the river in terms of struggle. But now, it’s a struggle for the tribe to get the same help from the federal government to access water as others have, or, if not, to get compensation for what’s legally theirs.

“All that development and governmental support that they provide every state, that should be the same thing they provide to tribes,” Escobar said. “We’ve had to fight for everything out here.”

Steven Escobar, the Chemehuevi’s tribal administrator, says it has been a struggle for the tribe to get the same help from the federal government to access water as others have. (Russel Albert Daniels for ProPublica and High Country News)

As demand on the Colorado River far exceeds its supply, tribes worry that they’ll never receive the water they’re owed.

The Chemehuevi are left in a bind. The tribe doesn’t have the pumps or other infrastructure necessary to deliver its full allotment of river water to its reservation. While the federal government gave the tribe a grant to build a small reservoir, neither it nor the state of California has allocated money to build a larger delivery system.

Even as a backup option, the tribe is unable to lease its water to other users, like rapidly growing cities, or earn money by leaving it in the river to preserve the waterway. Antiquated laws and court rulings typically allow tribes to be paid only to conserve water they previously used. Any changes to how a tribe could market its water would take an act of Congress.

“This is a long-standing problem,” said Mark Squillace, a professor at the University of Colorado Law School. “From the perspective of the people using that water, why would they pay when they’re already getting it for free?”

The Law of the River at Work

A half-century ago, the Bureau of Reclamation began construction on a massive canal called the Central Arizona Project to send the waters that flooded the Chemehuevi’s land 336 miles across the desert to Phoenix and Tucson. The pumps that power the system, which help deliver the state’s share of the Colorado River, are the largest single consumer of electricity in the state.

Meanwhile, the Chemehuevi rely on a single diesel pump to draw water six stories up to the plateau where they live above Lake Havasu.

The Chemehuevi reservation in the foreground and Lake Havasu City in the background. The reservation fronts about 30 miles of the Colorado River, yet 97% of the tribe’s water remains in the river. (Russel Albert Daniels for ProPublica and High Country News)

For at least 50 years, the river’s decision-makers have recognized this disparity in water access. In 1973, a body called the National Water Commission submitted a report to Congress: “In the water-short West, billions of dollars have been invested, much of it by the Federal Government, in water resource projects benefiting non-Indians but using water in which the Indians have a priority of right if they choose to develop water projects of their own in the future.”

For tribes, the first challenge is securing their water rights. After the Supreme Court’s 1908 decision confirming tribes’ right to water, two paths emerged to quantify and settle the amount and details of those rights. Tribes could, with the backing of the Department of the Interior, negotiate with the state where their reservation is located. Or they could go to court. Fourteen basin tribes are still in the midst of this process, but either path they choose presents trade-offs.

Tribes that negotiate typically need to trade some of the water they believe they’re owed in exchange for money to build water-delivery infrastructure. They can also trade their water priority — leaving them more susceptible when allocations are cut, a reality that’s already threatening to curtail tribes’ water amid the West’s ongoing drought.

For tribes that choose to go through the courts to get their water, there’s no opportunity to negotiate for funding for canals, pipes and pumps, meaning there’s no way to move the water they’re awarded onto a reservation.

“It’s not enough to have the right to the water,” Squillace said. “You also have to have the infrastructure.”

Highlighting the difficulties in converting rights to water on paper into actual water on a reservation, tribes around the West that secured a negotiated settlement for their rights only increased their agricultural land use by about 9% and saw no increase in residential or industrial development, according to estimates from a recent study published in the Journal of the Association of Environmental and Resource Economists.

And if a tribe can’t move water, it often can’t monetize it.

Colorado River Indian Tribes farmland. The tribe recently got a bill through Congress that will allow it to make millions of dollars from leasing its water. (Russel Albert Daniels for ProPublica and High Country News)

Laws passed between 1790 and 1834, known as the Indian Non-Intercourse Acts, have the effect of prohibiting tribes from leasing water beyond the borders of their reservations without congressional approval. Settlements also typically bar them from permanently selling their water and often prohibit their right to lease it.

“This Is What’s Left”

Politicians packed a conference room at the Arizona Capitol in April, where they unveiled an agreement to pay the Gila River Indian Community millions of dollars to leave its water in Lake Mead. Officials took turns at the lectern extolling tribes for their role in preserving the Colorado River.

“We don’t have any more important partners in this effort than in Indian Country,” Deputy Secretary of the Interior Tommy Beaudreau said.

When the Gila River Indian Community negotiated its water rights, the Central Arizona Project had begun carrying Colorado River water near its reservation south of Phoenix and the tribe had some political clout after spending millions of dollars on lobbying. Those advantages allowed the tribe to negotiate tens of millions of dollars for infrastructure to deliver its water and the right to lease tens of thousands of acre-feet to nearby cities and a mining company. Its settlement has now made the tribe a well-compensated partner in conservation efforts.

“These are truly historic investments in directly tackling the challenge presented to our state and our region by the historic drought,” Gila River Indian Community Gov. Stephen Roe Lewis said during the April news conference announcing the deal to trade more water for money. The tribe declined requests for additional comment, as it is negotiating further water deals.

Colorado River Basin Tribes Face Hurdles Using Their Water Rights

Across the Colorado River Basin, tribes have fought for years to benefit from their water rights. But because of the fraught process to secure rights and move that water onto reservations, many have yet to realize the full benefit of what’s rightfully theirs. Here are a few examples.

In central Arizona, nearly two-thirds of the Yavapai-Prescott Indian Tribe’s surface water allotment flows down Granite Creek, where the town of Prescott can use it for free.

In Colorado, the Southern Ute Indian Tribe irrigates about a third of its arable land, as it searches for $100 million needed to repair a dilapidated canal system.

Just east of Phoenix, the Salt River Pima-Maricopa Indian Community is neither using nor leasing about 61,000 acre-feet of its water, the volume that 540,000 Phoenix residents use in a year. A clause in the tribe’s settlement bars it from leasing much water.

Several tribes have secured the right to lease, but it’s been case by case. With the support of Arizona’s senators, the Colorado River Indian Tribes got a bill through Congress that gives it that right. President Joe Biden signed it in January. The law helped in “stabilizing more of our sovereignty of our natural resources,” Chairwoman Amelia Flores said.

The law only gave that right to one tribe.

For the Ute Mountain Ute Tribe, the roadblock is a quirk in the laws that settled its water rights, which prohibits the tribe from using the portion of its water held in Lake Nighthorse, a reservoir in Colorado, for agriculture. But that’s precisely why the tribe needs it.

Chairman Manuel Heart is tired of neither getting the full allocation of water nor being compensated for leaving it in the system for the benefit of others.

“If you guys want to use it,” he said, “then pay us.”

Even if tribes were able to negotiate their way out of their water-leasing woes, for some, it isn’t about getting the highest price for a culturally significant resource.

The Tohono O’odham Nation leases just a fraction of its water and isn’t looking to market more. “We were told by our elders that we should never sell our water,” San Xavier District Chairman Austin Nunez said.

The Chemehuevi, by contrast, can’t access or lease most of their water. Their rights were quantified and settled via the courts in the 1960s, at a time when the tribe didn’t have federal recognition. So it didn’t receive infrastructure funding.

Escobar, the Chemehuevi’s tribal administrator, would prefer to use his tribe’s water, not lease it. He wants to expand pumping capacity and construct a cascading series of reservoirs. Once the Chemehuevi access the water, they could use it for more houses to bring enrolled members back to their land, new businesses to provide jobs and increased farming to grow the reservation’s economy.

Escobar talked about his dreams and the difficulty in developing Indian Country as he drove past the frames of unused greenhouses, evidence of a failed venture. Near a field where the tribe’s single tractor was working the soil, Escobar described the Chemehuevi’s agricultural plans. Behind him, Lake Havasu covered soil that could’ve been productive fields or pastureland. In front of him stretched sandy desert where the federal government said the tribe should harvest crops.

“This is what’s left,” he said of the tribe’s potential farmland that wasn’t submerged by the reservoir. “It’s sad.”

After the once-nomadic Chemehuevi fought for recognition of their tribe and their reservation, they partnered with the University of Southern California to develop a plan to farm 1,900 acres using the 11,340 acre-feet of water per year, about 3.7 billion gallons, that the government allotted them — at least on paper. But, in a good year, the Chemehuevi farm only 80 acres, growing melons for food, devil’s claw for basket weaving and cottonwoods for a riparian restoration project.

If it can’t transport more water to expand the farm, Escobar said, the tribe could accept leaving water in the river in exchange for compensation. “We want to be a benefit to the system,” he said, “but right now, they’re making it hard.” Many non-Indigenous people, and a few tribes, around the basin earn money limiting their water use, whether by fallowing farm fields or ripping out lawns.

Why shouldn’t all tribes be paid, Escobar asked.

The Gene Pumping Plant near Lake Havasu lifts water hundreds of feet to the Colorado River Aqueduct system, which delivers it to Los Angeles, San Diego and other cities. Southern California gets about 25% of its water from the Colorado River via the aqueduct. (Russel Albert Daniels for ProPublica and High Country News) How We Calculated the Monetary Value of Tribes’ Unused Water in the Colorado River Basin

Putting a dollar value on tribes’ water rights required establishing the amount that was quantified but unused. To do this, ProPublica and High Country News examined tribes’ settlements for the volume of their water rights. We found many of these documents in the University of New Mexico’s Native American Water Rights Settlement Project digital repository.

Once the amount was summed, we subtracted any water that had been developed on a reservation, leased to other users or injected into groundwater. We obtained these figures from Bureau of Reclamation and Central Arizona Project data, interviews with 20 tribes’ leadership and other sources. Research from the Ten Tribes Partnership and the Water & Tribes Initiative filled in data gaps.

To estimate the monetary value of this water, we consulted urban water districts, water sales consultants, tribes and researchers to find case studies where Colorado River Basin water had been leased, sold or otherwise marketed. This list of deals ranged from the Upper Basin System Conservation Pilot Program paying between $191 and $353 per acre-foot of water savings — adjusted for inflation — to Colorado-Big Thompson Project water shares selling for more than $90,000 per acre-foot this year. We gave extra weight to deals involving tribes, namely the Metropolitan Water District of Southern California paying the Fort Yuma Quechan Indian Tribe $185.56 per acre-foot via a forbearance and the federal government paying the Gila River Indian Community $400 per acre-foot for compensated conservation.

We then selected a discount rate — options ranged from 2.5% at Reclamation to 6% at the Texas Water Development Board — to convert an annual leasing or forbearance price into a one-time price to purchase that water.

Remaining conservative, we arrived at an annual price of $250 per acre-foot sold at a 5% discount rate — $5,000 to buy each acre-foot of tribes’ quantified-but-unused water rights.

by Mark Olalde and Umar Farooq, ProPublica, and Anna V. Smith, High Country News

Judge Rules Texas DPS Must Release Withheld Documents Related to the Uvalde School Shooting

1 year 9 months ago

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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.

A state district judge this week ordered the Texas Department of Public Safety to begin the process of releasing records related to the May 2022 Uvalde school shooting that the agency has shielded from the public for over a year.

The decision by 261st Civil District Court Judge Daniella DeSeta Lyttle marks a win for a coalition of news organizations, including ProPublica and The Texas Tribune, which sued the agency in August. The lawsuit sought the release of records that would bring more clarity to law enforcement’s failed response, including emails, video footage, call logs, emergency communications and forensic records.

“The public deserves a full accounting of what happened that day, and we’re glad that the judge has begun that process,” said Reid Pillifant, an associate attorney with Haynes Boone, a law firm that represents the news organizations. “We’re hopeful DPS won’t fight this decision, and we’ll begin the process of providing transparency.”

DPS did not directly answer the newsrooms’ questions, including whether it plans to appeal the court’s decision. In a statement emailed to ProPublica and the Tribune on Friday, a spokesperson for the agency said that the litigation is ongoing and that “the department will carefully consider its options when a Final Judgment is entered.”

Lyttle instructed DPS to submit a detailed list of redactions it wants to make to the public records by Aug. 31. The judge said that the court anticipated discussing the proposed redactions in September.

In its court filings, DPS has argued releasing records could interfere with an ongoing investigation into the shooting. The agency continued to defend this argument during a March hearing, which came months after the agency said its initial report was finished. DPS did not answer questions as to whether its investigation has been finalized. The agency has selectively disclosed some of the information during press conferences and in public hearings conducted by the state Legislature.

Uvalde District Attorney Christina Mitchell joined DPS in fighting the coalition’s lawsuit that month. She argued the disclosure could jeopardize any criminal charges she could seek in response to the agency’s investigation. Mitchell also claimed that “all of the families of the deceased children” had told her they supported withholding the records. But lawyers representing the majority of the families argued that was not true and joined the news organizations in support of the release.

“These Uvalde families fundamentally deserve the opportunity to gain the most complete factual picture possible of what happened to their children,” Brent Ryan Walker, one of the attorneys representing the families, wrote in March.

Mitchell did not respond to questions submitted by ProPublica and the Tribune on Friday.

The coalition has also sued the city and county of Uvalde for similarly withholding an array of records, including the layout of the school, which is set to be torn down. That lawsuit is ongoing.

Laura Lee Prather, a First Amendment lawyer also with Haynes Boone, said she hopes the lawsuit will, in the future, encourage agencies to produce information like 911 calls and body camera footage as quickly as possible.

“That’s how you promote trust in law enforcement,” Prather said. “It’s also how you prevent future tragedies.”

by Lexi Churchill, ProPublica and The Texas Tribune, and William Melhado, The Texas Tribune

HomeVestors Said It Had Kicked Out a Top Franchisee Who Broke the Law. New Evidence Suggests It Didn’t.

1 year 9 months ago

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A California real estate investor continued to be involved with one of the country’s most successful “We Buy Ugly Houses” franchises years after pleading guilty to felony charges for misleading two elderly homeowners who signed below-market sales contracts.

Despite assurances from HomeVestors of America that it had cut ties with Cory Evans “a number of years” ago, the former co-owner of Patriot Holdings LLC was still engaged in the business as recently as March, according to interviews with former business affiliates and text messages and emails obtained by ProPublica.

After ProPublica asked the company in April how it had responded to Evans’ conviction for attempted real estate theft, his involvement in a franchisee group chat appeared to cease. His last message to the group was on March 8.

Dana Pope, who until 2022 ran a Los Angeles-based HomeVestors franchise, said that during her time with the company, “Cory was very much always in the office, always active.” She said, “He was training me. He was in every conference we ever had.”

A HomeVestors corporate spokesperson said this week that the company has documentation showing Evans’ ownership interest in Patriot Holdings was terminated in 2021 and his name removed from the franchise agreement. “Based upon your reporting and questions, we have initiated a review into Cory Evans’ ongoing involvement with Patriot Holdings,” she said.

Neither Evans nor Patriot Holdings’ owners responded to a request for comment. Evans is not listed as a “manager or member” of Patriot Holdings in current California business filings.

Evans caught the attention of law enforcement in 2019, after he misled two elderly Southern California homeowners into signing sales contracts, according to court documents. The deals stemmed from what HomeVestors characterizes in its training and marketing materials as “Ugly Situations”: One homeowner had developed a hoarding problem and feared her house would be seized by the city for code violations; the other faced foreclosure. Both “were desperate for help since they did not want to lose their homes,” and Evans “took advantage of their individual fears for personal gain,” a Ventura County District Attorney’s Office investigator wrote in an arrest warrant declaration.

Evans was charged with four felonies in December 2019. Two charges were dropped in exchange for Evans’ guilty plea to two counts of attempted grand theft of real property in August 2020. When he was sentenced in September 2020, he was given probation and ordered to pay restitution and drop lawsuits he had filed against the two homeowners. He also was prohibited from participating in real estate transactions for about a year.

After the conviction, HomeVestors could have immediately revoked Patriot Holdings’ franchise, which was co-managed by Evans, his brothers and another partner, according to the terms of the agreement. But the parties instead struck a deal, according to HomeVestors’ corporate spokesperson. The franchise could continue operating provided Evans was removed as an owner.

In April, a HomeVestors representative told ProPublica that Evans “has had no affiliation with HomeVestors for a number of years.” And in a May blog post, HomeVestors stated it had “required that Cory Evans be removed from Patriot Holdings.”

Yet texts, emails and interviews indicate otherwise.

From June 2022 to March 2023, Evans was active in a group text chat where Southern California HomeVestors franchisees exchanged advice and updates on events. He sent frequent meeting reminders and added and removed participants from the text group. He orchestrated regular franchisee meetings with a business coach. Ahead of a regional meeting in August 2022, he described a plan to “roll out the most recent products available for Homevestors franchise.” And in January, he announced a training “on the basics of taking calls and running appointments.”

A recent ProPublica investigation found that HomeVestors, which bills itself as the largest cash homebuyer in the country, taught its franchise operators to target people in desperate situations. The reporting found some franchisees used deception and targeted the elderly, the infirm and people close to poverty. In response to the report, two U.S. senators and the head of the Consumer Financial Protection Bureau called for more scrutiny of HomeVestors and companies like it. HomeVestors CEO David Hicks announced this week that he would step down on Aug. 1.

(Our reporters discussed their findings and potential reforms with outside experts in a recent virtual discussion.)

In response to ProPublica’s initial findings, a corporate spokesperson said the company works to weed out bad actors and would ban tactics that can trap homeowners in sales contracts. The spokesperson pointed to Evans’ removal from Patriot Holdings as an example of the company enforcing its ethical standards.

HomeVestors knew as early as January 2020 that Evans had been charged, according to a letter one franchisee wrote to the company’s then-general counsel, Bonnie DePasse. “You took the position that the company is standing behind the Evans and running a counter PR Campaign to minimize the damage,” the franchisee wrote. (A HomeVestors spokesperson said DePasse no longer works for the company and that the lawyer had reiterated “our company values” when communicating with the franchisee.)

Pope said when she joined HomeVestors in May 2020, Evans taught her how to interact with prospective sellers. Emails she received show Evans working with the franchise after the district attorney subpoenaed records from HomeVestors’ corporate offices. Two weeks after Evans pleaded guilty to the charges, he emailed Pope, “We don’t want to lose out on new leads coming in.”

(Highlighted and redacted by ProPublica)

Evans also attended HomeVestors meetings throughout 2021, Pope said. She shared with ProPublica an invitation to a February 2021 meeting that listed Evans and his brother Cody as hosts. She said she was unaware of his legal troubles at the time, even though they were covered by local news outlets. “Had I known all that was going on, I would have probably thought twice about buying that franchise,” she said.

That year, Patriot Holdings was listed among HomeVestors’ “Rising Stars.” Internal HomeVestors records obtained by ProPublica during its investigation also listed Evans alongside his brothers on the company’s 2021 “top sales volume” award. The HomeVestors spokesperson said he was mistakenly included on the award.

In addition to receiving numerous accolades from HomeVestors, Patriot Holdings remains one of its most profitable franchises. Two of Evans’ brothers, Cody and Chris, are development agents who recruit and train new franchisees. Until recently, they were touted on HomeVestors’ website as some of the “Best Real Estate Investors Nationwide.”

Beyond revealing Evans’ continued involvement with HomeVestors, the texts offer an unfiltered view of franchisees’ gripes and challenges. Franchisees celebrated an FTC crackdown on the online homebuying company Opendoor, exchanged tips on evicting tenants who use Section 8 housing assistance and mocked HomeVestors’ advertising agency, Imaginuity, for what they said was a poor return on the monthly marketing fees they paid to the company. (Asked to respond to the criticism, Charlie Calise, the owner of Imaginuity, said: “We won’t speculate on a series of communications that we were not part of.”)

In April, the chat focused on HomeVestors leadership’s all-franchisee webinar, during which the company laid out a plan to “bury” ProPublica’s story. After that meeting, one franchisee called the investigation a “left-wing, lunatic article, stating that Homevestors rips off old people and steals equity.” Another wrote, “I always worry when the company lawyer sends out and invite.”

After Hicks, the CEO, alerted franchise owners to ProPublica’s forthcoming story, text messages show, he and Chief Operating Officer Larry Goodman planned an in-person visit to franchises in Southern California. HomeVestors said the goal of the visit was to “give a company-wide update” that included information about ProPublica’s yet-to-be published story. The spokesperson said Hicks “does not recall seeing Cory Evans at the meeting.”

The month before that meeting — and more than two years after he was convicted — Evans went silent on the group chat. His Homevestors.com email address, which appeared to still be functioning in early April, stopped accepting messages in June.

Mollie Simon contributed research.

by Anjeanette Damon and Byard Duncan

Blocked Artery in Your Leg? Here’s What You Should Know.

1 year 9 months ago

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Millions of Americans have peripheral artery disease, a disorder primarily caused by fatty deposits that can narrow arteries and block blood flow to the legs. Often, the first symptom they feel is leg pain. Experts say that most treatments are safe, but some have expressed a growing sense of alarm that doctors may be doing procedures that patients don’t need, exposing them to unnecessary risks.

ProPublica looked into artery procedures and found that some doctors are making millions of dollars doing a questionable number of treatments. Government insurers pay well for vascular procedures that are done outside of hospitals, and doctors can bill tens of thousands of dollars for treatments done in a single office visit.

One doctor in Maryland made millions of dollars from the federal government for performing thousands of vascular procedures. A state medical board investigation found that his inappropriate treatments put patients at risk of serious harm. One man had to have his leg amputated after invasive treatments for mild pain, according to filings in a settled lawsuit. A grandmother bled out and died shortly after the same doctor cut into her, according to another ongoing lawsuit. The doctor denied the allegations in legal filings, but declined to be interviewed and did not respond to emailed questions.

Some doctors worry about the overuse of procedures and think there should be more oversight. They compare outpatient vascular care to the Wild West and say there are not enough protections to stop patients from getting unnecessary treatments.

We made this guide to help patients ask the right questions and get good health care. This article is not intended as medical advice, so it’s important to speak with your own doctor and use other resources before you make any decisions.

What Is Peripheral Artery Disease?

Peripheral artery disease occurs when plaque or other deposits build up on the walls of blood vessels, often in the legs, and restrict blood flow. Smoking, high cholesterol and diabetes can increase your risk of developing the condition. Around 6.5 million Americans over 40 have peripheral artery disease, which usually affects older people.

What are the symptoms of peripheral artery disease?

People with this chronic disease can live a long time, especially if they exercise, stop smoking and eat healthy food. Up to half of patients don’t have any symptoms, but others feel pain when they walk or exercise, a condition known as claudication. This happens because their leg muscles may not be receiving enough oxygen.

At first, the pain might not be severe, but it can worsen over time and begin to occur even at rest. Some people might also feel coldness or numbness in their legs or feet, see changes in the color of their skin or have a weakened leg pulse. A fraction of patients may eventually develop critical limb ischemia, which can result in an amputation, but this is less likely if the disease is diagnosed early and treated appropriately. Experts told ProPublica that only about 5% of patients who are diagnosed early on in the disease will require an amputation within five years.

“If you go to the doctor and you’re having only walking problems and they tell you that you’re going to lose your leg, they are wrong,” said Dr. Michael Dalsing, a vascular surgeon at Indiana University Health Physicians and a former president of the Society for Vascular Surgery.

How Is Peripheral Artery Disease Diagnosed and Treated?

Doctors can administer noninvasive tests like ultrasounds or blood pressure measurements to see how blocked your blood vessels are. They may also suggest a treadmill exercise test to determine how severe symptoms are.

Peripheral artery disease can’t be cured, but it can be managed with routine monitoring and lifestyle changes.

For mild cases, like patients with just claudication, best practices recommend that doctors start with noninvasive treatments, which can slow or even reverse symptoms. Plans may include regular exercise, changes to your diet and quitting smoking. They might also involve medications to lower your cholesterol, control your blood pressure, prevent the buildup of plaque in your vessels, or reduce leg pain.

If the disease worsens or symptoms are disabling or limb-threatening, doctors may suggest more aggressive treatments that unblock blood vessels. Endovascular procedures are minimally invasive treatments, where a doctor makes a small incision near the hip to access the vessels and threads in flexible catheter tubes to treat blockages. Typical treatments may include balloon angioplasty, the placement of stents or the removal of plaque with a bladed catheter, also known as an atherectomy. These treatments have a relatively short recovery time and can be done in outpatient centers. Alternatively, a doctor may recommend bypass surgery, where blood flow is rerouted around blockages in the vessels.

Angioplasty: A compact balloon is inserted into a blood vessel and inflated to flatten plaque against its walls.

Stent: A metal mesh tube is implanted into a narrowed blood vessel to hold open its walls.

Atherectomy: A catheter, often capped with a blade or laser, is inserted into a blood vessel and removes plaque off its walls.

(Illustrations by Now Medical Studios, special to ProPublica)

All of these more aggressive treatments have risks of complications, like clots, bleeding or even amputation, so your doctor should talk to you about what could happen.

When Should You Ask Questions About a Vascular Treatment?

While most doctors do their best to help their patients, ProPublica’s reporting has found that some doctors suggest invasive treatments that may be too aggressive for mild symptoms. This can increase the risks of complications and may worsen peripheral artery disease.

“You want to start with the lowest-risk thing because claudication rarely leads to an amputation,” said Dr. Peter Lawrence, the former chief of vascular and endovascular surgery at the University of California, Los Angeles.

Patients should feel comfortable asking questions and learning about their treatment plan, especially before signing off on invasive interventions. ProPublica spoke with more than a dozen vascular physicians to understand when patients should seek more information.

When treatment decisions are not explained well.

“The physician should be able to explain the importance and the significance of what they found to justify what they’re planning to order,” said Dr. Gary Lemmon, a vascular surgeon who serves on the appropriateness committee for the Society for Vascular Surgery.

Navigating the health care system to figure out the best treatments can be confusing. Doctors should take time to explain what tests reveal, what disease progression might look like and how it should be treated. Doctors should be aware of what professional practice guidelines and criteria recommend and be able to clearly explain the options to patients. Setting realistic expectations is important. Doctors should be able to clearly describe how any procedure will impact your life and to what extent you can expect your symptoms to improve.

Decisions about your treatment plan should not be made for you, the experts said. They should be made with you.

When treatment decisions are made too quickly.

“A quality marker that someone can sniff right away is if the decision is made quickly and not a lot of time is spent with the patient,” said Dr. Michael Conte, professor and chief of vascular and endovascular surgery at the University of California, San Francisco. “I would be wary of that sort of interaction.”

Patients should be cautious if doctors immediately suggest invasive procedures instead of first trying exercise, diet changes and medicine.

“If a provider recommends that they be treated without a trial of exercise therapy and use of correct medications, and they recommend treatment before six months of conservative management, that should be a red flag,” said Lemmon.

Once patients start receiving invasive interventions, they might need more procedures; with each treatment, there’s a risk of something going wrong.

“One procedure leads to another procedure to another procedure,” said Dr. Nicholas Osborne, an associate professor of vascular surgery at the University of Michigan. “Two years later, they’ve had failed bypasses, they have dead toes, they’re looking at a major amputation or maybe a Hail Mary kind of salvage bypass to get them out of the trouble.”

Peripheral artery disease progresses differently for each person, so doctors need to assess each case carefully before recommending any procedures. “In some patients, that clock ticks really slowly and it takes a long time for them to get from claudication to ever needing anything,” said Dr. Joseph Mills, the current president of the Society for Vascular Surgery and chief of vascular surgery and endovascular therapy at Baylor College of Medicine. “And for others, it’s a more rapidly ticking clock. But when you start to do interventions, whether it’s a bypass or a stent, the clock speeds up.”

When scare tactics are used to push you into a procedure.

Patients with mild vascular disease told ProPublica that they agreed to invasive procedures because doctors told them they would lose their leg without an intervention.

“I see a lot of patients in clinic that come for a second opinion,” said Dr. Caitlin Hicks, an associate professor of surgery at Johns Hopkins University School of Medicine. “And they’ll have been told by some surgeon, ‘You have a narrowing in your blood vessel, you’re going to lose your leg unless we do something.’ And that’s the story that’s fed to many, many patients.”

Without a full picture of the disease, patients may make less informed choices. Doctors should communicate clearly and explain the risks and benefits of any procedure. Otherwise, patients can get scared and seek a procedure they may not need.

How to Find a Doctor You Trust

Finding a doctor you trust can be tricky. Specialists like vascular doctors are often found through primary care physicians, but some also advertise directly to patients in Facebook and Google ads, on billboards and at community events like church or senior center meetings.

“The vast majority of physicians treating vascular disease practice ethically, but [patients] can’t assume that,” said Dr. Kim Hodgson, a former president of the Society for Vascular Surgery. “They can’t just assume that the physician with the flashy advertising and the certificates on the wall is qualified or competent.”

It’s important to make sure that your health is the doctor’s top priority before agreeing to any procedures. Here are some tips on how to find a trustworthy doctor:

  • Check for board certification. There are three main types of doctors that treat peripheral artery disease: vascular surgeons and specialists, interventional radiologists, and cardiologists. Look for doctors who have passed a specialty test and are certified by a board. You can check whether your doctor has board certification through state medical board databases.
  • Look for membership in medical societies or associations. These organizations are committed to upholding standards of care.
  • Research disciplinary records. Check state medical board databases to see whether doctors have gotten into trouble for poor patient care. Some boards also provide information on malpractice lawsuits, but in most states, the best way to access information about those cases is through court records.
  • Consider a second opinion. If you have concerns, make an appointment with another doctor.
  • Look for involvement in programs committed to transparency and quality patient care. Some medical societies, like the Society for Vascular Surgery, have created initiatives to uphold best practices. The Vascular Quality Initiative collects and analyzes procedure data in a registry. Earlier this year, the society also launched the Vascular Verification Program with the American College of Surgeons to help hospitals improve patient outcomes. “We’re trying to make things more transparent and safe,” said Dalsing, a former president of the society. “As soon as you get things into the light, I think things start to change, and for the better when needed.”
What Questions Should You Ask Your Vascular Doctor?

“Patients have to ask questions, but then the problem is patients don’t even know what questions to ask,” said Dr. Karen Woo, a vascular surgeon and professor at the David Geffen School of Medicine at UCLA. “Most clinicians don’t really go in depth into that risk-benefit conversation and what the consequences are of having an invasive procedure.”

When you receive a new diagnosis from your doctor, it can be overwhelming and hard to know what to ask. But you need to understand your options to make sure you get the best care, so we asked doctors what you should be asking them.

Some recommended questions:

  • Could anything else be causing my symptoms?
  • What are the different ways to treat my illness?
  • Can I make any lifestyle changes before undergoing invasive treatments?
  • What are the risks and side effects of the treatment?
  • Is there a simpler, safer way to treat my illness?
  • What is a good outcome? What is a poor outcome?
  • What happens if I don’t receive any treatment?
  • If the procedure is not being done in a hospital, can the doctor take me to a hospital if complications arise, and do they have privileges at a nearby hospital?
  • Will the procedure require any follow-up procedures?

Do You Have Experience With Peripheral Artery Disease? Have You Had a Procedure on Your Leg? Tell Us About It.

by Annie Waldman

How Parents Outraged by Library Books, Diversity Initiatives and Sex Ed Transformed One New Jersey School Board

1 year 9 months ago

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up for Dispatches, a newsletter that spotlights wrongdoing around the country, to receive our stories in your inbox every week.

This story is part of a series that explores how school board meetings across the country are fomenting conflicts and controversies that have led to violence and arrests. Are you interested in a virtual event on this topic? Let us know here.

The woman at the podium was 14 seconds into reading a passage from a library book by a nonbinary author — an attempt to prove that the county board of education “promotes obscene material and porn,” as she’d described it — when school board president Catherine Kazan cut her off.

“I don’t think that’s appropriate,” Kazan said. “There’s young people in the audience.”

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“Of course it’s appropriate!” the woman, Pamela Macek, countered, raising her voice to be heard over the cacophony of cheers from the people seated behind her in the auditorium.

“Ma’am, you can verbalize your complaint without reading the book,” Kazan said.

“No, no! Oh no!” Macek bellowed, shaking her head from side to side. “You ain’t shutting me up.”

She resumed reading from the book, “Gender Queer: A Memoir,” eking out about a dozen more words before her mic was cut. But still she kept at it.

“If this continues, we will clear the room,” Kazan warned, holding up her palm. Glancing up in search of help, Kazan said, “Officer, please?”

But Macek continued her complaint about books in the high school library. “There are teenagers!” she yelled, loud and clear in the absence of a microphone. “With strap-ons! Giving blow jobs!”

Kazan banged her gavel three times. “Officer! Officer! I could use a little help here. The woman refuses to leave the podium, and she’s being disruptive.”

Macek, a substitute teacher who later claimed in a lawsuit that her opposition to mask mandates had led to her firing weeks before the meeting (she received a $22,500 settlement for emotional distress), was part of a chorus of attendees angered by what they perceived as dangers to students in Wayne Township, New Jersey. One of the eight people who’d addressed the board before her at the October 2021 meeting was concerned that the district’s COVID-19 precautions were overkill — or “hygiene theater” — as evidenced by the use of plexiglass shields in classrooms. Others had bemoaned the mention of abortion in the state’s sex-education curriculum and the “borderline pedophilic books” in the library.

“The idea of blurring lines between genders is child abuse,” one of the parents had said, referencing the availability of a book about a transgender child, “When Kayla Was Kyle.”

“You emasculate little boys and who’s going to don the next police uniform?” the man had asked. “Who’s going to don the next military uniform and stand in the face of evil?”

But it was Kazan telling Macek that it was inappropriate to read from “Gender Queer” that got the crowd really worked up. The banging of the gavel did little to quiet Macek or the other attendees.

“Make a motion,” Kazan implored the board, after which one of its members, Michael Bubba, moved to close the meeting. Kazan looked at the board members seated to her left and right. No one immediately seconded the motion.

One of the police officers providing security at the meeting started pacing in front of the dais. The crowd became louder and angrier.

Macek was still yelling from the podium when a parent approached her and said, “Give it to me, I’ll read the fucking part,” briefly taking some papers from her hand before she took them back.

Moments later — just as one of the board members finally responded to Kazan’s entreaties, saying, “I second the motion, madam president” — the parent, Mark Faber, made a beeline for Kazan, who sat perched on the dais. Pointing his finger toward her, Faber yelled, “This is our outlet as parents to express our dissatisfaction with what’s going on.

“End the meeting and it’s going to happen in front of your fucking house.”

As three officers directed him back to his seat, Kazan leaned into her microphone. “I take that as a threat,” she said.

Angry Parent Confronts School Board President After Catherine Kazan tried to bring a school board meeting to a close, Mark Faber, a local parent, tells her that if she ends the meeting, “It’s going to happen in front of your fucking house.” (Videos obtained from Jon “Ferris” Meredith/TAPinto Wayne and the Wayne Township Public Schools YouTube page)

Watch video ➜

With the man back in the audience, two board members cast votes in favor of ending the meeting.

“Board members should not be treated like this and have somebody threaten them right in front of the officers, for Christ’s sake,” Bubba said. “Close this meeting.”

But the rest of the board voted no.

“OK, the meeting continues. I’ll abstain,” Kazan said, to which the crowd cheered.

Kazan would later say that as the meeting continued, she noticed Faber was still sitting in the auditorium. She recalled flagging down one of the school police officers and saying, “Excuse me, why is he still here? He needs to go home. This man just threatened me, threatened the board. And I don’t feel comfortable with him remaining here.”

Instead, police only briefly took Faber out of the auditorium. He returned to make a public comment a short time later. “I’d like to start off by apologizing to everyone up on the board, to all the people who are here, for losing my temper,” Faber said, hands clasped as he leaned over the podium. “It’s very uncharacteristic for me to get that frustrated, but I’m sure as many of you can understand, this is a very frustrating time to be a parent.”

At the end of the meeting, several board members reassured the parents that they were being respected and heard. Then it was Kazan’s turn.

“I was considering saying quite a bit, but now I have to leave this meeting and drive to the Wayne PD and press charges against you, Mr. Faber, for threatening me,” she said, pointing her finger into the audience.

She slammed her mic down and ended the meeting. As she gathered her things, she said, “Officer, I’d like an escort to my car.” That night, she gave a statement to police, prompting what would be a short-lived investigation.

Catherine Kazan, a New Jersey school board member, told police that she felt a parent threatened her at a 2021 meeting. (José A. Alvarado Jr., special to ProPublica)

The confrontation in Wayne is one of dozens of incidents at school board meetings across the country that ProPublica has examined. The blowups reflect the pervasive challenges that school districts and police departments face in figuring out how to handle masses of aggrieved citizens — and what to do when the clashes lead to chaos. Nearly 60 of those cases, which occurred over an 18-month period ending in late 2022, ended with the arrests of attendees. But in Wayne, the school board president claimed that authorities did little to act on what she perceived as a threat.

Faber told ProPublica he does not believe that what he said to Kazan amounted to a threat. “Words are not violence. Violence is violence,” he said. “But if you try to silence people from talking because they don’t agree with you, that’s wrong. You shouldn’t stop other people from making their points.”

Macek said in an interview that it was never her intent to get books banned; rather, she had hoped to make the point that books like “Gender Queer” should be restricted to counselors’ offices and that parents should have to approve a student reading it. In response to ProPublica’s questions about the meeting, she wrote, “If a minor child cannot go into a movie theater to watch an R-rated movie without being accompanied by a parent or guardian, then how can they be permitted and even encouraged to view such blatantly sexual material without the supervision of a parent or guardian?”

Parents who cheered for Macek and Faber during the meeting would soon find more allies on the school board. A little more than a year later, the majority of the officials who’d sat on the dais with Kazan would be gone, replaced with candidates favored by frustrated parents who hoped to gain more control over Wayne’s schools.

Three days after the incident, Faber visited the police department to check on the case himself. He expressed concern that he and his family could be targeted because his name and the name of his street had been reported in local media. (His address was not published, police noted in an incident report.)

To ease Faber’s worries, Officer Robert Franciose directed officers to check on Faber’s property during the current and following shifts. Faber told ProPublica that neither he nor his family were actually confronted in the aftermath of the school board meeting.

The day after Faber’s visit, a sergeant followed up with Kazan, letting her know the case against Faber was closed. The sergeant wrote in an update to the incident report: “After reviewing the above information, I have concluded that Mr. Faber’s statement and actions at the Board of Education meeting did not constitute a terroristic threat. As a result, the probable cause standard was not met and criminal charges will not be filed.”

The sergeant told Kazan she could file a complaint in municipal court on her own.

But Kazan remained a target of parents’ ire even after the school board meeting. The vitriol just migrated to social media. Shortly after the incident, one man referenced Faber’s remarks to Kazan when he posted on Facebook that “by stating that we are going to protest outside a home, Kazan should feel lucky that’s all this group wants to do.

“However it’s voiced, whether we say fuck, shit, asshole, bitch, whatever, all of which we have all heard and used, all we wants is our parental rights to be respected and upheld,” the post continued. “And sometimes people Need to feel alittle uncomfortable in their own skin, maybe sleep with one eye open, because let me tell you, the thought of this going on in our schools makes us parents feel real uncomfortable.”

After the sergeant told her that the case had been closed, Kazan emailed Wayne Township’s chief of police, attaching a screenshot of the man’s comments. She urged the department to reconsider, writing, “I do not feel safe and I will be filing those charges tomorrow. I hope nothing happens to me at a future meeting. Not taking action at this time will only embolden the crowd for the next meeting. I don’t even know what else to say about that other than I am truly disappointed. What will it take to arrest someone for intimidating a public official?”

Wayne Police Chief Jack McNiff did not respond to ProPublica’s questions about the incident, the investigation or Kazan’s email. Kazan said she discussed with her fellow board members the option of pursuing charges and that she felt most of them “wanted to just let it go.”

But one board member encouraged her to move forward with charges: Bubba. He and Kazan had butted heads on a number of issues over the past decade. Their politics were often at odds — Kazan describes herself as a social liberal, while Bubba calls himself a moderate Republican. But they both longed for the days of compromise on what was supposed to be a nonpartisan board.

“I thought she should have pursued it,” Bubba said. “To me, that was as bad as it could be. We didn’t sign up for this.”

Kazan said that after she spoke with the board, she called Faber to see if they could settle things themselves. According to Kazan, the discussion ended in a place where she felt she could let her family know that they did not need to worry about her safety. “I was content that the man wasn’t looking to blow my brains out. That’s all I cared about,” Kazan said. “You want to yell at me and curse at me, I can take that. I grew up in New Jersey.”

Faber recalls that when Kazan reminded him that she could pursue the charges, he responded, “If that’s what you think is the right thing to do, go for it.” Ultimately, she decided not to.

Faber said of Kazan, “She called me out publicly and said she was going to the police to press charges in a very angry tone herself. So it wasn’t like her reaction to the situation was one of fear. She was just lashing out and threatening me with police charges.”

The month after the confrontation, parents who had rallied behind Macek and Faber at the school board meeting scored a victory at the polls.

Three conservative candidates won seats on the nine-member Wayne Township school board. The candidates had been endorsed by the 1776 Project, a super PAC supporting candidates who want to reform public education “by promoting patriotism and pride in American history.”

By then, Bubba said, he began thinking it was time to step aside after 10 years on the board. He’d been bothered by the tenor of the school board campaigns, shocked by the Faber incident and alarmed by the community’s growing animosity toward the board.

“Nobody wants to compromise. Everybody wants to win,” he said. “I don’t want to sit there and fight every meeting.”

In January 2022, after the new board members were sworn in, the board replaced Kazan as president with another veteran board member.

In that year’s school board election, with Bubba retiring, the self-described “parental rights” contingency gained a majority with the election of two parents representing a group called “Children First!” Similar slates of conservative candidates had been put forward nationwide, aiming to change the political and ideological makeup of school boards.

Faber — who describes himself as politically independent — said he was relieved when he saw those 2022 election results. He said that if the board hadn’t changed, he believed there would be trans-friendly bathrooms and drag queen story hours at school.

At the March 2023 school board meeting, one of the newest members, Ryan Battershill, proposed taking a second look at the district’s mission statement. The statement had been crafted by parents, teachers and counselors in 2020 as a part of a diversity, equity and inclusion initiative soon to be mandated by the state in all public schools. Wayne Schools’ statement vowed to provide “culturally responsive, critically engaging curriculum for students of all backgrounds.”

Battershill suggested creating an alternate version “that really the community gets behind.”

During the board’s work session the following month, Kazan was the only member who challenged the need for a new statement. “I can’t find a problem with it,” she said of the existing document. “I’d really like to know, why are we reconsidering it?”

“There have been a number of times that people have raised the mission statement, especially the values that used to be in there,” Battershill said.

Contacted by ProPublica, Battershill declined to explain what changes he was seeking. As of late June, no board member has submitted a plan to move forward with revising the mission statement.

Kazan noted that the district’s new diversity, equity and inclusion initiatives “got some people antsy” that the policies could open the door to the schools teaching about race and history in a way that would “make white kids feel bad about themselves.”

“Well, that was never the goal,” she said. “We have a diverse community, and they need to be reflected.”

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by Nicole Carr

Illinois Officials Will Try a Second Time to Make Good on Pledge to Reform Student Ticketing

1 year 9 months ago

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up for Dispatches, a newsletter that spotlights wrongdoing around the country, to receive our stories in your inbox every week. This story was co-published with the Chicago Tribune.

Top Illinois officials agreed last year that police shouldn’t ticket students for minor misbehavior at school and pledged to make sure it didn’t happen anywhere in the state. But a bill to end the widespread practice fizzled this spring because of disagreement over whether it would accomplish its goal and confusion about whether police would still be able to respond to crime on campus.

Now, legislators and activists are regrouping with a goal of rewriting the bill and passing it in the next legislative session. They say they are committed to changing state law because not all school districts complied when the Illinois State Board of Education superintendent implored them to stop working with police to issue municipal citations for noncriminal matters — tickets that can lead to fines of up to $750.

The push for change followed publication of “The Price Kids Pay,” a 2022 investigation by ProPublica and the Chicago Tribune that revealed how school-based ticketing was forcing families into a quasi-judicial system with few protections that sometimes landed them in debt. A state law already bans school officials from fining students directly, but administrators instead have been cooperating with police, who issue citations for violating local ordinances. The proposed legislation aimed to shut off that option.

In addition to the former state school superintendent’s strong stance, Gov. J.B. Pritzker said last year that he wanted to “make sure that this doesn’t happen anywhere in the state.” His spokesperson said Monday that his position has not changed. Current state Superintendent Tony Sanders also said he backs legislation to prevent ticketing. That support gives hope to the legislators pushing for change.

“We are going to get it done. We are in the process now of really fine-tuning it,” said state Rep. La Shawn Ford, a Democrat from Chicago and the bill’s chief sponsor. The bill passed the House education committee in March, but it was not called for a vote in the full chamber before the legislative session ended in late May.

Ford’s bill would have made it illegal for schools to involve the police in order to fine students for violating local ordinances — such as by vaping or fighting — when that behavior could be addressed through the school’s disciplinary process instead. School officials could still call law enforcement for criminal matters, and schools could still seek restitution from students for lost, stolen or damaged property. But some legislators voiced concerns that the bill might unintentionally limit when police can get involved in more serious incidents.

“There were some issues that came up that needed some clarity, and we felt it was better to continue to work on the language so we could get the best bill possible without unintended consequences,” Ford said.

Ford said he remains committed to making sure that families aren’t punished financially for student misbehavior in schools. “Anything that drives poor people further into poverty shouldn’t be a part of our school environment,” he said. “If a student has to choose between paying a fine and eating breakfast, that is a problem.”

Some districts stopped or cut back on referring students to police for minor disciplinary matters in the wake of “The Price Kids Pay,” but without a law preventing the tactic, others have not. Students across the state continue to get costly tickets for noncriminal infractions including having vape pens, fighting at school and engaging in other adolescent behavior that some say would be better handled by school officials, not the police.

Reporters also found that students in some towns, including Manteno, McHenry and Palatine, are still appearing before hearing officers to receive punishments from their municipalities for their school-based behavior. The consequences, including fines, often were levied in addition to school discipline the students had already received.

Last week, at the Plano Police Department about 60 miles west of Chicago, three teenage boys appeared before a hearing officer with $100 tickets they had received for a fight during a basketball game in gym class at Plano High School. The city’s school resource officer had issued the tickets after watching a video of the fight, according to a police report read at the hearing.

Two of the boys were accompanied by their mothers as they were sworn in and explained that they had acted in self-defense after another student started the fight.

The parents were upset about the tickets. One mother said in an interview that she knew the state superintendent had asked schools to stop working with police to ticket students, and her son had already been suspended for 10 days, which was punishment enough in her eyes.

“Everything is monetary now. It is like, ‘You do this wrong, you give us money.’ It isn’t teaching anything,” she said, adding that the school has denied her requests for a recording of the fight. “These little towns, even bigger towns, feel like they are untouchable.”

“I guarantee you that 90% of people have no clue that it isn’t supposed to be happening.”

A Plano High School student was ticketed for fighting in gym class after an officer watched video of the fight. (Redacted by ProPublica.)

The two students who said they had acted in self-defense were found not liable and did not have to pay fines. The third student, who recently graduated, pleaded liable and handed over $100 cash before leaving the police station. Their cases were the only three heard that night at the city’s “adjudication courtroom” in the Police Department basement.

Plano police Officer Alejandro Lopez, who issued the citations and supports ticketing as a consequence for students, said Plano High School students have received 26 tickets during the past two school years, primarily for disorderly conduct ($100 fine) and possession of cannabis ($250 fine). “It teaches them a lesson to not do it anymore,” Lopez said in an interview.

Lopez said he typically learns about the behavior from a dean or other administrator and then decides whether to issue a ticket.

That’s the process that the stalled legislation would have addressed by amending the state’s school code to make it illegal for school personnel to involve police for the purpose of issuing students citations for incidents that can be addressed through a school’s disciplinary process.

But legislators and advocates were concerned that interrupting that police referral process might not always prevent students from getting municipal tickets.

There also was apprehension among school officials that they could be accused of violating the school code if a police officer chose to ticket a student, even if that’s not what the school intended. The Illinois Association of Chiefs of Police opposed the proposed legislation.

Those in favor of ending school-based ticketing said they’re also exploring whether, rather than targeting policy change at the schools, a bill should instead focus on the municipalities because they’re the ones who oversee police officers in schools and determine penalties for ordinance violations.

“The real goal is to eliminate monetary penalties, municipal tickets for noncriminal school-based behaviors,” said Aimee Galvin, the government affairs director for Stand for Children Illinois, which helped draft the legislation, along with the Debt Free Justice Illinois Coalition. She said advocates will be meeting this summer and fall to explore new legislation that would be introduced next year.

“We are very upset that this is still happening. Our hope is the practice has decreased given the attention and ISBE’s direction, but we would love to see some legislation to right this wrong.”

Rep. Michelle Mussman, a Democrat from the Chicago suburb of Schaumburg who serves as chair of a House education committee, said lawmakers previously banned fining students at school because they thought that monetary punishments weren’t appropriate.

Legislators, she said, seem willing to close the loophole that emerged on fines and ticketing. “The problem is we haven’t figured out how,” Mussman said.

The legislature did pass a bill that, if signed by the governor, will eliminate most fines and fees in juvenile court. Young people who commit juvenile offenses would then be protected from monetary penalties, but that protection wouldn’t apply to those found to have violated municipal laws.

For their investigation, ProPublica and the Tribune documented about 12,000 tickets written to students over three school years and also found that, in places where information was available on the race of ticketed students, Black students were twice as likely to be ticketed as their white peers. (Use our interactive database to look up how many and what kinds of tickets have been issued in an Illinois public school or district.)

In Chicago’s northwest suburbs, District 211 and Palatine are the subject of an ongoing civil rights investigation launched by the Illinois attorney general’s office after “The Price Kids Pay” was published.

School district officials in Plano, Palatine, McHenry and Manteno did not respond to requests for comment for this story.

by Jodi S. Cohen and Jennifer Smith Richards

“We Buy Ugly Houses” CEO Steps Down Following ProPublica Investigation

1 year 9 months ago

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up for Dispatches, a newsletter that spotlights wrongdoing around the country, to receive our stories in your inbox every week.

The president and CEO of HomeVestors of America announced Tuesday that he will step down this summer, after an investigation by ProPublica found some of the company’s homebuying franchises had deceived sellers and targeted people in vulnerable situations.

In a letter announcing his departure to owners of “We Buy Ugly Houses” franchises, David Hicks said retirement “has been on the horizon for some time,” but he added that “recent press” coverage had taken a “personal toll on me.”

Hicks will be replaced by Larry Goodman, the company’s chief operating officer, on Aug. 1.

“I know Larry will continue the tradition of ensuring that HomeVestors conducts all business with honor and excellence in giving homeowners an option for difficult-to-sell properties,” Hicks wrote.

“He is ready and it is time for me to spend more time focusing on my family and my health,” he added.

Hicks did not respond to a request for comment, and the HomeVestors spokesperson did not immediately respond to follow-up questions after sharing Hicks’ letter with ProPublica.

Hicks, who became co-president in 2009 and president in 2017, oversaw a period of tremendous growth at the company, which bills itself as the largest cash homebuyer in the country. The number of franchisees has increased from about 165 in 2009 to nearly 1,150. The company was also bought and sold multiple times during Hicks’ tenure. It is now owned by Bayview Asset Management, which acquired HomeVestors in 2022.

In previous interviews and in his retirement letter, Hicks has said he believes HomeVestors helps communities by purchasing difficult-to-sell properties and returning them to the market in an improved condition. “As CEO of HomeVestors, I have witnessed firsthand how we have been able to make a direct impact on people and communities in which we operate. It is this feeling of helping others that has kept me in this business for nearly 20 years,” he said in his letter.

ProPublica’s reporting, however, found HomeVestors focused its advertising campaigns on people in vulnerable situations and taught franchise owners how to “find the pain” of a homeowner in order to buy houses for rock-bottom prices. In some cases, franchisees targeted elderly homeowners who did not understand the contracts they signed. Others were in such dire financial situations that they became homeless after selling to a HomeVestors franchise.

In a 2020 interview, Hicks said houses targeted by his company smell so bad flippers want to take a shower after visiting them.

“That cat piss smell, you know what that smell is?” he said with a chuckle. “That’s money.”

In his retirement letter, Hicks said ProPublica’s reporting “mischaracterized our business,” drew “hurtful conclusions” and reflected a “miniscule portion of our transactions.”

But in a Zoom meeting before the story was published, he told franchise owners he also believed ProPublica’s investigation would “make us a better company.” He added that HomeVestors would change some practices in response to the reporting, while laying out a plan to “bury” the story.

A HomeVestors’ spokesperson said ProPublica’s investigation referenced a fraction of the company’s transactions. She touted an internally calculated 96% customer satisfaction rating. She also said that predatory behavior identified by ProPublica isn’t taught or tolerated and that “lying is against our code of ethics and our culture.”

Since the story’s publication, two U.S. senators and the head of the Consumer Financial Protection Bureau have called for more scrutiny of HomeVestors and companies like it. The HomeVestors spokesperson said the company is “committed to ensuring a fair and equitable homeowner customer experience” and welcomes policies that protect homeowners.

“Generally, when a CEO steps down, it opens the company up to self-reflection,” Evan Goldman, partner and co-chair of the franchise law group at the law firm Greenspoon Marder, said in an email. “Here, hopefully, the necessary parties will see the harm that HV has inflicted upon its franchisees and seek to right the ship for the future. More so, it’s my hope that the future generation of franchisees are in a better position — financially and otherwise — as a result of this change of leadership.”

Help ProPublica Investigate “We Buy Houses” Practices

by Anjeanette Damon and Byard Duncan

How Often Do Health Insurers Say No to Patients? No One Knows.

1 year 9 months ago

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It’s one of the most crucial questions people have when deciding which health plan to choose: If my doctor orders a test or treatment, will my insurer refuse to pay for it?

After all, an insurance company that routinely rejects recommended care could damage both your health and your finances. The question becomes ever more pressing as many working Americans see their premiums rise as their benefits shrink.

Yet, how often insurance companies say no is a closely held secret. There’s nowhere that a consumer or an employer can go to look up all insurers’ denial rates — let alone whether a particular company is likely to decline to pay for procedures or drugs that its plans appear to cover.

The lack of transparency is especially galling because state and federal regulators have the power to fix it, but haven’t.

ProPublica, in collaboration with The Capitol Forum, has been examining the hidden world of insurance denials. A previous story detailed how one of the nation’s largest insurers flagged expensive claims for special scrutiny; a second story showed how a different top insurer used a computer program to bulk-deny claims for some common procedures with little or no review.

The findings revealed how little consumers know about the way their claims are reviewed — and denied — by the insurers they pay to cover their medical costs.

When ProPublica set out to find information on insurers’ denial rates, we hit a confounding series of roadblocks.

In 2010, federal regulators were granted expansive authority through the Affordable Care Act to require that insurers provide information on their denials. This data could have meant a sea change in transparency for consumers. But more than a decade later, the federal government has collected only a fraction of what it’s entitled to. And what information it has released, experts say, is so crude, inconsistent and confusing that it’s essentially meaningless.

The national group for state insurance commissioners gathers a more detailed, reliable trove of information. Yet, even though commissioners’ primary duty is to protect consumers, they withhold nearly all of these details from the public. ProPublica requested the data from every state’s insurance department, but none provided it.

Two states collect their own information on denials and make it public, but their data covers only a tiny subset of health plans serving a small number of people.

The minuscule amount of details available about denials robs consumers of a vital tool for comparing health plans.

“This is life and death for people: If your insurance won’t cover the care you need, you could die,” said Karen Pollitz, a senior fellow at KFF (formerly known as the Kaiser Family Foundation) who has written repeatedly about the issue. “It’s all knowable. It’s known to the insurers, but it is not known to us.”

The main trade groups for health insurance companies, AHIP (formerly known as America’s Health Insurance Plans) and the Blue Cross Blue Shield Association, say the industry supports transparency and complies with government disclosure requirements. Yet the groups have often argued against expanding this reporting, saying the burdens it would impose on insurance companies would outweigh the benefits for consumers.

“Denial rates are not directly comparable from one health plan to another and could lead consumers to make inaccurate conclusions on the robustness of the health plan,” Kelly Parsons, director of media relations for the Blue Cross Blue Shield Association, said in an email.

The trade groups stress that a substantial majority of patient claims are approved and that there can be good reasons — including errors and incomplete information from doctors — for some to be denied.

“More abstract data about percentages of claims that are approved or denied have no context and are not a reliable indicator of quality — it doesn’t address why a claim was or was not approved, what happened after the claim was not approved the first time, or how a patient or their doctor can help ensure a claim will be approved,” AHIP spokesperson Kristine Grow said in a written response to questions from ProPublica. “Americans deserve information and data that has relevance to their own personal health and circumstances.”

The limited government data available suggests that, overall, insurers deny between 10% and 20% of the claims they receive. Aggregate numbers, however, shed no light on how denial rates may vary from plan to plan or across types of medical services.

Some advocates say insurers have a good reason to dodge transparency. Refusing payment for medical care and drugs has become a staple of their business model, in part because they know customers appeal less than 1% of denials, said Wendell Potter, who oversaw Cigna’s communications team for more than a decade before leaving the industry in 2008 to become a consumer advocate.

“That’s money left on the table that the insurers keep,” he said.

At least one insurer disputes this. Potter’s former employer, Cigna, said in an email that his “unsubstantiated opinions” don’t reflect the company’s business model. In a separate written statement, Cigna said it passes on the money it saves “by lowering the cost of health care services and reducing wasteful spending” to the employers who hire it to administer their plans or insure their workers.

The few morsels insurers have served up on denials stand in stark contrast to the avalanche of information they’ve divulged in recent years on other fronts, often in response to government mandates. Starting last year, for example, insurers began disclosing the prices they’ve negotiated to pay medical providers for most services.

Experts say it’ll take similar mandates to make insurers cough up information on denials, in part because they fear plans with low denial rates would be a magnet for people who are already ailing.

“Health plans would never do that voluntarily, would give you what their claim denial rates are, because they don’t want to attract sicker people,” said Mila Kofman, who leads the District of Columbia’s Affordable Care Act exchange and previously served as Maine’s superintendent of insurance.

About 85% of people with insurance who responded to a recent KFF survey said they want regulators to compel insurers to disclose how often they deny claims. Pollitz, who co-authored a report on the survey, is a cancer survivor who vividly recalls her own experiences with insurance denials.

“Sometimes it would just make me cry when insurance would deny a claim,” she said. “It was like, ‘I can’t deal with this now, I’m throwing up, I just can’t deal with this.’”

Karen Pollitz, a senior fellow at KFF, has written repeatedly about the lack of data on how often insurance companies deny claims. (Alyssa Schukar, special to ProPublica)

She should have been able to learn how her plan handled claims for cancer treatment compared with other insurers, she said.

“There could be much more accountability.”

In September 2009, amid a roiling national debate over health care, the California Nurses Association made a startling announcement: Three of the state’s six largest health insurers had each denied 30% or more of the claims submitted to them in the first half of the year.

California insurers instantly said the figures were misleading, inflated by claims submitted in error or for patients ineligible for coverage.

But beyond the unexpectedly high numbers, the real surprise was that the nurses association was able to figure out the plans’ denial rates at all, by using information researchers found on the California Department of Managed Health Care’s website.

At the time, no other state or federal regulatory agency was collecting or publishing details about how often private insurers denied claims, a 2009 report by the Center for American Progress found.

The Affordable Care Act, passed the following year, was a game changer when it came to policing insurers and pushing them to be more transparent.

The law took aim at insurers’ practice of excluding people with preexisting conditions, the most flagrant type of denial, and required companies offering plans on the marketplaces created under the law to disclose their prices and detail their benefits.

A less-noticed section of the law demanded transparency from a much broader group of insurers about how many claims they turned down, and it put the Department of Health and Human Services in charge of making this information public. The disclosure requirements applied not only to health plans sold on the new marketplaces but also to the employer plans that cover most Americans.

The law’s proponents in the Obama administration said they envisioned a flow of accurate, timely information that would empower consumers and help regulators spot problematic insurers or practices.

That’s not what happened.

The federal government didn’t start publishing data until 2017 and thus far has only demanded numbers for plans on the federal marketplace known as Healthcare.gov. About 12 million people get coverage from such plans — less than 10% of those with private insurance. Federal regulators say they eventually intend to compel health plans outside the Obamacare exchanges to release details about denials, but so far have made no move to do so.

Within the limited universe of Healthcare.gov, KFF’s analyses show that insurers, on average, deny almost 1 in 5 claims and that each year some reject more than 1 in 3.

But there are red flags that suggest insurers may not be reporting their figures consistently. Companies’ denial rates vary more than would be expected, ranging from as low as 2% to as high as almost 50%. Plans’ denial rates often fluctuate dramatically from year to year. A gold-level plan from Oscar Insurance Company of Florida rejected 66% of payment requests in 2020, then turned down just 7% in 2021. That insurer’s parent company, Oscar Health, was co-founded by Joshua Kushner, the younger brother of former President Donald Trump’s son-in-law Jared Kushner.

An Oscar Health spokesperson said in an email that the 2020 results weren’t a fair reflection of the company’s business “for a variety of reasons,” but wouldn’t say why. “We closely monitor our overall denial rates and they have remained comfortably below 20% over the last few years, including the 2020-2021 time period,” the spokesperson wrote.

Experts say they can’t tell if insurers with higher denial rates are counting differently or are genuinely more likely to leave customers without care or stuck with big bills.

“It’s not standardized, it’s not audited, it’s not really meaningful,” Peter Lee, the founding executive director of California’s state marketplace, said of the federal government’s information. Data, he added, “should be actionable. This is not by any means right now.”

Officials at the Centers for Medicare & Medicaid Services, which collects the denial numbers for the federal government, say they’re doing more to validate them and improve their quality. It’s notable, though, that the agency doesn’t use this data to scrutinize or take action against outliers.

“They’re not using it for anything,” Pollitz said.

Pollitz has co-authored four reports that call out the data’s shortcomings. An upshot of all of them: Much of what consumers would most want to know is missing.

The federal government provides numbers on insurers’ denials of claims for services from what the industry calls “in-network” medical providers, those who have contracts with the insurer. But it doesn’t include claims for care outside those networks. Patients often shoulder more costs for out-of-network services, ramping up the import of these denials.

In recent years, doctors and patients have complained bitterly that insurers are requiring them to get approval in advance for an increasing array of services, causing delays and, in some instances, harm. The government, however, hasn’t compelled insurers to reveal how many requests for prior authorization they get or what percent they deny.

These and other specifics — particularly about which procedures and treatments insurers reject most — would be necessary to turn the government’s data into a viable tool to help consumers choose health plans, said Eric Ellsworth, the director of health data strategy at Consumers' Checkbook, which designs such tools.

A spokesperson for CMS said that, starting in plan year 2024, the agency will require insurers offering federal marketplace plans to submit a few more numbers, including on out-of-network claims, but there’s no timeline yet for much of what advocates say is necessary.

Another effort, launched by a different set of federal regulators, illustrates the resistance that government officials encounter when they consider demanding more.

The U.S. Department of Labor regulates upwards of 2 million health plans, including many in which employers pay directly for workers’ health care coverage rather than buying it from insurance companies. Roughly two-thirds of American workers with insurance depend on such plans, according to KFF.

In July 2016, an arm of the Labor Department proposed rules requiring these plans to reveal a laundry list of never-before-disclosed information, including how many claims they turned down.

In addition, the agency said it was considering whether to demand the dollar amount of what the denied care cost, as well as a breakdown of the reasons why plans turned down claims or denied behavioral health services.

The disclosures were necessary to “remedy the current failure to collect data about a large sector of the health plan market,” as well as to satisfy mandates in the Affordable Care Act and provide critical information for agency oversight, a Labor Department factsheet said.

Trade groups for employers, including retailers and the construction industry, immediately pushed back.

The U.S. Chamber of Commerce said complying with the proposal would take an amount of work not justified by “the limited gains in transparency and enforcement ability.” The powerful business group made it sound like having to make the disclosures could spark insurance Armageddon: Employers might cut back benefits or “eliminate health and welfare benefits altogether.”

Trade groups for health insurance companies, which often act as administrators for employers that pay directly for workers’ health care, joined with business groups to blast the proposal. The Blue Cross Blue Shield Association called the mandated disclosures “burdensome and expensive.” AHIP questioned whether the Labor Department had the legal authority to collect the data and urged the agency to withdraw the idea “in its entirety.”

The proposal also drew opposition from another, less expected quarter: unions. Under some collective bargaining agreements, unions co-sponsor members’ health plans and would have been on the hook for the new reporting requirements, too. The AFL-CIO argued the requirements created a higher standard of disclosure for plans overseen by the Labor Department. To be fair and avoid confusion, the group said, the Labor Department should put its rules on ice until federal health regulators adopted equivalent ones for plans this proposal didn’t cover.

That left the transparency push without political champions on the left or the right, former Assistant Secretary of Labor Phyllis Borzi, who ran the part of the agency that tried to compel more disclosure, said in a recent interview.

“When you’re up against a united front from the industry, the business community and labor, it’s really hard to make a difference,” she said.

By the time the Labor Department stopped accepting feedback, Donald Trump had been elected president.

One trade association for large employers pointed out that the Affordable Care Act, which partly drove the new rules, was “a law that the incoming Administration and the incoming leadership of the 115th Congress have vowed to repeal, delay, dismantle, and otherwise not enforce.”

The law managed to survive the Trump administration, but the Labor Department’s transparency push didn’t. The agency withdrew its proposal in September 2019.

A Labor Department spokesperson said the Biden administration has no immediate plan to revive it.

Ultimately, it’s the National Association of Insurance Commissioners, a group for the top elected or appointed state insurance regulators, that has assembled the most robust details about insurance denials.

The association’s data encompasses more plans than the federal information, is more consistent and captures more specifics, including numbers of out-of-network denials, information about prior authorizations and denial rates for pharmacy claims. All states except New York and North Dakota participate.

Yet, consumers get almost no access. The commissioners’ association only publishes national aggregate statistics, keeping the rest of its cache secret.

When ProPublica requested the detailed data from each state’s insurance department, none would hand it over. More than 30 states said insurers had submitted the information under the authority commissioners are granted to examine insurers’ conduct. And under their states’ codes, they said, examination materials must be kept confidential.

The commissioners association said state insurance regulators use the information to compare companies, flag outliers and track trends.

Birny Birnbaum, a longtime insurance watchdog who serves on the group’s panel of consumer representatives, said the association’s approach reflects how state insurance regulators have been captured by the insurance industry’s demands for secrecy.

“Many seem to view their roles as protectors of industry information, as opposed to enforcers of public information laws,” Birnbaum said in an email.

Connecticut and Vermont compile their own figures and make them publicly accessible. Connecticut began reporting information on denials first, adding these numbers to its annual insurer report card in 2011.

Vermont demands more details, requiring insurers that cover more than 2,000 Vermonters to publicly release prior authorization and prescription drug information that is similar to what the state insurance commissioners collect. Perhaps most usefully, insurers have to separate claims denied because of administrative problems — many of which will be resubmitted and paid — from denials that have “member impact.” These involve services rejected on medical grounds or because they are contractually excluded.

Mike Fisher, Vermont’s state health care advocate, said there’s little indication consumers or employers are using the state’s information, but he still thinks the prospect of public scrutiny may have affected insurers’ practices. The most recent data shows Vermont plans had denial rates between 7.7% and 10.26%, considerably lower than the average for plans on Healthcare.gov.

“I suspect that’s not a coincidence,” Fisher said. “Shining a light on things helps.”

Despite persistent complaints from insurers that Vermont’s requirements are time-consuming and expensive, no insurers have left the state over it. “Certainly not,” said Sebastian Arduengo, who oversees the reporting for the Vermont Department of Financial Regulation.

In California, once considered the most transparent state, the Department of Managed Health Care in 2011 stopped requiring insurance carriers to specify how many claims they rejected.

A department spokesperson said in an email that the agency follows the requirements in state law, and the law doesn’t require health plans to disclose denials.

The state posts reports that flag some plans for failing to pay claims fairly and on time. Consumers can use those to calculate bare-bones denial rates for some insurers, but for others, you’d have to file a public records request to get the details needed to do the math.

Despite the struggles of the last 15 years, Pollitz hasn’t given up hope that one day there will be enough public information to rank insurers by their denial rates and compare how reliably they provide different services, from behavioral health to emergency care.

“There’s a name and shame function that is possible here,” she said. “It holds some real potential for getting plans to clean up their acts.”

Kirsten Berg contributed research. David Armstrong and Patrick Rucker contributed reporting.

by Robin Fields

The Group That Governs U.S. Transplant Policies Voted to Require Testing of At-Risk Organ Donors for Chagas Disease

1 year 9 months ago

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The organization that governs U.S. organ transplant policies voted unanimously on Monday to require that donors be tested for a parasitic disease called Chagas.

Last week, ProPublica reported on the death of Bob Naedele, a former police detective from Connecticut who died in 2018 after receiving an infected heart; his death could have been prevented if the donor had been tested for Chagas. The policy change comes after years of recommendations from experts for screening to prevent such deaths.

The new policy, passed by board members of the Organ Procurement and Transplantation Network, will require the groups that recover organs in the U.S. to test the blood of donors born in countries where Chagas disease is prevalent, including Mexico and 20 nations in South and Central America. To be implemented, the policy will need to be approved by the federal Office of Management and Budget.

“My family and I are elated hearing about the policy change,” said Cheryl Naedele, Bob’s wife. “Ensuring no heart recipient will ever have to suffer the ravages of Chagas has been our passion since Bob’s passing.”

Test results will not have to be provided to patients and their medical team before transplant. That means that patients potentially could find out after their transplant that they had received an infected organ — and not have a chance to weigh the risks of a worse outcome.

The Organ Procurement and Transplantation Network committee that drafted the proposal originally planned to require testing to be completed before a transplant. But “many commenters were concerned that the lack of availability of testing and time it takes to get test results could lead to” delays or wasted organs, spokesperson Anne Paschke said, so the committee removed the pre-transplant requirement.

Experts said that any testing requirement can still improve outcomes even if results arrive after a transplant because medical teams could begin treating an infection promptly, rather than discovering the disease after symptoms appear. Treatment for Chagas disease is available, but it’s not always successful in transplant recipients because their immune system needs to be suppressed so their body will not reject the new organ.

In Bob Naedele’s case, his diagnosis took weeks and came too late, after the parasite had invaded his nervous system and brain. He died seven months after what had initially appeared to be a successful transplant.

by Caroline Chen

Baker College Faces Federal Investigation Over “Recruitment and Marketing Practices”

1 year 9 months ago

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The U.S. Department of Education has opened an investigation into Baker College, a large nonprofit school in Michigan, over its “recruitment and marketing practices,” according to a new public disclosure.

For decades, Baker’s marketing touted a low-cost education and a near 100% employment rate for graduates of its campuses and extensive online curriculum. But fewer than a quarter of students graduate, far less than the national average for private four-year colleges. Former students and staff members described frequently changing requirements and programs that delayed graduation, sometimes indefinitely.

Those details and others painted a troubling picture of Baker in a 2022 investigation published by ProPublica and the Detroit Free Press.

On Monday, news of the federal inquiry, first reported by The Chronicle of Higher Education, was welcomed by several students quoted in the ProPublica-Free Press investigation.

“I am stunned, to be honest,” said Bart Bechtel, a Baker graduate who took out more than $40,000 in student loans for an online associate degree.

Bechtel has previously described how the school encouraged his loans, even though the amount he borrowed exceeded his tuition. Financial aid officers, he said, told him he should take advantage of the full amount he was eligible for, since he might need money for Christmas presents and family expenses.

The 2022 story detailed how 70% of Baker students who took out federal loans had problems making payments two years after leaving college. An exceptionally large number of former Baker students with loans had filed claims with the federal government that they were defrauded or misled by the college. As of December 2020, according to data published by Yahoo Finance, of the 266 institutions with more than 100 “borrower defense” claims of deception, only five were long-standing nonprofits. Among those five, three were shuttered colleges, and one had recently regained accreditation 20 years after losing it. The other was Baker.

In an email to ProPublica, a spokesperson for the Department of Education said the agency does not comment on investigations, or acknowledge that they exist, “until any outcomes have been officially communicated to the institution.”

Messages sent on Monday to Baker’s vice president for marketing and communications and to President and CEO Jacqui Spicer were not returned. However, the college issued a brief statement attributed to Baker’s board chair, Denise Bannan, who, over nearly 40 years with the school, has previously served as provost, vice president for academics, president of the Owosso campus and liaison to Baker’s accreditor.

The statement said the college “received an information request” in connection with a department investigation. It said that Baker “is cooperating with the Department’s request and takes its obligations under Title IV of the Higher Education Act of 1965 seriously.”

In a Monday night email Spicer addressed to the “Baker team,” she promised the school was working to resolve the matter “as efficiently and transparently as possible.” She also warned recipients to be cautious of information from “external sources” and to “avoid contact, directly or indirectly, with the media.” The email was obtained by the Detroit Free Press.

The disclosure of an investigation was posted June 21 by the Higher Learning Commission, a private accreditation agency. The day before, Baker issued a news release describing a freeze on undergraduate tuition, a reduction of graduate tuition and some free housing opportunities in the coming academic year.

The commission’s disclosure notes that Baker remains accredited. The college is required to file a report with the accreditor no later than Aug. 18 “providing a detailed update regarding the status of the investigation.” The disclosure also says that the Department of Education’s office of federal student aid initiated the inquiry.

Despite serving many low-income students — and also having a large endowment — Baker College spent more on marketing than financial aid, ProPublica and the Free Press found. Ten years after enrolling, fewer than half of former Baker students made more than $28,000 a year.

“I think it’s a good move,” said Dan Nowaczyk about the federal government’s review of the college. A 2016 graduate from Baker’s now-closed Flint campus, he remembers fellow students who did not realize they would have to pay their loan money back.

“Based on all the stories I’ve heard since your report came out, and from your original report itself, auditing their financial aid processes and making sure it’s all being done right can help not just the students but Baker College itself too in making sure it’s there for the students first and foremost,” Nowaczyk added.

The ProPublica-Free Press investigation also found governance issues at Baker. Upon retirement, former presidents routinely served on the college’s Board of Trustees, which is supposed to provide independent oversight on the decisions of the school administration. One longtime former Baker president served as chair of the board while at the same time being paid more than a million dollars from the college for five years of part-time work.

Baker’s bylaws state that no salary should be “paid to trustees, as such, for their services,” but they do permit payment to a trustee who works for the college itself.

When asked about the source for the graduate employment rates that it promotes, Baker’s then-president cited the National Association of Colleges and Employers. However, the group said it does not evaluate individual institutions. It collects self-reported information from the colleges, often based on surveys.

Baker officials traced the school’s low graduation rate to its open enrollment policy of accepting virtually any applicant with a high school degree or equivalent, the 2022 story reported, and also said the college is not allowed to restrict student borrowers. In a statement, the college emphasized its continuing commitment to improving student outcomes and reducing student loan debt. Regarding Baker spending more on marketing than financial aid, the then-president told reporters that he believed this was necessary because the breadth of the college’s educational opportunities were not well-known.

Following the story’s publication, Baker sent a legal threat to a former faculty member who spoke to a reporter. Jacqueline Tessmer, who taught digital media at the now-closed Auburn Hills campus for 14 years, had told reporters that the college “has ruined a lot of people’s lives.” Soon after, she received a letter sent by a law firm on behalf of Baker, demanding she retract her statements, which it described as “false and defamatory.”

In the 18 months since receiving the letter, Tessmer said, she has not heard again from the college or its lawyers. The news of the federal investigation has her thinking of her former students.

“I hope Baker has to agree to forgiving at least some of the debt incurred by students who never graduated,” Tessmer said. “Or perhaps graduated but were sold degrees that pay so little they will never earn enough to pay them off.”

by Anna Clark

Supreme Court Keeps Navajo Nation Waiting for Water

1 year 9 months ago

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More than 150 years after the Navajo Nation signed treaties with the United States establishing its reservation and recognizing its sovereignty, the country’s largest tribe still struggles to secure the water guaranteed by those agreements.

Decades of negotiations with the state of Arizona have proven fruitless. The state has been uniquely aggressive in using the scarce resource as a bargaining chip to extract concessions from the Navajo Nation and other tribes, dragging out the talks while Indigenous communities await desperately needed water and infrastructure, a recent ProPublica and High Country News investigation found.

The Navajo Nation sued in hopes of accelerating the process. The case, launched 20 years ago, held the potential to reimagine how tribes secure their water rights. But the U.S. Supreme Court last week dashed those hopes by largely deferring to the status quo the tribe has dealt with for decades.

In a 5-4 decision, the court denied the Navajo Nation’s request that the federal government be forced to act in a timely manner to help the tribe quantify, settle and access its water rights. (While tribes negotiate with states for water, the federal government acts on tribes’ behalf by, for example, helping account for how much is needed and available.) Writing for the majority, Justice Brett Kavanaugh said the tribe’s treaties do not impose “a duty on the United States to take affirmative steps to secure water for the Tribe.”

Dylan Hedden-Nicely, director of the Native American Law Program at the University of Idaho and a citizen of the Cherokee Nation, said that in light of the decision, “tribes should continue to be aggressive about pursuing their water rights and hope — at least from a political perspective — in holding the U.S. to its trust obligations to protect tribes’ land and water.”

Now, the Navajo Nation faces the same arduous paths to accessing water: either negotiate with Arizona or fight in state court.

The tribe was on the cusp of a settlement with Arizona in 2010, but the deal died in Congress because it was deemed too expensive. Two years later, another attempt was rejected by the tribal council after Arizona officials insisted it include a lease extension for a controversial coal mine. Then, in 2020, state lawmakers suggested imposing yet another condition on tribes: making the renewal of tribes’ casino licenses contingent on their water deals being finalized.

Navajo Nation leadership has since said that talks with the state have fizzled, especially as the region’s drought has worsened.

Following the court’s decision, Navajo Nation President Buu Nygren said he’s hopeful Arizona’s new governor, Democrat Katie Hobbs, will come back to the negotiating table. During her campaign, Hobbs promised to work with tribes on their water claims, but since taking office her administration has been largely silent on the issue. Hobbs did not respond to requests for comment on the ruling or ProPublica and High Country News’ recent investigation into Arizona’s water rights negotiating tactics.

If negotiations remain stalled, the other option is continuing a water adjudication case in state court that began in 1978, involves 14,000 claims and has no end in sight.

Long Road to the Supreme Court

The Navajo Nation’s case began in 2003, when it sued to force the federal government to move more quickly in helping settle the tribe’s water rights as guaranteed by treaties and court cases. Arizona and other parties intervened in the case, which elicited briefs from four states, more than 100 tribes and 27 trade groups representing mining companies and other water-intensive industries.

“The government says, ‘Leave it to Congress, leave it to the political branches,’” Shay Dvoretzky, the Navajo Nation’s counsel, told the Supreme Court justices during oral arguments in March. “We’ve been waiting half a century for the political branches to solve this problem for the Nation. It hasn’t happened.”

A copy of the 1868 treaty at the heart of the case is displayed in the Navajo Nation’s tribal museum in its capital of Window Rock. The agreement, signed by 29 Diné representatives and U.S. Army Lt. Gen. William Tecumseh Sherman, allowed the Diné people to return to a part of their ancestral homeland after five years in exile and internment at Bosque Redondo in New Mexico.

Although water rights are not explicitly mentioned in the document, there is a promise of a “permanent home” and tools and land to establish an agricultural economy. In court, the Navajo Nation argued this indicated both parties understood water would be available for the reservation to which they were confined.

Nygren said the vision of the Diné leaders who signed the 1868 treaty has only been partially realized. The Navajo Nation has an enrolled membership of more than 400,000 people, but fewer than half live on the reservation, in part because of a lack of reliable water sources.

The court’s decision flies in the face of tribal leaders’ understanding of the treaties, Speaker of the Navajo Nation Council Crystalyne Curley said in a statement. “Through the sacrifices and prayers of our ancestors, we secured the right to have access to water based on our treaties,” she said. “Our leaders negotiated the terms of our treaties in good faith with the federal government.”

Justice Neil Gorsuch, who was joined by the liberal justices in dissenting, agreed that the treaties provide “enforceable water rights” that have yet to be quantified despite the Navajo Nation’s efforts.

“The Navajo have tried it all. They have written federal officials. They have moved this Court to clarify the United States’ responsibilities when representing them. They have sought to intervene directly in water-related litigation,” Gorsuch wrote. “At each turn, they have received the same answer: ‘Try again.’”

In response to the court’s opinion, Nygren said his administration would continue talks with Arizona to “ensure the health and safety of my people.”

Winters Doctrine Spared

The U.S. Department of the Interior released a statement responding to the ruling in which it affirmed its trust responsibility to tribes while saying it would balance the needs of tribal and non-tribal water users.

The Arizona Department of Water Resources, the state’s representative on matters of tribal water, said in a statement that the agency was “grateful” for the ruling because it did not disrupt how the Colorado River system is managed.

While the decision preserved the status quo, it did not upend the court’s own 115-year-old precedent that is the foundation of tribes’ water claims, as some feared it could have. That legal precedent, called the Winters Doctrine, was established in 1908 when the court ruled tribes were entitled to water to create a permanent homeland on their reservations and satisfy their treaties with the United States.

In penning the majority opinion, Kavanaugh walked a line between protecting the Winters Doctrine and declining to expand the federal government’s trust responsibility to tribes.

Had the Winters Doctrine been picked apart, it would have thrown into question the future of every tribe with unsettled water rights. Fourteen of the 30 federally recognized tribes in the parched Colorado River Basin, where the Navajo Nation’s fight for water originated, still have at least some outstanding claims to water, according to a ProPublica and High Country News analysis. Only 39 tribal water settlements have federal approval anywhere in the country, according to a March count by the Congressional Research Service. There are 574 federally recognized tribes.

“Tribal nations have been trying to hold the United States accountable for its failure as a trustee for a long time, and it’s an uphill battle,” said Matthew Campbell, deputy director of the Native American Rights Fund and an enrolled member of the Native Village of Gambell. “This case continues that trend.”

The court’s majority opinion seemed to equate the water shortage facing tribes like the Navajo Nation to what states face in the West. But that framing belies the inequities on the ground, where a third of the families on the reservation do not have access to clean, piped water and must haul it from wells or purchase bottled water, according to DigDeep, a nonprofit that filed an amicus brief in support of the Navajo Nation’s case. That view also sets aside the fact that many tribes hold senior priority water rights, meaning they are legally guaranteed water over other users.

“The Navajo Nation has far less water and less developed water on the reservation than you see off the reservation,” said Derrick Beetso, a professor of law at Arizona State University and citizen of the Navajo Nation.

Bringing their case to the courts, Nygren said, was not an easy choice. The Navajo Nation proceeded because the federal government was not taking its need for water seriously.

After the March oral arguments in the case, he said, “It should not have come to this court.”

by Anna V. Smith, High Country News, and Umar Farooq and Mark Olalde, ProPublica

Inside the Secretive World of Penile Enlargement

1 year 9 months ago

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They wanted it because they’d just gone through a bad breakup and needed an edge in the volatile dating market; because porn had warped their sense of scale; because they’d been in a car accident, or were looking to fix a curve, or were hoping for a little “soft­ware upgrade”; because they were not having a midlife crisis; because they were, “and it was cheaper than a Bugatti Veyron”; because, after five kids, their wife couldn’t feel them anymore; because they’d been molested as a child and still remembered the laughter of the adults in the room; because they couldn’t forget a passing comment their spouse made in 1975; because, despite the objections of their couples therapist, they believed it would bring them closer to their “sex ­obsessed” husband (who then had an affair that precipitated their divorce); because they’d stopped changing in locker rooms, stopped peeing in urinals, stopped having sex; be­cause who wouldn’t want it?

Mick (his middle name) wanted a bigger penis because he believed it would allow him to look in the mirror and feel satisfied. He had trouble imagining what shape the satisfaction would take, since it was something he’d never actually experienced. Small and dark haired, he’d found his adolescence to be a gantlet of humiliating comparisons: to classmates who were blond and blue-­eyed; to his half brothers, who were older and taller and heterosexual; to the hirsute men in his stepfather’s Hasidic community, who wore big beards and billowing frock coats. After he reached puberty — late, in his estimation — he grew an impressive beard of his own, and his feelings of inadequacy concentrated on his genitals.

None of Mick’s romantic partners ever commented on his size, but his preoccupation had a way of short-circuiting the mood. He tried several kinds of self-acceptance therapy, without success; whenever he went to the bathroom, there it was, mocking him. “Like an evil root,” he said of the fixation. “It gets in there and grows like a tree. But I think everybody has that on some level about something.”

After high school, Mick decided to study art and moved to Berkeley, California, where his mother had spent her hippie years. Eventually landing in Seattle, he supported his life as an artist by working in the hospitality industry. His paintings often depicted a human body glowing, as if transfigured, in a geometric landscape.

Over the years, Mick kept up with advances in male augmentation but wasn’t thrilled by the options. The gains from a vacuum pump were fleeting; hanging weights from the end of his shaft seemed like a painful investment for an uncertain result; and having a surgeon snip his suspensory ligament, which promised an additional inch or so, could lead to wobblier erections. It wasn’t until the spring of 2019, when he was 36, that he came across something appealing: a silicone implant shaped like a hot­dog bun that could be inserted just under the skin of the penis to increase its girth and flaccid length.

The device, called the Penuma, had been invented by James Elist — a silver­-haired urologist who has been described on TMZ as “the Thomas Edison of penis surgery.” Elist’s procedure was touted as reversible, and, according to a rapturous article in GQ, more than a thousand men had already undergone it. It was also, as far as Mick could tell, the only genital enhancement on the market to have received the blessing of the Food and Drug Administration.

The basic operation would cost $15,000 — roughly half of Mick’s life savings — though he added in a pair of discounted testicular implants, at seven grand more. He put down a deposit, told his long-distance boyfriend that he was taking a work trip and, on a sunny morning in September, arrived at Elist’s office, in Beverly Hills. A framed copy of the GQ story — cover line: “We Have Huge News About Your Manhood” — hung on the wall of the exam room. Elist strode in, directed Mick to drop his pants and rolled Mick’s scrotal sac appraisingly between his fingers, as though it were a piece of fruit at a market stall.

Elist’s hands seemed reassuringly delicate, but Mick wanted to see the implant before it was put inside him. The surgeon clicked open a briefcase containing three translucent sheaths: Large, Extra Large and Extra Extra Large. The device felt stiff to Mick’s touch, but Elist told him that over time it would soften to the consistency of a gummy bear.

The consultation lasted about five minutes, Mick recalled. He signed a stack of consent forms and releases, including one that said his consultation had lasted more than an hour, and another promising “not to disclose, under any circumstance,” his “relationship with Dr. James J. Elist.” The operation took place the same morning in an outpatient clinic up the street. In the pre­op room, awaiting his turn, he watched “Rush Hour” in its entirety on a flat­-screen TV.

When the surgery was over, Mick, still groggy from the general anesthesia, took an Uber to a Motel 6 near the airport, where he spent the next five days alone on his back, his penis mummy-­wrapped in gauze. Morning erections were excruciating. Sharp jolts seized his crotch whenever he peed, which he could do only by leaning over the bathtub. He’d anticipated some discomfort, but when he changed his gauze, he was startled to see the corners of the implant protruding under the skin, like a misplaced bone.

Back in Seattle, the Penuma’s edges continued to jut out, particularly on the right side, although the testicular implants looked fine. He decided not to tell his boyfriend about the operation: talking to him would only make it seem more real, and he wasn’t yet prepared to entertain the possibility that he’d made a terrible mistake. When he e­mailed Elist’s clinic the staff urged patience, counseling him that he was “continuing to heal as we expect.” Then he began to lose sensation.

“I know it’s been just three weeks and I’m following by the letter all the instructions but I’m a bit concerned about the look of it as you have seen in the pictures,” he wrote Elist.

“It’s been 70 days since surgery and yet it feels like a shrimp,” he wrote in November.

“I’m so sorry for another email,” he wrote in December, “but I am freaking out about the fact I have zero sensitivity in my penis!”

“Being totally numb is normal as mention[ed] in the past correct?” he asked later that month. “It will pass correct?”

After Mick received a cosmetic penile implant, he lost sensation in his penis. (This photo has been darkened to protect Mick’s identity.)

For much of the 20th century, urologists devoted themselves to the prostate, testes, kidneys and bladder. A man’s sexual function, or lack thereof, was largely considered a matter for psycho­analysts to puzzle over. It wasn’t until the late 1970s that a handful of researchers began demonstrating that erectile troubles, though occasionally psychogenic, were primarily vascular in cause. Their discoveries transformed the mercurial penis — John Updike’s “demon of sorts ... whose performance is erratic and whose errands seem, at times, ridiculous” — into a tamable medical object.

It was at this moment of upheaval that Elist entered the clannish, hypermasculine world of American urology. Raised in a Sephardic family in Iran, he completed a residency in Washington, D.C., just before the 1979 Islamic Revolution. Instead of going home, he remained in the States and went into private practice in Beverly Hills. There, he joined the vanguard of physicians who were treating impotence with a suite of novel procedures, such as injections and inflatable penile prostheses. “If the penis is the antenna to a man’s soul, then James Elist must be the Marconi of medicine,” Hustler announced in a 1993 profile. Larry Flynt, the magazine’s publisher, was among his celebrity clientele.

Dr. James Elist, a urologist in Beverly Hills, received his first Food and Drug Administration clearance for his invention, the Penuma, in 2004.

With the blockbuster launch of Viagra, in 1998, Elist feared that demand for surgical cures for erectile dysfunction would fall, and decided it was time to diversify. Over the years, many of his patients had asked if he could make them bigger while he was down there. Walking around the 90210 ZIP code, where the median breast size seemed to balloon by the day, Elist realized that his next move was staring him in the face.

As he toyed with an early prototype for the Penuma, other doctors were dismissive. The penis — a tentacle that shrinks and swells with an exquisite sensitivity — was nothing like the breast; it wouldn’t be possible, they told him, to put something static under its elastic skin.

Because the FDA requires the pharmaceutical industry to conduct clinical studies of new drugs, it is often assumed that the same is required of medical­ device manufacturers. However, a loophole known as the 510(k) process allows companies to implant untested products in patients as long as they can demonstrate that the devices are “substantially equivalent” to those already on the market. In September 2004, not long after Elist convinced the U.S. Patent and Trademark Office of the novelty of his invention, he informed the FDA that his “silicone block” was comparable to calf and butt implants. A month later, when the agency cleared the device for the “cosmetic correction of soft tissue deformities,” the word “penis” did not appear in its indications for use.

Despite the FDA imprimatur, persuading men to get the implant was a challenge, even after one of his patients, Bryan, a 20-something with biceps the size of porterhouse steaks, began modeling it for prospective customers. Bryan, who later referred to himself as Elist’s “spokespenis,” told me he also moderated content on My New Size, an online forum for male enhancement, where Elist’s invention was often extolled. Still, by 2014, the doctor was averaging barely 100 implant surgeries a year. It wasn’t until the 2016 GQ article that his device — newly christened the Penuma, an acronym for Penis New Man — was propelled from the margins to the mainstream. (The New Yorker, like GQ, is owned by Condé Nast.) By the end of the year, Elist was doing roughly 60 Penuma procedures a month, and his oldest son, Jonathan, left a job at McKinsey to become the CEO of International Medical Devices, as they called their family firm.

Prominent urologists had long seen penile enlargement as the remit of cowboys and regarded Elist as such, insofar as they regarded him at all. As part of Penuma’s gentrification campaign, Elist got the FDA to explicitly clear his implant for the penile region in 2017, noting in his application that the “unique anatomy, physiology, and function of the penis does not increase the overall potential risks.” At conferences of the Sexual Medicine Society of North America, his company also began to recruit “key opinion leaders,” as Jonathan put it, to advise the company and join its new board.

Among the KOLs in the field of sexual medicine are those who install the highest number of prostheses to restore erectile function, typically in prostate cancer patients or in men with diabetes. So entrenched is this hierarchy that specialists to whom I spoke frequently rattled off their colleagues’ stats. “It’s all about who has the biggest whatever and who has the bigger numbers,” Faysal Yafi, the director of Men’s Health at the University of California, Irvine, and himself a high-volume implanter, explained.

Elist’s first big catch was Steven Wilson, formerly a professor of urology at the University of Arkansas, who, until his ap­parent unseating by Paul Perito, a spirited upstart in Miami, was feted as the highest­ volume implanter in the country. (“Our Tom Brady,” Yafi said of Wilson, admiringly.) Wilson, a paid consultant for Elist’s company, helped vet skilled surgeons around the country who could be trained to perform the Penuma procedure. “The cosmetic revolution of the flaccid penis,” Wilson said, is urology’s “last frontier.”

On the conference circuit, where the goals of the revolution were the subject of fervid debate, Penuma surgeons argued that urologists were at a crossroads. They could cede the augmentation market to quacks and overconfident plastic surgeons, or they could embrace their vocation as the so­-called champions of the penis, and in their hygienic, well-lit clinics provide patients with what they’d been asking for and might otherwise find an unsafe way to secure. When the tabloids reported in March 2019 that a Belgian ­Israeli billionaire had died on a Parisian operating table while getting an unknown substance injected into his penis, it seemed to prove their point. A month later, Laurence Levine, a past president of the Sexual Medicine Society of North America and a professor at Chicago’s Rush University Medical Center, successfully performed the first Penuma procedure outside Beverly Hills, kicking off the implant’s national expansion.

Soon afterward, the pandemic began fueling a boom in the male ­augmentation market — a development its pioneers attribute to an uptick in porn consumption, work-­from­-home policies that let patients recover in private and important refinements of technique. The fringe penoplasty fads of the ’90s — primitive fat injections, cadaver­-skin grafts — had now been surpassed not just by implants but by injectable fillers. In Las Vegas, Ed Zimmerman, who trained as a family practitioner, is now known for his proprietary HapPenis injections; he saw a 69% jump in enhancement clients after rebranding himself in 2021 as TikTok’s “Dick Doc.” In Manhattan, the plastic surgeon David Shafer estimates that his signature SWAG shot — short for “Shafer Width and Girth” — accounts for half of his practice. The treatment starts at $10,000, doesn’t require general anesthesia and can be reversed with the injection of an enzyme. In Atlanta, Prometheus by Dr. Malik, a fillers clinic, has been fielding requests from private equity investors.

Elist’s first book, “Put Impotency In Your Past,” published in 1991

In a business that’s often reduced to a punchline, enhancement entrepreneurs are unusually vocal about the perceived or actual chicanery of their rivals, whom they see as posing a threat to their fledgling legitimacy. “What can we do to keep patients out of the hands of these charlatans?” Paul Perito, who developed a popular filler named UroFill, asked colleagues at a recent webinar attended by doctors across the world. He displayed a slide highlighting an ad by Victor Loria, an osteopath and erstwhile hair transplant specialist headquartered in Miami, whose permanent penile filler injections were on sale for $14,950. Loria’s concoction, mixed in-­house, includes liquid silicone oil, which is typically used to refill damaged eyeballs. Perito described Loria’s methods as “practically criminal,” but Loria, who self-identifies as the highest volume permanent penile filler administrator in the nation, denies un­ethical conduct, defends the safety record of his product and told me that Perito and his “bandits” were just upset that he’d stepped into the urologists’ sandbox.

What the Penuma promised the urologists was effectively what it promised patients: the chance to make it even bigger. Even as costs soar, physician reimbursement rates from Medicare for complex operations have declined. Inserting an inflatable penile prosthesis to treat erectile dysfunction brings a surgeon around $800. For the Penuma procedure, which is not covered by insurance, that same surgeon can pocket six times as much.

During a call in January 2020, four months after Mick’s Penuma surgery, Elist told him that the sensation in his penis would return in time. Having invested so much, financially and psychologically, in the implant, Mick felt grateful for the doctor’s assurances and tried to focus on his paintings, producing several large acrylic canvases in which forlorn human figures appeared to be tossed about by waves. But the numbness of his penis reminded him of having a limb fall asleep, indefinitely.

In the paperwork Mick had initialed on the day of the surgery, a clause said, “The clinic highly discourages seeking information elsewhere as the information provided can be false, misleading, and inaccurate.” One day, though, Mick opened Google and searched “Elist,” “Penuma,” “numb.”

“I was looking for people to tell me, ‘Oh, yeah, I waited three months, and now everything’s fine, I am very happy,’” he said. Those people were hard to find.

A truck driver whose device dug into his pubic bone told me that he felt like a “prisoner in my own body.” An executive at an adhesive company, who hid his newly bulging crotch behind a shopping bag when walking the dog, began to have nightmares in which he castrated himself. A sales specialist at an industrial­ supply store sent me his diary, which imagined Elist as its addressee. “I wish you would have told me I would lose erect length,” he wrote. “I wish you would have told me it could shift and pinch my urethra and make it difficult to urinate.”

It was tricky to bend over to tie the laces of winter boots, tricky to slip on a condom, tricky to sleep in a comfortable position, tricky to stretch, tricky to spoon. “It makes you look like you’re always semi-­erect,” a health-­spa vice­ president said of his Penuma. “I couldn’t let my kids sit on my lap. I couldn’t jump on the trampoline with them. I even felt like a pervert hugging my friends. And God forbid you get an actual erection, because then you have to run and hide it.”

Not everyone minded. Kaelan Strouse, a 35-year-­old life coach, was thrilled by both the “restaurant-­size pepper mill” between his legs and the kilts he began wearing to accommodate it. Richard Hague Jr., a 74-year-old pastor at a Baptist church in Niagara Falls, said his implant made him feel like “a wild stallion.” Contented customers told me they were feeling better about their bodies and having better sex, too. But even they acknowledged that getting a Penuma could require adjusting not just to a different appendage but to a different way of life. As one pleased Elist patient counseled others, “You have to treat your penis like a Rolex.”

For dozens of Penuma patients who spoke to me, the shock of the new was the prelude to graver troubles. Some, like Mick, lost sensation. Others said they experienced stabbing pains in the shower or during sex. Seroma, or excess fluid, was not uncommon. When a defense­-and-­ intelligence contractor’s girlfriend, a registered nurse, aspirated his seroma with a sterile needle, a cup of amber fluid oozed out. The one time they tried to have sex, she told me, the corners of his implant felt like “someone sticking a butter knife inside you.”

Some implants got infected or detached. Others buckled at the corners. Occasionally these protrusions broke through the skin, forming holes that would fester. The hole of the health­-spa vice ­president was so tiny that he originally mistook its fermented odor for an STD. An engineer with gallows humor played me a video of the snorting crunch his penis made when air moved through a hole. He had two holes, and the skin between them eventually eroded so that a corner of the implant emerged, pearlescent.

A Penuma removed from a patient

Later, doctors unaffiliated with the Pe­numa would compare such penises to “a torpedo,” “a penguin,” “a pig in a blanket,” “a beer can with a mushroom sticking out on the top” and “the tipped-­down nose of the Concorde.” But the imperturbable assistants at Elist’s clinic, besieged by photographs documenting these phenomena, told patients that they were “healing as expected” and “continuing to heal well!” It was only after months had passed and the men insisted they weren’t healing well at all that Elist would sometimes suggest that an “upgrade” to a bigger size would resolve their problems. (Elist said in a deposition that upgrades are “part of the process of the procedure,” noting that some patients “might need the upgrade with the larger implant or the longer im­plant, and that happens often.”) Faced with the prospect of more surgery, some men began, quietly, to seek other advice.

The subculture of penile enhancement remains shrouded in stigma, because for a man to admit that he wants to be bigger suggests that he isn’t big enough. In February, the rapper 50 Cent settled his claims against the Shade Room, a gossip blog he’d sued for falsely insinuating that he’d had work done on his penis and subjecting him “to ridicule.” Only six of the 49 enlargement patients I spoke to agreed to have their last names printed, also fearing ridicule. In such a taboo and information-­poor environment, anonymous testimonials can take on the authority of peer­-reviewed journal articles.

Elist understood this dynamic. In addition to encouraging Bryan, the spokes­penis, to post positive comments on My New Size, Elist tracked his own mentions on PhalloBoards and Thunder’s Place, other online forums for male enhancement, demanding that their moderators stop harboring “defamatory” statements. He offered a PhalloBoards user, after an abscess had formed, $5,000 for deleting his posts about the procedure and releasing the clinic from liability, according to a settlement agreement I reviewed. (Elist said through a spokesperson that the patient didn’t follow post-op advice, and that, while he was not able to respond to some of the accounts in this story because men had requested ano­nymity, complications were rare.)

A sign in Elist’s waiting room instructed patients not to speak to one another about medical issues (the better to protect their privacy, Elist said through the spokesperson). But Elist could only do so much to disrupt the communities of unhappy men coalescing online. As Mick pored over hundreds of posts, he was horrified to discover that he had been acting out a well­-worn script. The others had also read the GQ article about the Penuma, learned that the implant was “reversible” and, heartened by the FDA’s clearance, put down their deposit. They, too, felt that their consultations were rushed and that they hadn’t had enough time to review the cascade of consent forms they’d signed alerting them to potential complications.

Emmanuel Jackson, then 26, was a model who had grown up in foster homes outside of Boston. He won a free Penuma in a contest in 2013, as part of a marketing campaign involving the rapper Master P. According to a complaint by the Medical Board of Califor­nia, Jackson said he was given scripted answers for a promotional video, which later appeared on Elist’s YouTube channel. (Elist’s spokesperson said Jackson volunteered his positive comments in the video, and Master P, who once featured Elist on his Playboy Radio show, said through his own spokesperson that he was not involved with any YouTube testimonials for the implant.)

Emmanuel Jackson’s Penuma fractured into pieces.

Jackson didn’t find the other men on­line until 2018, around the time a doctor at the Cleveland Clinic told him his implant had fractured into pieces that were floating under his skin. A young Iraq War veteran whom Jackson met through PhalloBoards warned him that having the implant out could be even worse than having it in. “He told me, ‘Manny, you’re going to lose your mind,’” Jackson recalled. “He was right.” Medical records show that, not long after the fragments were removed, Jackson attempted suicide.

“I’ve been threatened for saying the things I’m telling you,” Mark Solomon said when I visited him in his waiting room, in Los Angeles, this spring. A plastic surgeon with an elegant Roman nose and a crisp white lab coat over a brown cashmere sweater, he’d learned the techne of male enhancement in Vienna in the ’90s. But he never imagined that, one day, nearly half his male practice would involve fixing the handiwork of other practitioners. Now, as much as he liked to joke that the last thing Beverly Hills needed was another plastic surgeon, he was doing such brisk business repairing Penuma complications that he’d relocated his practice from Philadelphia to an office down the street from Elist’s clinic.

As the number of Penuma procedures increased, a cottage industry emerged to treat what Solomon describes as a new class of “penile cripples.” William Brant, a reconstructive urologist in Salt Lake City, who told me he sees about 10 Pe­numa patients a month, noted “the deep despair of men who can’t unring the bell.” Gordon Muir, a urologist in London, said that he’s been taking out Penumas “all the way across the bloody pond.” But other reconstructive surgeons asked to speak confidentially, because they were afraid of being sued. Solomon had received a cease­ and­ desist letter from Elist’s lawyers arguing that the mere mention of Penuma on his website infringed on the implant’s trademark. (Solomon now notes his expertise in treating complications from “penis enlargement implants” instead.)

Part of plastic surgeon Dr. Mark Solomon’s practice consists of repairing Penuma complications.

From his satchel, Solomon produced a couple of biohazard bags. One held two sheaths of silicone stitched together with a blue thread: an early edition of the Pe­numa that he’d removed from a patient. The other contained a modern Penuma, a single piece with a built-­in crease. “Once this goes in, these men are never going to be the same again, because their penis is never the same again,” he said.

When a foreign object is placed in the body, the body reacts by forming an envelope of tissue around it. In the penis, a re­tractable organ, this new tissue can distort shape and mobility, causing the penis to shorten and curve. The disfigurement can be exacerbated if the Penuma is removed, Solomon explained, since the penis can contract to seal up the vacuum of space — a phenomenon that patients have called the “mini-­dick” or “dicklet” phase.

To counteract retraction and scarring after removal, some men engage in an elaborate penile rehab regimen. Solomon directs his patients to wear a condom with a metal weight at its tip six hours a day. Other doctors who remove the device — explanters, in the parlance — prescribe Re­storeX, a contraption whose painful clamp and extension rods its users compare to a medieval rack. These daily stretching routines are sometimes accompanied by further revision procedures, as well as by prescriptions for Viagra and antidepres­sants. The great irony — lost on few — was that, after getting surgery to stop thinking about their penises, these men were now thinking about their penises all the time.

At conferences and in case reports, urologists across the country cautioned that, although they were seeing only the subset of patients unhappy enough to seek them out, the complications those patients presented (“significant penoscro­tal edema,” severe erectile dysfunction “necessitating placement of an inflatable penile implant during removal”) could be “devastating” and “uncorrectable.” Penuma surgeons, meanwhile, were collecting their own data, which showed that the complication rate was both low and comparable to that of other procedures. In the largest study to date, published in The Journal of Sexual Medicine, Elist’s clinic surveyed 400 of the 526 patients who’d received a Penuma between 2009 and 2014. Eighty-­one percent of the subjects who responded to the questionnaire indicated “high” or “very high” levels of satisfaction. Other surgeons told me they wouldn’t be associated with Elist’s invention if most of their patients (some of whom, they added, were urologists themselves) weren’t simi­larly pleased. On his website, one of the Penuma doctors dismissed PhalloBoards as being populated by patients who ig­nored post-­op instructions and said it was propped up by “opportunistic” compet­itors. (Solomon is among a dozen doc­tors who sponsor PhalloBoards.)

Elist’s consent forms included a pro­vision releasing the clinic from “any liability” if a patient receives post-­op treat­ment elsewhere, but Mick, confused about whom to trust, online or off, decided to seek out a second professional opinion — and then a third, a fourth and a fifth. Some of the physicians he consulted were, as Elist had forewarned, baffled by the alien device. But Thomas Walsh, a reconstructive urologist and director of the Men’s Health Center at the University of Washington, was not. He was struck that Mick, like other Penuma patients, had the misapprehension that the device was easily “reversible,” as Elist and his net­work had advertised. “To fully consent to a procedure, the patient needs someone to tell him everything,” Walsh said. “He doesn’t need a salesman. The problem here is that you’ve got someone who is inventing and manufacturing and selling the device. That personal investment can create a tremendous conflict of interest.” (Elist, through his spokesperson, said his expertise with the device outweighs the conflict, which he freely discloses.)

Reconstructive urologist Dr. Thomas Walsh removed Mick’s Penuma.

Before removing Mick’s implant, in May 2020, Walsh ordered an MRI, which suggested that the device was impinging on the nerves and arteries at the head of his penis. Walsh also sent Mick to a neurologist, who, after prodding Mick’s shaft with a sharp metal tool, declared the glans to have lost “total” sensation.

There was no guarantee it would return. The challenge of removing a Pe­numa, Walsh told Mick, can lie in the detachment of a rectangular piece of mesh from the tip of the penis. Mesh prompts the body to create scar tissue, which binds together everything in its vicinity; to help the implant adhere, Pe­numa doctors stitched some near the head, an area dense with arborized nerves and blood vessels. Despite carefully planning the explantation, Walsh found himself disconcerted in surgery by the sight of his patient’s erogenous zone ensnared by the patch of plastic. “I feel like it’s sacrilege, wrapping a man’s neurovascular bundle in mesh,” Walsh later said. “How would anyone want to do that?”

It has been hypothesized that a longer penis confers an evolutionary edge in launching the reproductive payload into the vaginal canal. But, as the journalist David Friedman recounts in “A Mind of Its Own,” a cultural history of the male sex organ, some primatologists who have seen male apes brandish their genitals during a fight have posited that its purpose, if any, is simpler: to impress and intimidate rivals.

“They notice the penis of a brother or playmate, strikingly visible and of large proportions, at once recognize it as the superior counterpart of their own small and inconspicuous organ, and from that time forward fall a victim to envy for the penis,” Freud wrote in 1925. He was referring to the “momentous discovery which little girls are destined to make” about their lack of a phallus, but his description more precisely captures the “penis envy” that some men told me they’d felt after catching a glimpse of the competition. As John Mulcahy, a clinical professor of urology at the University of Arizona, put it, “It’s more of a locker room thing than a bedroom thing.”

Yet, after biological explanations for impotence triumphed and urologists wrested the penis away from the psychoanalysts, they seemed to overlook the man and the society to which it was attached. Critics of male enhancement said they had no desire to body ­shame men in search of something extra, noting that women who get breast implants can do so without provoking a moral panic. But, especially in the case of men with an unrealistic self-­image, the critics worried that doctors seemed too eager to pitch a risky surgical procedure for what is a cultural, and, in some instances, a psychiatric, phenomenon.

What surgeons continually emphasized — the implanters with pride, the ex­planters with dismay — was that most of the men they were seeing had been of at least average size before going under the knife. (The photographic evidence men sent to me over text and e­mail supported this contention.) “Most don’t have anything physically wrong with them at all, so what they don’t need is vultures preying on them, which is almost always a disaster,” Muir, the London urologist, said.

Along with other urologists and psychiatrists, at King’s College and the University of Turin, Muir conducted a literature review called “Surgical and Nonsurgical Interventions in Normal Men Complaining of Small Penis Size.” The research showed that men dissatisfied with their penises respond well to educational counseling about the aver­age size, which is 3.6 inches long when flaccid, and 5.2 inches erect. (The average girth is 3.5 inches flaccid, and 4.6 inches erect.) For men who have an excessive and distorted preoccupation with the appearance of their genitals — a form of body dysmorphic disorder — Muir said that cognitive behavioral therapy and medications may also be necessary.

Penuma surgeons told me they use educational videos, intake surveys and sex­ual­-health therapists to make sure that the men they operate on have realistic expectations and to screen for those with body dysmorphia, though only a handful of the patients I spoke to recalled being referred to a therapist before their surgery.

An anatomical model at the Men’s Health Center at the University of Washington

Shortly before the pandemic, Elist received a Google alert for “penile implant” and noticed something strange: a Houston urologist, Robert Cornell, had been issued a patent for the Augmenta, a device that bore an uncanny resemblance to his own. The previous year, Cornell had asked to learn about the Penuma “expeditiously,” saying that he saw a “real opportunity to expand the level of service” he offered to patients. Run Wang, a Penuma board member and a professor at the University of Texas MD Anderson Cancer Center, in Houston, had cautioned Elist that Cornell could be a bit of a snake, according to Jonathan Elist. But father and son chalked up Wang’s warning to the machismo of the Texas urological market, and Elist invited Cornell to shadow him as he performed four Penuma procedures. Now, as Elist thumbed through Cornell’s patent, he was startled to see his future plans for the Penuma, which he said he recalled discussing with Cornell, incorporated into the Augmenta’s design.

In April 2020, Elist and his company sued Cornell, alleging that his visit to Beverly Hills was “a ruse” to steal trade secrets. Later that year, when Elist discovered that Wang was listed as the Aug­menta CEO and had assisted the penile startup with its cadaver studies, Elist and his company added Wang as a party to the suit. (Cornell and Wang did not comment for this story, though Wang denied through his counsel that he’d called Cornell a snake and said in court filings that he’d been named CEO without his consent.)

When deposed, Cornell said that he’d talked to Elist about marketing strategies, not proprietary specifics, and that his invention had been spurred by potential hazards he’d observed during the surgeries, particularly the use of mesh. As both teams began conscripting high­-volume implanters as allies and expert witnesses, the fraternity of sexual medicine was sundered into warring camps. “This is a tiny smear of people, and they are fucking cutthroat,” one high­-volume implanter told me of the intellectual­ property dis­pute. “It’s vicious because there’s so much money to make.”

Augmenta’s team endeavored to put the safety record of the Penuma on trial, securing Elist’s confirmation in a deposition that 20% of the patients in his 2018 study had reported at least one adverse post-­surgical event. Foster Johnson, one of the Augmenta attorneys, also tracked down some of the patients who’d posted horror stories online. In 2021, he reached out to Mick.

A year had passed since Mick’s ex­plant, and he’d entered a serious depression. He’d barely noticed when pandemic restrictions were lifted, because he’s continued to stay in his bed. Originally six and a half inches erect, he had lost an inch of length. Whenever he caught sight of himself in the mirror, he felt desperate.

So did other post-­removal patients. An FBI agent in his early 30s said that he was afraid he would never date again, let alone start a family, because his penis had shrunk to a stub. A Hollywood executive who’d undergone multiple surgeries with Elist told me, “It’s like he also snipped the possibility of intimacy away from me.” The defense-and-intelligence contractor, who’d traveled the country to consult six reconstructive surgeons, said he’d tucked a Glock in his waistband before one appointment, thinking he might kill himself if the doctor couldn’t help.

Mick had come to believe that the only thing more humiliating than being a satisfied penile­ enhancement patient was being a dissatisfied one. Still, he tried to alert local news stations, the Better Business Bureau, the FBI, the district attorney, malpractice lawyers, the California medical board. No one returned his calls — “Who could blame them when it almost sounds like a joke?” — apart from an investigator with the medical board, who didn’t treat his distress as a laughing matter.

Neither did Johnson, who decided to tip off a Houston-­based firm that specializes in class-­action complaints. Last year, a Texas man accused International Medical Devices of falsely advertising the Penuma as FDA ­cleared for “cosmetic enhancement” when it was, until recently, cleared only for cosmetic correction of soft-tissue deformities. Jonathan Elist called the lawsuit, which awaits class certification, meritless. “It’s not medical malpractice,” he said. “And it’s not a product-liability case, either, which is what one might expect from something like this.” His expectations proved prescient when, in March, a personal injury law firm in Ohio brought the first of what are now eight product-liability suits against the company. The lawsuits, all of which Elist’s spokesperson called “frivolous,” feature 10 John Does.

Every surgical revolution is bloody by definition. When I met Elist, earlier this year, he underscored how many taken-for-granted medical breakthroughs had emerged from tweaks and stepwise developments. The breast im­plant had been dogged by ruptures and leaks in its early days. Even the celebrated penile pump — the object around which the egos of many eminent urologists now orbit — had taken years to overcome high rates of removals. Two decades of innovation had led to the current Penuma procedure, he noted, and during that time nearly everything about it had improved, from the deployment of a drain to the placement of the incision. “This procedure is like any other procedure,” he told me. “It has its own evolution.”

Recently, the Penuma procedure evolved again. Elist had got rid of the vexing patch of mesh, and the company was shipping out a new model. He invited me to shadow him as he implanted it.

The first operation of the day complete, Elist was in a giddy, expansive mood. As his next patient was put under anesthesia, Elist sat behind an imposing desk in a borrowed office and spoke about his forthcoming book, a collection of parables for spiritually minded surgeons titled “Operating with God.” His ghost­writer had rendered his voice so skillfully, he said, that he’d found himself moved to tears while reading it. Beside a gilt statue of a jaguar in the corner of the room, someone had propped a mirror with an image of Jesus etched at its center. As Elist recounted passages from his book, his merry face, crowned by a hair­net, hovered next to Christ’s.

The surgery, which Elist said was supposed to take approximately 35 minutes, lasted twice as long. A surgical technician had covered the patient’s body in sheets until only his penis, gleaming beneath the overhead lamp, was visible. With a purple marker, Elist drew a dotted line close to where the scrotum met the shaft. A clamp pulled the skin taut, and he began to cut along the line. The scrotal skin gave easily, like something ripe, and a few seconds later, the man on the table let out a high-­pitched sound.

To stop the bleeding, Elist applied a cautery pencil that beeped each time it singed the skin, giving off smoke and a whiff of burned flesh. Alternating between his cautery tool and a pair of scissors, he deepened the incision, centimeter by centimeter, revealing the chalky tissue below, until he approached the pubic bone. Then, in a stage known as “degloving,” he began to flip the penis inside out through the hole he’d created at its base. Wearing the marbled interior flesh around his fingers, he trimmed the soft tissue and cauterized a series of superficial blood vessels, speckling the interior of the shaft with dark dots. For a few moments, a quivering red sphere popped up like a jellyfish surfacing at sea — an in­verted testicle, he explained.

A nurse unwrapped an Extra Large implant from its box and handed it to Elist, who used curved scissors to smooth its top corners. With a hook-shaped needle, he began to sew the implant into the inverted penis, and he asked his surgical tech to tie a “double lateral” knot. He barked the word “lateral” several times and sighed. “She’s never seen this procedure,” he told me. When he asked for wet gauze a few minutes later, she handed him a piece they’d discarded. “You know that it’s dirty,” he reprimanded her in Farsi. “It was on the skin. And you bring it for me?”

I recalled that Zimmerman, the “Dick Doc” of Las Vegas, had compared his own visit to Elist’s operating theater to being “in the presence of a master conductor who can bring the whole orchestra together.” But as Elist chided his tech for being “a troublemaker” — she’d handed him the wrong size of sutures, an unnecessary needle, the wrong end of the drain, the wrong kind of scissors — it felt like watching the stumble-through of a student ensemble.

Elist cauterized more tissue by the pubic bone to make sure the implant would fit there, and at this the patient’s breaths rose into a moan. Elist regloved the penis with the Penuma tucked under its skin. Too long, he decided. He slid the implant out part way and snipped a bit off the bottom. Pushing it into the shaft, he wagged it back and forth. “OK,” he said. It was done. The patient, who had arrived that morning av­erage sized — four inches in length by four inches in girth — was now six by five. Later, through his spokesperson, Elist would say that the patient’s outcome was excellent. In the room, talk turned to preparing the table for the next man.

The office building in Beverly Hills where Elist’s clinic is located

Elist has always been keen to dis­tance himself from other purvey­ors of controversial penile enhancement techniques — “gimmick” surgeons, he has called them. At one point during our conversations, which were punctuated by lively digressions, he said that some of his unscrupulous rivals reminded him of Josef Mengele, the Nazi doctor who con­ducted lethal experiments on prisoners at Auschwitz. “How do you allow yourself to put something on the patient’s body that you know gets infected?” he asked, as though addressing them directly. Sections of his website and of a book he self-­published in 2015, “A Matter of Size,” are devoted to chronicling the macabre complications that can result from skin grafts and fat injections to the penis.

When I reviewed old files in an underground archive for the Los Angeles County courts, however, I saw that, a decade before the Penuma came into being, Elist had been part of a coterie of LA surgeons promoting the very methods he now decried, with coverage in Hustler, Penthouse, Penis Power Quarterly and local newspapers like the Korea Central Daily and the Korea Times. One ad, in Korean, for the surgery center where Elist operated sounded a familiar note, promising a “life changing” procedure with no complications and “guaranteed results,” performed by “the Highest Authority in Urology in Beverly Hills,” “approved by the state government” and “authorized by the FDA.”

At least 23 malpractice lawsuits have been filed against Elist in Los Angeles since 1993. (He has also been named as a defendant in product liability lawsuits regarding inflatable penile prosthesis brought by plaintiffs Dick Glass and Semen Brodsky.) The dockets indicate that some of the complaints were settled confidentially out of court, a few were dismissed and in one of two trials a jury ruled in Elist’s favor.

It is not unusual for a doctor practicing for more than 40 years to be accused of malpractice, and it is not unusual, either, for patients to be self-­serving in their recollections of informed consent, but as I scrolled through the microfilm I was surprised to see how many of Elist’s past patients — who’d received cosmetic surgeries, medical procedures or both — described the same MO. Three men alleged that they’d been asked to sign consent forms after being injected with Demerol, a fast-acting narcotic. A number of foreign-­born patients seeking treatment for erectile dysfunction alleged that they were given forms in English, which they couldn’t read, and some of those same patients, who said they’d thought they were undergoing a vein-cleaning procedure, alleged that they awoke from surgery to find themselves implanted with a penile prosthesis for erectile dysfunction. Multiple patients who said they’d turned to Elist for a functional issue alleged that they’d been upsold enhancement procedures that resulted in their disfigurement. Ronald Duette, a 65-year-old property manager and auto detailer who filed a malpractice case in 2021, told me that a consultant at Elist’s clinic had encouraged him to get the Penuma by reassuring him that Elist had one himself.

Elist’s spokesperson told me that Du­ette’s allegations and the claims in the other lawsuits are false; that Elist does not have a Penuma; and that Elist is a gifted, responsive and exacting surgeon, supported by conscientious employees, who does not rush his patients and performs additional surgery only when medically appropriate. The spokesperson said Elist was not aware of any patients suffering extreme dissatisfaction or sleeplessness or mental health crises as a result of Pe­numa surgery, and noted that complications were more likely when patients failed to comply with post-­op instructions. The spokesperson disputed some particulars of Mick’s account (Mick waived his medical privacy rights so that Elist could discuss his records) and said this article “cherry­-picks and sensationalizes” outlier cases.

Elist told me that what his critics failed to grasp, whether by dint of envy or closed mindedness, was that for every dissatisfied customer there were many more whose lives had improved immeasurably. Nobody hears about the happy implantees, he said, because “unfortunately people are not willing to come out and talk about penile enlargement.”

All nine deeply satisfied Penuma patients I spoke to, several on the recommendation of Elist and his associates, said they would do it again. “I can give someone pleasure and see it in their eyes,” an industrial designer said. “That’s the part that makes me almost cry.” But hear­ing some of their stories I found myself wondering whether the difference between happy and unhappy customers was less a matter of experience than of its interpretation. Two men said they’d needed a second surgery to replace their implants when complications arose, and one continued to volunteer as a patient advocate even though he’d had his Extra Extra Large removed. He explained: “It was very uncomfortable for my wife. She was getting micro­tears and was considering getting a procedure done to enlarge that opening.”

Elist emphasized to me that “the best advantage of Penuma over any other procedure” was how easy it was to remove. He said that some patients even gained length upon removal. Last year, Penu­ma’s monthly newsletter, “Inching Towards Greatness,” featured the YouTube testimonial of a man who, after his re­moval, said that the procedure had still been “worth every cent.” This patient — who described his Penuma to me as a “life-­ruiner” — said that he’d been under the influence of drugs the clinic had prescribed at the time. Elist, through his spokesperson, declined to comment on the matter; the video is no longer available.

In April, Mick received a letter from the office of California’s attorney general, notifying him of a hearing this October on Elist’s conduct. Since Mick had filed his complaint, the California medical board had investigated the surgeon’s treatment of 10 other Penuma patients, including the contest winner Emman­uel Jackson and other men I interviewed. Alleging gross negligence and incompetence, the board accused Elist of, among other lapses, recommending that patients treat what appeared to be post-­op infections with Neosporin, aloe vera and a blood­flow ointment; asking them to remove their own sutures; and deterring them from seeking outside medical care. Elist said through his attorney that innovative procedures like his are routinely reviewed by regulators; that many specifics in the complaint are false; and that a previous medical board complaint against him was resolved in 2019, when he agreed to improve his recordkeeping.

Reading the letter from the attorney general’s office dredged up “dark thoughts from the ditch where I’d been burying them,” Mick said. In the three years since his Penuma removal, he estimates that he’s regained about 80% of the sensation in his penis, but his anger and sense of powerlessness have remained. In one of his last e­mails to Elist’s office, he wrote that he’d felt like “a testing mouse.” Given a recent expansion of Elist’s empire, the possibility that the surgeon might be censured, fined or lose his license now seemed to Mick beside the point. “They should have cut down the tree before it grew,” he said. “It’s too big now.”

The Medical Board of California is investigating Elist’s treatment of Mick and 10 other Penuma patients. A hearing is scheduled for October.

In Times Square, a billboard recently appeared: “MANHOOD REDEFINED,” it said, beside the URL for the Penuma website. A few weeks after Elist and his lawyer were served by the office of the California attorney general, Elist was traveling on the East Coast, training new recruits to his network. He has also been pitching interested parties in the United Arab Emirates, Qatar, Ku­wait and South Korea, the world capital for cosmetic surgery. Colombia was already a go. “The Penuma is going to be the only procedure that surgeons not just in the United States but worldwide are going to accept,” Elist told me.

In June, his company rebranded the updated Penuma as the Himplant, and the Augmenta trial unfolded in a federal courthouse in downtown Los Angeles. Elist testified with brio about his victimization at the hands of Cornell, who’d violated “the sanctuary” of his operating theater; the judge ruled with Penuma’s attorneys that the negative experiences of patients like Mick were irrelevant to the question of theft at hand. On June 16, the jury returned a verdict in Elist’s favor and invalidated Cornell’s patents.

Not long ago, I met Bryan, Elist’s for­mer penis model, at a coffee shop in Orange County. He had undergone multiple surgeries with Elist, with two different iterations of the implant. He said he’d experienced complications and, in 2011, he’d had his second implant removed. The following year, Bryan ended up flying to Philadelphia for the first in a series of revision and enhancement procedures with Solomon, whom he’d learned about on PhalloBoards.

This spring, he was released from prison, where he’d served time for participating in a car theft ring that a pros­ecutor described as highly sophisticated and that Bryan described to me as a matter of “incorrectly filled-out paperwork.” When he returned home, he got back into the enlargement scene. He now works as a paid patient advocate for Solomon — a role that involves fielding inquiries from men struggling with the fallout from unsatisfactory operations. The week before we met, Bryan had spent hours on the phone with Kevin (his middle name), an aspiring actor. Kevin said that he had undergone five surgeries with Elist, including two upgrades, a revision and a removal, and his penis no longer functioned.

Still, Kevin had always found the surgeon to be caring, if a little preoccupied. “He reminded me of Doctor Franken­stein — the intensity of him wanting this thing to come to life,” Kevin told me. It sounded strange, he acknowledged, but before each operation he’d been filled with excitement. “You just feel relieved that you’re fixing something,” he said.

At an appointment earlier this year, Kevin said, Elist promised to fix him again with a sixth procedure, but one of the surgeon’s assistants discreetly advised against it. Kevin thought he could spot “the other experiments” in the clinic from their loose-­fitting sweatpants and the awkward way they walked. There were so many men waiting to see the doctor that they spilled into the hallway.

Kirsten Berg contributed research.

by Ava Kofman; Photography by Philip Cheung, special to ProPublica

Behind the Scenes of Justice Alito’s Unprecedented Wall Street Journal Pre-buttal

1 year 9 months ago

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Around midday on Friday, June 16, ProPublica reporters Justin Elliott and Josh Kaplan sent an email to Patricia McCabe, the Supreme Court’s spokesperson, with questions for Justice Samuel Alito about a forthcoming story on his fishing trip to Alaska with a hedge fund billionaire.

We set a deadline of the following Tuesday at noon for a response.

Fifteen minutes later, McCabe called the reporters. It was an unusual moment in our dealings with the high court’s press office, the first time any of its public information officers had spoken directly with the ProPublica journalists in the many months we have spent looking into the justices’ ethics and conduct. When we sent detailed questions to the court for our stories on Justice Clarence Thomas, McCabe responded with an email that said they had been passed on to the justice. There was no further word from her before those stories appeared, not even a statement that Thomas would have no comment.

The conversation about Alito was brisk and professional. McCabe said she had noticed a formatting issue with an email, and the reporters agreed to resend the 18 questions in a Word document. Kaplan and Elliott told McCabe they understood that this was a busy time at the court and that they were willing to extend the deadline if Alito needed more time.

Monday was a federal holiday, Juneteenth. On Tuesday, McCabe called the reporters to tell them Alito would not respond to our requests for comment but said we should not write that he declined to comment. (In the story, we wrote that she told us he “would not be commenting.”)

She asked when the story was likely to be published. Certainly not today, the reporters replied. Perhaps as soon as Wednesday.

Six hours later, The Wall Street Journal editorial page posted an essay by Alito in which he used our questions to guess at the points in our unpublished story and rebut them in advance. His piece, headlined “Justice Samuel Alito: ProPublica Misleads Readers,” was hard to follow for anyone outside ProPublica since it shot down allegations (notably the purported consumption of expensive wine) that had not yet been made.

In the hours after Alito’s response appeared, editors and reporters worked quickly to complete work on our investigative story. We did additional reporting to put Alito’s claims in context. The justice wrote in the Journal, “My recollection is that I have spoken to Mr. Singer on no more than a handful of occasions,” and that none of those conversations involved “any case or issue before the Court.” He said he did not know of Singer’s involvement in a case about a long-standing dispute involving Argentina because the fund that was a party to the suit was called NML Capital and the billionaire’s name did not appear in Supreme Court briefs.

Alex Mierjeski, another reporter on the team, quickly pulled together a long list of prominent stories from the Journal, The New York Times and The Financial Times that identified Singer as the head of the hedge fund seeking to earn handsome profits by suing Argentina in U.S. courts. (The Supreme Court, with Alito joining the 7-1 majority, backed Singer’s arguments on a key legal issue, and Argentina ultimately paid the hedge fund $2.4 billion to settle the dispute.)

It does not appear that the editors at the Journal made much of an effort to fact-check Alito’s assertions.

If Alito had sent his response to us, we’d have asked some more questions. For example, Alito wrote that Supreme Court justices “commonly interpreted” the requirement to disclose gifts as not applying to “accommodations and transportation for social events.” We would have asked whether he meant to say it was common practice for justices to accept free vacations and private jet flights without disclosing them.

We also would have asked Alito more about his interpretation of the Watergate-era disclosure law that requires justices and many other federal officials to publicly report most gifts. The statute has a narrow “personal hospitality” exemption that allows federal officials to avoid disclosing “food, lodging, or entertainment” provided by a host on his own property. Seven ethics law experts, including former government ethics lawyers from both Republican and Democratic administrations, have told ProPublica that the exemption does not apply to private jet flights — and never has. Such flights, they said, are clearly not forms of food, lodging or entertainment. We had already combed through judicial disclosures, so we knew that several federal judges have disclosed gifts of private jet flights.

We might also have sent Alito some of the contemporaneous stories about Singer’s dispute with Argentina that were readily available online. Given Alito’s previous ties to the Journal’s editorial page — he granted it an exclusive interview this year complaining about negative coverage of the court — it’s probable that the stories we sent him would have included the page’s 2013 piece titled “Deadbeats Down South” that approvingly noted that “a subsidiary of Paul Singer’s Elliott Management” was holding out for a better deal from Argentina. We would have asked how his office checks for conflicts and whether he is concerned it didn’t catch Singer’s widely publicized connection to the case.

The Journal’s editorial page is entirely separate from its newsroom. Journalists were nonetheless sharply critical of the decision to help the subject of another news organization’s investigation “pre-but” the findings.

“This is a terrible look for ⁦@WSJ,” tweeted John Carreyrou, a former investigative reporter at the Journal whose award-winning articles on Theranos lead to the indictment and criminal conviction of its founder, Elizabeth Holmes. “Let’s see how it feels when another news organization front runs a sensitive story it’s working on with a preemptive comment from the story subject.”

Bill Grueskin, a former senior editor at the Journal and a professor of journalism at Columbia, told the Times that “Justice Alito could have issued this as a statement on the SCOTUS website. But the fact that he chose The Journal — and that the editorial page was willing to serve as his loyal factotum — says a great deal about the relationship between the two parties.”

Even Fox News got in the game. “Alito must be congratulating himself on his preemptive strike, but given that the nonprofit news agency sent him questions last week, was that really fair? And should the Journal, which has criticized ProPublica as a left-wing outfit, have played along with this? The paper included an editor’s note that ProPublica had sent the justice the questions, but did not mention that its story had not yet run,” the cable news outfit’s media watcher Howard Kurtz wrote.

There are lessons for ProPublica in this experience. Our reporters are likely to be a bit more skeptical when a spokesperson asks about the timing of a story’s publication.

But one thing is not changing. Regardless of the consequences, we will continue to give everyone mentioned in our stories a chance to respond before publication to what we’re planning to say about them.

Our practice, known internally as “no surprises,” is a matter of both accuracy and fairness. As editors, we have seen numerous instances over the years in which responses to our detailed questions have changed stories. Some have been substantially rewritten and rethought in light of the new information provided by subjects of stories. On rare occasions, we’ve killed stories after learning new facts.

We leave it to the PR professionals to assess whether pre-buttals are an effective strategy. Alito’s assertion that the private flight to Alaska was of no value because the seat was empty anyway became the subject of considerable online amusement.

And the readership of our story has been robust: 2 million page views and counting. It’s possible that Alito has won the argument with the audience he cares the most about. But it seems equally plausible that he drew even more attention to the very story he was trying to knock down.

Alito’s behavior underscores that the “no surprises” approach involves taking a risk, allowing subjects to “spit in our soup,” as Paul Steiger, the former Journal editor who founded ProPublica, liked to say.

Nevertheless, following our practice, we asked the Journal editorial page, Alito and McCabe for comment before this column appeared. We did not immediately hear back from them.

Watch video of senior editor Jesse Eisinger and reporter Justin Elliott in conversation about the investigation.

by Jesse Eisinger and Stephen Engelberg

Organ Transplant Patients Can Die When Donors Aren’t Screened for This Parasitic Disease

1 year 9 months ago

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When a ringing phone woke Bob Naedele on his 64th birthday, the caller offered the best gift imaginable: Newark Beth Israel Medical Center had a heart for him. A heart attack had left Naedele, a former police detective, with grave cardiac damage, and he had spent the last 2 1/2 years on the transplant waiting list.

Naedele’s family usually celebrated birthdays with dinner and a cake. But on that day in May of 2018, Bob and his wife of 43 years, Cheryl, instead started calling their children to let them know that they were heading to the hospital. The cake would have to wait.

He went into surgery and received his new heart shortly after midnight.

At first, Bob Naedele’s recovery seemed to go well, according to his wife. He returned home after three weeks and initially had more energy than before. It seemed as though their longtime dream of traveling across the country in an RV to visit national parks might be within reach.

But nine weeks after his transplant, Naedele got a fever, and his hands began shaking with tremors. He returned to Newark Beth Israel. Doctors ran test after test but were unable to find the cause.

After he spent more than a month in the hospital, doctors discharged him, but he continued to decline. “He fell, and I had to get my neighbor’s help to get him back to bed,” Cheryl Naedele recalled. “I had to put him in a wheelchair to get him to the bathroom.” Bob Naedele deteriorated so quickly that his wife had to call for an ambulance. This time he went to Yale New Haven Hospital, which was closer to their home in Connecticut. By the next day, doctors in Yale’s intensive care unit found the culprit: The heart Naedele had received had been infected with a parasite that causes Chagas disease.

“He was basically filled with parasites,” recalled Dr. Tariq Ahmad, chief of heart failure at Yale cardiology. The organisms had multiplied in his heart and invaded his nervous system and brain.

For 12 long weeks, the doctors at Yale tried to purge the parasites, but this was difficult with a patient who needed to be on immunosuppressants to prevent his body from rejecting the new heart.

Bob Naedele watches a Miami Dolphins game on a tablet in Yale New Haven Hospital. He took a figurine of former Dolphins quarterback Dan Marino with him everywhere, including his hospital stays. (Courtesy of Cheryl Naedele)

Damage to Bob Naedele’s nervous system made him hypersensitive, Cheryl Naedele recalled. Doctors intubated him after he developed pneumonia, and every time the nurses suctioned his tube to clear secretions, his wife walked out of the room so she wouldn’t have to hear her husband screaming. Finally, Bob told her that he couldn’t bear the pain any more, so they discontinued treatment. Her high school sweetheart passed away seven months after that hopeful call about the heart that was waiting for him.

His death could have been prevented if the donor had been screened for Chagas.

Chagas disease is caused by a parasite called T. cruzi, which is transmitted via insects and found mainly in rural areas of Central America, South America and Mexico. Though cases of Chagas in the United States are rare, the parasite has been a known risk for transplant recipients for decades. Since at least 2001, case studies have detailed how U.S. patients have died after receiving infected organs.

For years, experts have recommended that transplant networks screen donors who were born in countries where the parasite is endemic. A 2011 working group of transplant infectious diseases specialists and representatives from the U.S. Centers for Disease Control and Prevention said these donors should be tested, and so did the American Society of Transplantation in 2019. Infected patients can appear healthy for years, and some never develop symptoms, so it’s not obvious they harbor the parasites.

Yet, despite expert recommendations, the U.S. does not require at-risk organ donors to be screened for Chagas.

Some American transplant networks screen for the disease anyway, but New Jersey’s organ procurement organization, the NJ Sharing Network, did not — even though the donor whose heart Bob Naedele received was an immigrant from Mexico.

Cheryl Naedele filed a medical malpractice lawsuit against the NJ Sharing Network, Newark Beth Israel and members of the medical team involved in her husband’s care. NJ Sharing Network and Newark Beth Israel declined to comment on ongoing litigation. In court filings, both organizations denied the allegations of medical malpractice.

On Monday, the board of directors of the Organ Procurement and Transplantation Network, which governs transplant policies in the U.S., will meet to consider a proposal that would require screening of donors born in Mexico or 20 countries in Central and South America.

The proposal has divided transplant professionals. Some state and regional organ procurement organizations argue that screening for Chagas would be too cumbersome and could potentially delay organs from reaching patients in need. Others argue that there are ways to speed the process and it’s time to finally implement the screening that experts have recommended for years to prevent deaths like Bob Naedele’s.

To Cheryl Naedele, the choice is obvious. “With heart transplants, you’re supposed to be giving patients a second life, but then you’ve killed them” if you provide a diseased heart, she said. “How much should it cost to prevent this suffering?”

Photos of Bob Naedele and his three children hang on the wall in Cheryl Naedele’s living room. (Yehyun Kim for ProPublica)

Though Chagas isn’t common in the U.S., the risk is serious enough that blood donations have been screened routinely for antibodies to the parasitic disease since 2007.

Studies estimate that about 300,000 infected people are currently living in the U.S., mostly immigrants. The risk of donor-derived infection is increasing, the Organ Procurement and Transplantation Network said, due to migration patterns and increased organ distribution.

The biggest concern about screening for Chagas is timing. Organs are typically transplanted within a few days after becoming available, in order to maintain their health after a donor dies. Organs are scarce, and nobody wants to lose one while waiting for a test result.

Current regulations require that organ donors be screened for a slew of infectious diseases, including HIV, hepatitis B and C, cytomegalovirus, Epstein-Barr virus and syphilis. Those tests can typically be completed within 12 hours, according to Colleen McCarthy, the president for the Association of Organ Procurement Organizations.

For more than 15 years, Donor Network of Arizona has tested every organ donor for Chagas, according to PJ Geraghty, the network’s vice president of clinical services. They haven’t had a positive donor yet but continue to screen because so many donors in the state come from endemic areas. A partnership with a lab in Tempe has allowed the group to test for Chagas in the same time frame as other mandatory tests, Geraghty said.

But McCarthy said that it’s “optimistic to think that the lab community could respond” quickly to a new requirement. “Some labs may have more ability to adjust to a new regulation,” while others may not, she said, potentially leaving some organ procurement organizations unable to comply.

Responding to this concern, a committee of the Organ Procurement and Transplantation Network added a workaround to its proposal. The committee recommended screening for at-risk donors but said that a transplant can proceed even if the Chagas test results are not back yet.

That means that a patient could learn after their transplant that they had received an infected heart, but knowing about the infection would allow doctors to treat it early. Currently, organs are not ruled out if they are infected with other viruses, but the patient is typically informed of any positive results so they can decide, along with their medical team, whether it is worth the additional risk and need for treatment. The fact that some patients choose to accept HIV-positive organs “highlights the incredible need” for organs, said McCarthy.

Anne Paschke, a spokesperson for the Organ Procurement and Transplantation Network, said the group was trying to “balance patient safety with the risk of negatively impacting organ utilization.”

Transplant experts, infectious disease specialists and the American Society of Transplantation have said that hearts from donors with Chagas should not be transplanted. While there is a treatment for Chagas, past case studies have found that hearts have a much higher risk of transferring the infection to the recipient compared with other organs.

Dr. Saima Aslam, the director of solid organ transplant infectious diseases at UC San Diego Health, said that though testing should be done prior to transplant, that doesn’t necessarily mean that an infected heart can’t be used. “Knowledge is power,” she said. “If we know a patient has a 90% chance of dying, we could take the organ and put them on treatment from the get-go with the patient or family’s buy-in, understanding the risk.”Treatment prognosis depends on the condition of both the patient and the heart, she said. Ultimately, she said, the industry should evolve to support faster testing, what Aslam called a “surmountable obstacle.”

The NJ Sharing Network, which obtained the heart that was offered to Bob Naedele, wrote in a public comment that it opposes the proposal for Chagas testing, saying that it will “increase the financial burden, process, and time” needed to evaluate donors.

Kasper Statz, director of systems integration at OurLegacy, an organ procurement organization in Florida, said that additional costs for testing shouldn’t be a major concern. “In the world of the things we pay for, testing is not that expensive,” especially compared to the cost of treating a patient who receives an infected organ, he said. OurLegacy, which covers Orlando and parts of central Florida, already screens for Chagas based on the donor’s history and risk profile. (So far, OurLegacy hasn’t found any positive donors.)

Donor Network of Arizona said the Chagas test costs it less than $100, with extra fees for expedited results. “We continue to test because the cost of the test — both financial and operational — is relatively low in Arizona compared to the risk that an inadvertent transmission of Chagas disease could pose to an organ recipient,” said Geraghty, the network’s vice president of clinical services.

Cheryl Naedele said she wants the Organ Procurement and Transplantation Network to mandate that Chagas screenings be completed before any transplants. “Knowing what I know now, I would never take a Chagas-infected heart,” she said. “If I found out after the fact, I’d be furious.”

In the case of Bob Naedele’s transplant, the donor was on life support, so Cheryl thinks there would have been time to run the test.

Gary Mignone, a spokesperson for the NJ Sharing Network, said, “It is the practice of New Jersey Sharing Network to follow all applicable guidelines and regulatory requirements with regard to organ donation, and we work closely with members of the transplant community to save lives.”

Cheryl Naedele at her home. “He went through months and months and months of suffering,” Cheryl said of her husband, Bob. “And I think nobody should ever have to go through that.” (Yehyun Kim for ProPublica)

The fact that some organ procurement organizations screen for Chagas and some don’t may be a source of confusion for medical teams treating transplant patients.

Dr. Eliahu Bishburg, an infectious disease specialist at Newark Beth Israel who was part of Naedele’s medical team, said in a deposition that he had not considered Chagas as a possible cause of Naedele’s fevers, because he had thought that donor organs were already screened for it. He had read the 2011 expert working group’s report and thought that its recommendations had become policy.

Bishburg, a defendant in Cheryl Naedele’s suit, denied the malpractice allegations in a court filing. He did not respond to emails or a call requesting comment.

Newark Beth Israel’s pathology department also missed the parasite. When Bob Naedele was admitted with a fever, a doctor ordered a blood smear, in which a sample of blood is spread on a glass slide and examined under a microscope. This method can be used to detect parasites.

A lab worker, Annie Varughese, wrote in a statement that the slide looked a “little suspicious,” according to a court filing. Her statement said that she asked a colleague to review the slide, and her colleague gave the slide to pathologist Dr. Xinlai Sun to review. “Dr. Sun brought the slide back and said it was negative,” Varughese wrote. “So I entered the result as [negative] for parasites (reviewed by Dr. Sun).”

Varughese and Sun are both defendants in the malpractice case. In court filings both denied the allegations of medical malpractice. Varughese did not respond to a call seeking comment. Neither she nor Sun responded to messages left with their attorneys.

Sun said in a court filing that he “does not recall looking at the sample formally, as typically negative slides are not reviewed by the pathologist, only the technicians. However, it is possible he was asked by the technician to informally look or consult with respect to certain field(s) on the slide.”

At the Yale medical team’s urging, members of Newark Beth Israel’s pathology department looked again at the samples they had collected from Naedele during his July admission, according to a court filing. Upon reexamination, “the parasite(s) were found,” Sun said in a court filing.

Linda Kamateh, a spokesperson for Newark Beth Israel, said the hospital’s transplant team is monitoring the proposal to require Chagas screening for at-risk donors. “Should this proposal be adopted, the additional screenings would be immediately incorporated,” she said. “As always, our guiding principle is to provide our patients with the highest quality care possible.”

In 2019, a year after Naedele’s transplant, Newark Beth Israel’s program was the subject of a ProPublica investigation that revealed the heart transplant team at Newark Beth Israel kept a brain-damaged, unresponsive patient on life support to boost its lagging survival rate. A subsequent investigation by the federal Centers for Medicare and Medicaid Services found that the transplant program placed patients in “immediate jeopardy,” and the federal regulator required the hospital to implement corrective plans. Newark Beth Israel did not agree with all of the regulator’s findings, and in a statement at the time said its own review found that its post-transplant care was not unethical, was not compromised by concerns about survival rates and did not deviate from the standard of care expected of medical professionals.

Cheryl Naedele still remembers the hope and promise on Bob’s birthday in 2018, when they sped to Newark Beth Israel for his new heart. They had imagined it would bring him many more years to spend with his family; Bob had loved making cookies on Christmas and soda bread on St. Patrick’s Day with his grandchildren.

First image: Cheryl and Bob at their wedding in Fairfield, Connecticut, in 1975. Second image: Bob and his grandson, John, decorate Christmas cookies together at Bob and Cheryl’s home in 2014. (Courtesy of Cheryl Naedele)

As for his treasured dream of visiting national parks, Cheryl recalls that even while her husband’s body was faltering at Yale’s hospital, he whispered to her in a lucid moment: “When I get out of here, can we still get the RV?”

Now she’s planning to take the trip with a friend. She’ll bring along the container of Bob’s ashes. It’s far from the original plan, but it’s all she can do now.

“I’m taking him to see all the national parks,” she said.

by Caroline Chen

DOT Researchers Suggested a Way to Make Big Trucks Safer. After Meeting With Lobbyists, Agency Officials Rejected the Idea.

1 year 9 months ago

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“America’s Dangerous Trucks” is part of a collaborative investigation from FRONTLINE and ProPublica. The documentary premiered on June 13, 2023, and is available to stream in the PBS App and on FRONTLINE’s website.

In 2017, researchers at the U.S. Department of Transportation embarked on a project aimed at making America’s roads less dangerous.

They were concerned over the rising number of pedestrians and cyclists killed in collisions with trucks, which claim the lives of several hundred people every year.

The research team decided to focus on a safety device called a side guard, which is designed to reduce the hazards posed by large commercial trucks.

Made of plastic, aluminum or steel, the guards hang between the truck’s front and rear wheels, preventing pedestrians and cyclists from tumbling beneath the vehicles and getting crushed. The guards are required on trucks in dozens of countries, but they aren’t in wide use in the U.S.

When the researchers drafted their report, they included a key suggestion: The DOT should craft federal regulations requiring side guards.

A light side guard meant to prevent pedestrians or cyclists from sliding beneath a truck. A more robust side guard meant to prevent cars from sliding under a trailer. (Illustrations by Matt Twombly)

But that recommendation generated intense resistance, both internally, from department officials who challenged their findings, and externally, from trucking industry lobbyists.

Over the span of at least six months, DOT officials repeatedly discussed the ongoing research with representatives of the nation’s largest trade group for trucking companies, the American Trucking Associations. And the ATA repeatedly pressured them to alter the report.

After meeting with the ATA in December 2018, the department supervisor overseeing the project had a very direct message for the researchers. “PLEASE delete any mention of a recommendation to develop … any regulation,” he wrote in an email. “An industry standard is acceptable, but no mention of ‘regulation.’”

The industry objections resulted in a remarkable concession from the department: It allowed trucking company lobbyists to review the researchers’ preliminary report and provide comments on it.

By the time of its release in 2020, the report had been dramatically rewritten, stripped of its key conclusions — including the need to federally mandate side guards — and cut down by nearly 70 pages.

ProPublica and FRONTLINE used interviews, agency emails, meeting notes, copies of drafts and other documents to reconstruct how the report was transformed. The ATA’s ability to secretly shape government research highlights the cozy relationship between the federal officials tasked with keeping our roads safe and the trucking companies they oversee.

Quon Kwan was the DOT supervisor who oversaw the project. In an interview, he told ProPublica and FRONTLINE he regretted his role in watering down the researchers’ report. He said the department’s deference to the trucking industry ultimately contributed to his retirement in 2019.

“The red tape and politics got so bad that I couldn’t do my dedicated mission work,” Kwan said. “When your management tells you to jump, the expected response is, ‘How high?’”

On June 13, ProPublica and FRONTLINE detailed the industry’s fight against a different, heavier side guard — one designed to prevent cars and other passenger vehicles from getting wedged beneath large commercial trucks during roadway collisions. Federal regulators have been aware of these deadly incidents, called underride crashes, for decades but have taken few measures to stop them.

In a statement, the DOT said its officials had thoroughly reviewed the researchers’ report on the lighter side guards for pedestrians and cyclists, which are also known as lateral protective devices.

“Based on the lack of data to support a regulation on lateral protective devices, NHTSA suggested that the report not include a recommendation to require these devices on trucks and trailers,” said the statement, referring to the National Highway Traffic Safety Administration, the DOT agency that sets the safety standards for all cars and trucks on American roads.

Regarding the question of whether the ATA had exerted pressure to change the researchers’ report, the DOT said, “The report was issued based on the best data and research available at the time. Outside influence was not a contributing factor.”

Dan Horvath, the ATA’s vice president of safety policy, acknowledged that the group discussed side guards with the department. “ATA spends a great deal of time interacting with our regulators, including soliciting updates about their activities, providing feedback on research and potential rules so we can educate our members,” said Horvath in an emailed statement.

He did not respond to a direct question about the ATA’s role in revising the report.

The DOT’s Volpe Center, where the researchers who produced the report are based, did not directly respond to requests for comment.

As the report was going through its long and painful gestation, 20-year-old Robyn Hightman, who used they/them pronouns, was cycling 400 miles from Charlottesville, Virginia, to New York City. They’d won the attention of a couple of professional bike teams there and were leaving college to go pro. Hightman got a job as a bicycle messenger to pay bills.

Robyn Hightman during a bike ride in New York City in 2019 (Courtesy of Jay Hightman)

On June 24, 2019, their second day on the job, Hightman was making their first delivery, just a short ride from the Empire State Building. As they pedaled north in the right lane on Sixth Avenue, a parked cab merged into traffic. According to legal filings, Hightman swerved left, but was sandwiched between the taxi and a truck that was in the next lane. Hightman fell beneath the truck and was killed.

Four years later, Hightman’s father is still pushing for side guard regulations that he believes could save families from suffering as he has. But Jay Hightman said he was surprised to find he wasn’t just fighting the trucking industry, but also the federal government, which has appeared impervious to the pleas of victims’ families.

“Those with the biggest voice lobby against us because it’s too expensive to change the status quo,” he said. “But that’s not a responsible or reasonable way for our government to solve this real issue of traffic violence in our country. Robyn was crushed by the rear wheels of the truck. If there had been a sufficient side guard, she probably would be alive today.”

First image: Jay Hightman sits on the stoop of the apartment where Robyn lived before moving to New York. Second image: Loved ones have left messages on Robyn’s ghost bike in Richmond, Virginia.

A pair of tragedies in Portland, Oregon, sparked interest in side guards there.

In 2007, two cyclists died in separate crashes involving heavy trucks — one was killed by a cement mixing truck, the other by a garbage truck. The deaths prompted the city to launch a pilot program, equipping about a dozen municipal trucks with lightweight side guards.

Cities across the country began to take action, with New York, Chicago, Boston and Washington, D.C., passing ordinances. The new laws generally required the installation of the safety devices on city-owned trucks or heavy vehicles under contract with the city, such as trash trucks.

In 2017, the DOT researchers, based at the Volpe Center in Cambridge, Massachusetts, began studying side guards. The goal, according to a DOT document, was “to examine the safety benefits, costs, and feasibility” of installing the guards on more trucks across the country. The researchers aimed to “develop actionable industry and policy recommendations” that would benefit pedestrians, cyclists and other people who are especially vulnerable in collisions with trucks.

The research team — which included engineers, economists and urban planners — took a look at the global picture and began gathering information.

Dozens of countries have side guard requirements meant to protect pedestrians and cyclists. Japan first mandated them in 1979. In 1986, the United Kingdom did too. Two years later, the United Nations adopted an international side guard standard that was ratified by 43 countries and the European Union. China, Peru, Brazil and Australia have all passed regulations in the decades since.

The DOT researchers dug into 11 studies that have been done on the effectiveness of side guards in preventing deaths or injuries. The “majority of these presented evidence that side guards are effective,” wrote the researchers in the draft report.

For example, after the U.K. adopted side guard requirements, researchers observed a significant drop in the percentage of fatalities caused by collisions between cyclists and trucks traveling in the same direction, according to a 2010 study by the British nonprofit Transport Research Laboratory.

Eventually, the team made several suggestions. Among them: The DOT should work with the industry to write standards for side guards and the department should consider mandating them on heavy trucks.

In July 2018, Kwan met over video with leaders of the trucking industry gathered at the ATA’s Washington, D.C., headquarters. He told them that researchers were considering recommending side guard regulations.

The news did not go over well with the ATA, which represents America’s largest haulers, including major companies like UPS, Amazon and FedEx, which operate a mix of smaller delivery trucks and massive 18-wheelers.

After the meeting, Kwan emailed the team. “We had some heated feedback from ATA,” he wrote. “ATA was wondering how we are going to word our recommendations in the final report. They are extremely concerned about any recommendation for side guards on over-the-road, long-haul trucks that do not spend much time in the city.”

The fleet owners, Kwan noted in his email, “are very concerned about their cost, and they question the safety benefits of side guards on such trucks. They raised the issue that pedestrians and cyclists have no business being on highways,” where those trucks do most of their driving.

The feedback wasn’t entirely negative, according to Kwan. “On the other hand, they can see the need for side guards on trucks that spend most of their time in the city on city streets.”

Still, ATA leaders were concerned about any recommendations the DOT might make on side guards. They argued that such suggestions from the government might be used as a “weapon” in lawsuits filed against trucking companies.

Kwan was conciliatory, promising the group that “we would allow them to review a draft of the final report before publication.”

Martin Walker advised Kwan and the researchers on the side guard report in his role as chief of research at the Federal Motor Carrier Safety Administration, the DOT agency that licenses and monitors trucking companies.

“The industry holds a lot of sway on what rules get made, and they all hate the idea of additional rules,” said Walker, who retired in 2019. “Unfortunately, the public doesn’t have much impact on what DOT does. But there’s a very close relationship with industry, there’s no doubt about that.”

In the months after the July meeting, the ATA continued to try to influence the researchers’ conclusions.

DOT emails show that Kwan continued to chat with lobbyists about the report. That fall, he reiterated his offer to allow them to provide input on the draft report.

“As I promised, ATA will be given a chance to review and provide comments on the draft,” Kwan wrote to Ross Froat, then an executive with the ATA, on Nov. 13, 2018.

Froat wanted to know if the ATA’s input would be made public. “Will these be private comments?” he asked.

Kwan reassured him. “The public will not see your comments,” Kwan’s email promised.

On the morning of Dec. 19, 2018, three ATA representatives joined a conference call with Kwan and another DOT official to discuss the group’s suggestions on the report.

During the call, the ATA described side guards as “band-aid” solutions when there’s “less burdensome technology available,” such as electronic sensors that can keep a truck from making a dangerous lane change, according to meeting notes obtained by ProPublica and FRONTLINE. The lobbyists also noted that trucking companies “already spend $10 billion on safety technology” each year.

Kwan reassured the industry. He told them the transportation department “was not planning to regulate,” meeting notes show.

Drafts of a report by Volpe Center researchers before (left) and after government officials assured industry lobbyists that the report would not include any regulatory recommendations.

After the December meeting, Kwan sent his message urging the researchers to delete any mention of new regulations.

He ended with a plea: “My office director is emphatic about this.” Kwan’s boss was Steven Smith, who was then a director at the FMCSA, the trucking regulator. Smith did not respond to a request for comment.

Kwan told ProPublica and FRONTLINE that he’d never been asked to offer such deference to industry in his two decades of working for the department. “Normally we don’t give ATA an opportunity to review and provide comments on any of our reports,” he said.

The researchers also faced opposition from within the DOT.

Shashi Kuppa, a career official with NHTSA, became heavily involved in rewriting the report. Internal documents show that she removed key language from the final document, arguing that side guards would cost too much and would not save many lives.

Kuppa and other NHTSA officials reviewed the draft report and challenged the researchers’ conclusions. Kuppa and her colleagues believed installing the guards would cost $600 to $4,500 for each vehicle and would save a maximum of 18 lives annually.

She concluded the expense was not worth it, given the low number of lives saved.

The Volpe Center report was “bogus” and based on third-party research, she told ProPublica and FRONTLINE.

But the DOT researchers saw it quite differently. They responded with their own analysis.

DOT data doesn’t track how many people are killed by falling beneath large trucks. But the researchers examined the available data to come up with some estimates. They found that about 125 pedestrians and cyclists die each year in crashes in which side guards would be relevant. By their calculations, side guards had the potential to save the lives of up to 52 of those people, far more than Kuppa had estimated, according to DOT documents reviewed by ProPublica and FRONTLINE.

Looking at data from several U.S. side guard manufacturers, the researchers concluded the guards would cost $440 to $1,850 per truck, well below the top end of the range given by Kuppa and her colleagues.

In May 2020, the DOT published its final version of the report. It was 66 pages, about half the length of the draft. And it contained no recommendations at all — none directed toward the trucking industry and none aimed at federal regulators. It bore little resemblance to the researchers’ earlier work.

One traffic safety advocate said the report confirmed his suspicions about the relationship between the DOT and industry.

“Crash victims and survivors have long felt that the Department of Transportation is overly deferential to the interests of industry relative to improving safety outcomes,” said Zach Cahalan, executive director of the Truck Safety Coalition. “Truck safety outcomes have never been worse and we need DOT to do everything in its power to reduce truck crash deaths and injuries.”

Kuppa, who is still with NHTSA, downplayed her role in revising the research. In an interview, she described herself as a “worker bee” who is “very passionate” about road safety.

“I feel bad for the cities that have made legal requirements for side guards,” she said, arguing that most pedestrians are killed in accidents involving the front of cars and pickups, not the sides of large trucks. She said NHTSA had “limited resources” and is pursuing more cost-effective solutions to prevent pedestrians and cyclists from being injured or killed.

“I do not have a relationship with anyone at the ATA,” Kuppa said.

In a statement, the DOT said Kuppa “never spoke to anyone from the trucking industry about the report” or about the decision to eliminate the researchers’ recommendation for a side guard regulation.

By 2020, NHTSA’s top official had gotten involved with the side guard issue.

The Volpe Center maintained a webpage with data about pedestrian and cyclist fatalities, a list of side guard vendors and cities where devices were being used.

But the page was taken offline at the direction of James Owens, then NHTSA’s acting administrator, an appointee of President Donald Trump.

In an email dated Jan. 24, 2020, a Volpe researcher wrote to staff, misspelling Owens’ last name: “James Owen called regarding our side guard web page which he wants taken down.” The reason? An activist named Marianne Karth was “citing that website to pressure NHTSA to take some regulatory action on the matter,” the email said.

The page was pulled down within weeks, and it remained down for the duration of the Trump administration, one source said. Volpe has since put the information back online. Owens, who left government in 2021, did not respond to a request for comment.

Stephen Bingham is disgusted by all of this.

In 2009, Bingham’s daughter, Sylvia Bingham, 22, was cycling to her job at a nonprofit organization in Cleveland that helps women find jobs in the construction and energy fields. It was her first job since graduating college.

But she didn’t make it to the office. She was killed on her commute.

According to court records, Sylvia Bingham was biking toward a four-way intersection. Next to her was a box truck headed the same direction. When the truck driver didn’t signal a turn, she pedaled forward. The driver swung right, striking her. The impact forced her under the vehicle, smashing her skull, ribs, abdomen and pelvis.

Stephen Bingham and his wife, Françoise Blusseau, lost their daughter, Sylvia Bingham, in 2009 when, as she biked to work, she was hit by a truck. First image: Family photos of Sylvia Bingham as a baby and at her high school graduation. Second image: Since his daughter’s death, Stephen Bingham has campaigned for federal rules requiring trucks to have side guards and has joined bike safety organizations.

Stephen Bingham would like to see side guards on vehicles like the one that killed his daughter. It’s become something of a crusade for him.

But after learning about how the trucking industry was able to influence the DOT’s report, he’s become deeply skeptical of the federal safety apparatus.

“It’s hard to trust this process when the government’s been so disingenuous for so long,” said Bingham, whose dining room walls are adorned with art, including paintings done by his only child. “As long as industry profits come first, I fear this process will remain rigged.”

Do You Work for the Federal Government? ProPublica Wants to Hear From You.

Julia Ingram of FRONTLINE contributed reporting.

by Kartikay Mehrotra, ProPublica, and A.C. Thompson, ProPublica and FRONTLINE, photography by Amy Osborne for ProPublica

The Biotech Edge: How Executives and Well-Connected Investors Make Exquisitely Timed Trades in Health Care Stocks

1 year 9 months ago

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The case was a bold step for the Securities and Exchange Commission.

In 2021, the agency accused Matthew Panuwat of insider trading. Five years earlier, he had learned that his own company, a biopharma operation called Medivation, was about to get acquired. But instead of buying shares in his employer, he bought options in a competitor whose stock could be expected to rise on the news. The agency says he made $107,000 in illicit profits.

For the first and so far only time, the SEC filed a case that accuses an executive of using secret information from his own company to trade in the stock of a rival. “Biopharmaceutical industry insiders frequently have access to material nonpublic information” that impacts both their company and “other companies in the industry,” Gurbir Grewal, the commission’s director of enforcement, warned in announcing the case. “The SEC is committed to detecting and pursuing illegal trading in all forms.”

One of the cornerstones of the agency’s case against Panuwat is that Medivation had a policy that explicitly barred employees from buying or selling competitors’ stock based on company information not available to ordinary investors.

It wasn’t just Panuwat who risked violating Medivation’s policy, a trove of confidential IRS data obtained in recent years by ProPublica shows.

It was also his then-boss, CEO David Hung.

The records show Hung traded frequently in the stock and options of pharmaceutical companies, betting tens of millions of dollars on the rise or fall of shares of dozens of such firms, some of which were direct competitors with his company. Several of his trades came just before news about a rival that he could have learned about in his position as CEO. In one case, he traded ahead of news he personally announced.

The size of Hung’s trades dwarfs those that got his subordinate, who has denied any wrongdoing, in the crosshairs of the SEC.

Hung’s spokesperson acknowledged the CEO has learned nonpublic information about competitors, but denied that information ever informed any of his dozens of trades.

Earlier this year, ProPublica revealed that some executives with access to nonpublic industry information had made remarkably well-timed transactions in the securities of their direct competitors and partner companies. Securities law experts said many of the trades, which in some instances rapidly delivered millions of dollars in profit, warranted examination by regulators. The transactions ranged across sectors: from energy to toys, paper products to mortgage servicers.

But one industry stood out for both its frequency and variety of questionable trades: biotech and other relatively small health care enterprises such as medical device makers and drug companies. Dozens of wealthy executives and well-connected investors reported superbly timed stock trades in such companies, including in businesses they competed with or had personal ties to.

ProPublica has analyzed millions of transactions documented in the tax records of the wealthiest taxpayers, including many of the nation’s top business leaders. A high proportion of these trades involved plain vanilla investments, with long-term holdings of blue chip stocks and the like. But a minority of the transactions displayed what experts say are hallmarks of potentially suspicious trading.

Finding well-timed trades was only a starting point for ProPublica’s analysis. We then scrutinized transactions that occurred just before market-moving news, particularly those that represented a departure from an investor’s previous investing pattern, because they either had hardly if ever traded a particular company's stock, were trading an unusually high dollar amount or were making use of risky options for the first time. We examined whether those people had any possible nonpublic means of obtaining information about the companies whose stock rose or fell at an opportune moment. We provided anonymized descriptions of these trades to academics, former prosecutors and former SEC officials, and focused on those they said should have garnered the attention of regulators.

Among the notable examples:

The chairman of a biotech company bought shares in a corporate partner just as the partner was reaching the final stages of secret negotiations to be purchased.

The chairman of a bone health company made aggressive bets on a medical technology firm run by an adviser to his board just before its sales took off, netting him $29 million in a series of options trades.

A wealthy investor with ties to a niche area of cancer research personally traded, for the first time ever, in a company in that sector just before it was taken over. He bought high-risk options that earned him a quick $1 million in profit.

An information edge can be lucrative in any industry, but especially so in the health care sector. Many of its companies are built around only one or a handful of products, making their shares particularly volatile and ripe for profit by investors with inside knowledge. Biotechs and other up-and-comers face clear make-or-break moments: Clinical trials, signals from regulators or takeover rumors can cause wild swings in share prices.

Since beginning to report on our massive trove of IRS records in 2021, ProPublica has analyzed the data and used it as the basis for a series of articles, The Secret IRS Files, that reveal the many ways in which the tax code favors the rich and how the ultrawealthy exploit those advantages.

The IRS data also included millions of records of wealthy taxpayers’ stock and options trades, provided by the brokerages that handled the trades. While the SEC routinely reviews stock trading data from brokers and exchanges, the agency does not have access to IRS data, which in many ways is more comprehensive. (A spokesperson for the SEC declined to comment for this article.)

The securities experts said there is no fixed definition of what makes a trade suspicious and worthy of further investigation. A propitious trade for a relatively small amount, for example, might still warrant scrutiny if the investor has a tie to the company. One excellently timed trade is less noteworthy if the investor frequently trades in that security. A trade with a modest return could still be problematic if it came before news the investor knew about in advance or set in motion. And even if a trader’s investment strategy in a stock wasn’t ultimately successful, a single lucrative trade could still be deemed illegal.

The experts interviewed by ProPublica about the trading patterns examined in this story said that while each should trigger closer scrutiny from regulators, the question of whether they would lead to any action would depend on a host of additional factors. They noted that stock trades are generally deemed to violate insider trading laws only when multiple elements are met. The trader must have had information, not yet publicly known, that would affect the company’s share price. And the trader, or the person who provided the tip, must have had a duty not to disclose the information or use it for personal benefit.

ProPublica’s records give no indication as to why investors made particular trades or what information they possessed. The wealthy investors named in this story either denied their trades were improper or did not comment.

The personal trading policy for Medivation, the multibillion-dollar company Hung ran, was particularly explicit. It warned its employees to be careful trading the shares of competitors because Medivation’s employees possess nonpublic information that can affect those companies’ stock prices as well. “For anyone to use such information to gain personal benefit,” the policy stated, “is illegal.”

But ProPublica’s data show Hung, who has led a number of biopharma companies and has been described in the press as a master dealmaker, risked violating the company’s policy by trading in the securities of competitors. During the decade-plus in which Hung led Medivation, most of his proceeds from securities transactions in companies other than his own involved the pharma sector.

With timely trading, he sometimes scored gains of hundreds of thousands of dollars or managed to avoid a calamitous loss. (The records show that he sometimes lost money as well.)

Securities experts with whom we described his trading patterns and high-ranking role (but not his name) said the investments appeared to show a top executive capitalizing on information not available to the average investor.

In July and August 2011, Hung’s tax records show, he sold more than a million dollars’ worth of stock in a company called Dendreon. Dendreon was then producing a promising prostate cancer therapy that Hung’s firm was competing against, working to get their own drug to market. The day after Hung sold the last of his two roughly half-million-dollar tranches of Dendreon stock in August, the company’s share price fell 67% because of poor sales and a lack of initial enthusiasm from doctors about its prostate cancer drug.

Industry experts said that when a pharmaceutical is in late-stage development, as Medivation’s drug was at the time, the company will normally have its representatives examine the competitive landscape, including surveying doctors’ offices about rival drugs. And business-side employees of companies, even competitors, frequently mingle and trade gossip at conferences.

A few months later, in October 2011, Hung again bought shares of Dendreon, but quickly made a U-turn days after, selling those shares off for about $150,000, essentially the same price he had bought them for. A week later, Hung announced that his company had learned that trials had gone so well for its own prostate cancer therapy that the drug was going to start being offered even to participants who had been given a placebo. “These results are both an important step toward making this life-extending potential treatment available to the prostate cancer community and a significant milestone for our company,” Hung said in a press release at the time.

Just as Hung announced his company’s promising results, Dendreon released lackluster quarterly earnings. Its stock fell 37%.

David Nierengarten, an analyst who covered both companies at the time, told ProPublica the earnings report caused most of the fall, but part of it could also be attributed to Medivation’s clinical trial results, which posed a threat to Dendreon’s market share. Hung’s spokesperson said that Hung did not know the outcome of his company’s clinical trials when he sold Dendreon’s shares.

Hung sold Dendreon shares on almost two dozen occasions over six years, with most of the trades for less than $150,000. Hung’s spokesperson denied he had any relevant nonpublic information when he made his Dendreon trades.

In one instance, tax records show Hung traded a competitor’s stock ahead of news he himself disclosed that experts said would likely qualify as material.

On Aug. 24, 2015, Hung announced that Medivation was acquiring a cancer-fighting medication from a company called BioMarin. The drug was one of a handful of cutting-edge new drugs that Hung hailed as an “exciting class of oncology therapeutics.”

What Hung didn’t say was that on the same day his company finalized the acquisition — but three days before the public announcement — he made a purchase in his personal stock trading account. He bought about $8 million in shares of Clovis Oncology, a company that was separately developing a drug in the same treatment category, known as “PARP inhibitors.”

After the acquisition, the pharmaceutical trade press noted that there was growing interest in this class of drugs. Hung’s deal marked the first big acquisition of a PARP inhibitor.

“Obviously all the PARPs are going to pop,” said Nierengarten, the analyst who covered Hung’s company. Clovis is a small company reliant on a small number of drugs, “so it’s really going to pop,” he said.

And it did. In the week after the Medivation agreement was announced, Hung’s stock purchase paid off: The price of Clovis shares increased by about 11%, a rise experts attributed partly to Hung’s drug acquisition.

By the time Hung sold the shares the next month, he netted $1.25 million in profit.

Hung’s spokesperson defended the trades, saying Hung did not believe Medivation’s acquisition of BioMarin’s drug would affect the share price of a company that made a drug in the same class.He also said most of the stock’s rise came in the days after the news of the acquisition, not the day of, which he said indicated Hung’s profit was attributable to other factors.

The Clovis shares that Hung bought represented the final step in what records show was a series of complex transactions involving what are known as stock options — arrangements to buy or sell a security at some future date. In April 2015, Hung started selling Clovis “put options.” That meant he was entering into a contract that gave another investor the right to sell Clovis shares to him in the near future at a specified price. It was essentially a bet by Hung that Clovis shares would remain at roughly the same price or rise (a sophisticated and unusual transaction for a typical retail investor).

In April and May, Hung sold a small number of his contracts. In June and July, he began selling more frequently and in larger quantities: 17 times as many contracts as he had sold in the previous two months. According to his spokesperson, this was around the time Hung was approached to buy BioMarin’s drug.

The expiration dates for the options were staggered. A large group of his contracts expired on the same day he finalized the drug acquisition.

At that moment, Hung had two choices, both seemingly unpleasant. According to his spokesperson, he likely could have paid cash to end the contracts, which would have resulted in an immediate loss since the options were for a higher stock price than Clovis was trading at on that day. The contracts also allowed him to buy the specified number of shares, a seemingly bad deal since he would pay anywhere from $75 to $85 per share for stock that was trading at less than $73.

But on that day, Hung knew something the market didn’t: that his company was about to announce it was buying Biomarin’s drug.

Hung bought about $8 million worth of Clovis shares. After his company’s announcement, Hung was in the black in a matter of days, even after he bought at the inflated price. The option trades had worked out beautifully. He sold the shares the next month, turning that $1.25 million profit.

Hung’s spokesperson pointed out that, taking into account all of the Clovis options he sold that year, Hung actually lost about $100,000. The time horizon for some of the contracts was much longer, with expiration dates into the following year. Hung, he said, held on to some of his contracts and ultimately lost money when the price of Clovis shares declined significantly a few months later. The spokesperson also said that someone trying to capitalize on nonpublic information could do so more efficiently by buying shares in a company rather than through a complicated series of options trades.

ProPublica described Hung’s options dealing in Clovis, without revealing his identity, to Dan Taylor, a professor at the Wharton School and a leading insider-trading expert. “The trades in question seem at best highly unethical and at worst they may be illegal,” Taylor said. “I would caution any and all executives from engaging in the behavior described here. There's significant legal jeopardy if that behavior was brought to the attention of regulators.”

Harry Sloan did not make his name in the health care industry. He came to prominence in Hollywood.

But in 2017 Sloan made a sizable bet on Juno Therapeutics, a Seattle-based biopharma company focused on cancer treatments.

Sloan had never personally invested in Juno before. There’s also no sign in his tax records, which span the years 1999 to 2019, that he purchased options to invest in other companies.

But on Dec. 14 and 15, 2017, he did both for the first time in ProPublica’s tax data. He bought more than a quarter-million dollars of Juno call options, a contract giving him the right to buy the stock at a specific price. The options were “out of the money,” meaning the price was well over what the stock was trading at at the time. The bet would pay off only if Juno stock jumped significantly.

Options, especially out-of-the-money options like the ones Sloan bought, are risky but can carry huge rewards. You can win big if the stock price rises above the purchase price set by the contract. If Amazon stock sells for $125 a share, an option to buy a share at $130 is worthless at the expiration date unless the market price jumps above $130. If Amazon stays at $125, you’ve spent money for nothing. But if it soars to $175 a share, you stand to make a lot from a small investment.

Sloan’s timing proved prescient. The public didn’t know it yet, but December 2017 was a hugely significant moment in Juno’s history. The company had been privately negotiating to sell itself to Celgene, a leader in the field of cancer treatments. On the same days that Sloan bought his options, Celgene significantly raised its offer and Juno agreed to be taken over.

When The Wall Street Journal broke the news of the imminent acquisition a month later, Juno’s share price skyrocketed from $46 a share to $69, its largest one-day increase ever, and Sloan quickly cashed in. He sold much of his first tranche of options for $677,000. In two decades of records, it was the largest sale he’d made in a security of a company where he hadn’t been an insider.

In all, he claimed more than $1.1 million in profit from his Juno trades, a 450% return on the cost of his options.

Of the 251 trading days in 2017, there were only a dozen other days where Sloan could have purchased options and seen the stock’s price increase as much as it ultimately did over the short period he held the bulk of his position.

Through a spokesperson, Sloan, who has been a prominent fundraiser for presidential candidates on both sides of the aisle, declined to answer questions from ProPublica, instead providing a brief statement: “Any insinuation of unethical or improper activity here is false, and contrary to the reputation Mr. Sloan has developed over the course of his lifetime.”

ProPublica provided an anonymized description of Sloan’s trades to a former SEC commissioner, two former SEC attorneys and two leading insider trading academics. All five said this sort of fact pattern could draw scrutiny from regulators because of how well-timed the trades were, and how anomalous compared to Sloan’s trades before and after.

"If you see out-of-the-money call options, no prior history of trading in that name, excellent timing and a large profit, generally yes, I would expect that to draw attention from regulators," former SEC Commissioner Allison Herren Lee said.

A remarkably timed trade may be even more suspicious, she said, if a trader had some sort of personal tie to the niche industry the company is in.

Though much of his career was in Hollywood — Sloan had been an entertainment lawyer and eventually became CEO of Metro-Goldwyn-Mayer — he is not without his connections to biotech and the subsector Juno was in. Sloan knew Arie Belldegrun, one of the leaders in the field of “CAR T-cell” therapy, a novel cancer treatment in which human cells are modified to attack cancer cells. It is the same niche that Juno specialized in. Sloan and Belldegrun were both active in art philanthropy, backing the same Los Angeles art museum at least as far back as 2013; Belldegrun’s wife co-hosted a VIP screening in 2011 for a movie produced by Sloan’s wife. And Sloan donated $3.2 million to Belldegrun’s lab at UCLA in 2017.

Belldegrun was previously CEO of Kite Pharma, a Juno competitor, before selling his company just months before Juno was acquired. Around the time that Sloan was investing in Juno call options, Belldegrun was starting a new CAR-T company. (Four years later, in 2021, Sloan helped take public a biological engineering firm called Ginkgo Bioworks. One of his partners in that venture was Belldegrun.)

There is no evidence that Sloan and Belldegrun ever discussed Juno. Belldegrun did not respond to repeated requests for comment.

Robert Stiller made his fortune off smoking paraphernalia and coffee. He helped launch E-Z Wider, rolling papers used for joints and cigarettes, before founding Green Mountain Coffee Roasters, the multibillion-dollar company that helped popularize K-Cup coffee pods. That role propelled him to business celebrity, as Forbes declared him “entrepreneur of the year” in 2001.

After Stiller left Green Mountain, he served as chairman of the board of AgNovos, a bone health startup. There, the board Stiller led hired a special adviser: Stephen MacMillan, an experienced medical technologies executive. By the end of 2013, MacMillan was named CEO of Hologic, another medical technology company, but he stayed on at AgNovos as a special adviser to Stiller.

Within a few months, Stiller began investing in Hologic for the first time — and aggressively.

On 33 days between March 2014 and January 2015, he bought a total of $9.8 million in call options in MacMillan’s company. Each was a win, netting him a combined $29 million in profit, almost a 300% return. Stiller’s tax records show no indication that he purchased options in companies other than Hologic and Green Mountain from 1999 to 2019.

The rise in Hologic’s share price was driven largely by revenue growth from its innovative line of mammogram devices, which are more effective than standard breast scans because they provide a three-dimensional view that helps reveal smaller tumors before they’ve grown. The company began reporting particularly strong growth from that product line in late April 2014, after Stiller’s first purchases. The excitement around the product grew from there, as the line continued to beat Wall Street’s revenue expectations and more studies affirmed its effectiveness. The company would have noticed orders picking up months before revenue numbers were announced, according to an industry expert who asked not to be named to avoid antagonizing industry contacts.

Stiller began buying call options in early March.

Reached by phone, Stiller said he invested in Hologic because he had confidence in MacMillan, but said MacMillan never shared detailed information about the company’s inner workings with him. “I would ask him, ‘How are things going?’ and he’d say, ‘Good,’” Stiller said. (MacMillan did not respond to requests for comment.)

Stiller said he thought he had purchased options in other companies during that period as well, but couldn’t name examples. He said he might have also bought shares of Hologic in addition to options, though he didn’t know when.

He acknowledged that buying call options in a company run by someone he knew, before it announced good news, “might not look good” and said that in retrospect he might have refrained. “I always have acted under the highest ethical shit, and I understand insider trading, and I would never do it, and I would never ask anybody else to do it,” Stiller said. “It’s just not in my DNA.”

Even by Stiller’s account of his discussions with MacMillan, his trades risked running afoul of the law. ProPublica described Stiller’s trades, without identifying him, to Chip Loewenson, a longtime white-collar defense attorney who has handled insider trading cases.

“What you described sounds like it could be insider trading,” Loewenson said. “Even if you take his word for it, that all he asked is how it’s going, and he says it’s going well, that could be material nonpublic information.” As Loewenson described it, a one-word answer about how a company is faring could be polite chitchat — or it could carry meaning. “Is that something a reasonable investor would want to know? If you think you're getting an honest answer, yes.”

In 2018, Jim Mullen, a veteran biopharma executive who previously was CEO of biotech powerhouse Biogen and chairman of the Biotechnology Innovation Organization, became chairman of the board of Editas Medicine, a firm based in Cambridge, Massachusetts, that uses gene editing techniques to treat rare diseases. (Mullen stepped down earlier this month after his term ended.) The publicly traded company collaborates with Celgene to use its technology to develop cancer therapies.

Mullen’s tax records show he had unsuccessfully traded in and out of Celgene before in relatively small amounts, but on Dec. 18, 2018, he made his biggest purchase ever of the company’s shares: $73,000 worth, almost as much as all his other past purchases combined.

His timing was excellent.

Celgene was at the time in secret negotiations to be acquired by pharma giant Bristol Myers Squibb. The day before Mullen bought the shares, Celgene had expanded the circle of people who knew about the takeover talks. According to subsequent SEC filings, Celgene informed an unidentified pharma company about the potential acquisition in hopes of soliciting a higher competing bid. The action also raised the risk that the secret talks might leak. (The company that was approached, which would have had to be orders of magnitude bigger than Editas to consider buying Celgene, declined to make a competing offer.)

The next day — the same day Mullen bought shares in Celgene — Celgene’s executive committee decided to move forward with Bristol Myers.

Two weeks after Mullen’s purchase, the deal was announced, sending Celgene’s shares soaring, and ultimately earning Mullen $46,000 in profit and a return of more than 60%.

Mullen and Editas did not respond to requests for comment.

Get in touch

ProPublica plans to continue reporting on the stock trading of the wealthy. If you have information about the executives mentioned in this article, or others trading in companies they have ties to, please get in touch. Robert Faturechi can be reached by email at robert.faturechi@propublica.org and by Signal or WhatsApp at 213-271-7217. Ellis Simani can be reached by email at ellis.simani@propublica.org or by Signal at 253-237-3458.

Data background and limitations

When an investor sells stocks, bonds or other securities through a broker, the firm is generally required to issue a tax form called a 1099-B, which describes the asset sold, the proceeds from the sale and the date the sale occurred. The brokerage provides copies of the 1099-B both to the investor and to the IRS. ProPublica’s universe of trades was drawn from tens of millions of these records, part of a larger set of records that formed the basis of ProPublica’s series “The Secret IRS Files.”

ProPublica’s database does not include a complete picture of all trades made by or for investors. Investments made through a separate legal entity like a partnership, for example, are not included. Additionally, 1099-B forms are produced when an asset is sold, not when it is purchased. Many records, however, did list the date the securities were acquired, so ProPublica’s reporters were often able to see a portion of an investor's purchasing activity. Securities that were purchased but not sold until recently are not included in the data.

The dataset spans roughly two decades. Trades from more recent years generally include more information because disclosure requirements have increased over the years. That additional detail allowed ProPublica to better determine how successful the individuals in our data were in the stock market. For stock bought before 2011, brokers were required to report the date it was sold and the total proceeds it generated but not the price paid.

Not all options transactions have to be reported. Purchased options bestow the right to buy or sell shares at a certain price. If they’re successful, they can be closed out in one of two ways. Instead of actually buying or selling the shares, the holder can opt for a cash payment, a common method that is supposed to be explicitly labeled as such in the type of tax forms ProPublica reviewed. Or the holder can buy the shares at the discounted price. That kind of transaction would only be reported to the IRS once the shares are sold, and when they are, they are not required to be listed as shares originally received as part of an option payout.

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Paul Kiel and Jeff Ernsthausen contributed reporting, and Doris Burke contributed research.

by Ellis Simani and Robert Faturechi

The Supreme Court Upheld the Indian Child Welfare Act. The Long Struggle to Implement the Law Continues.

1 year 9 months ago

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On Thursday, the U.S. Supreme Court upheld the 1978 Indian Child Welfare Act. The decision, by a 7-2 vote, meant that the law will continue to require giving preference to placing adoptable Native American children with Native families.

Kathryn Fort, director of the Indian Law Clinic at the Michigan State University College of Law, represented tribes who appealed after a federal judge in Texas declared ICWA unconstitutional in 2018. She’d spent months anticipating that the Supreme Court would make major changes to the law or even dismantle it.

“I was stunned,” said Fort the day after the decision.

Some legal observers noted that because the justices did not resolve the racial bias claim in the case, which is officially known as Haaland v. Brackeen, the door is open for a future challenge on those grounds. Fort said that’s nothing new.

“This was their best shot at a case,” she said, referring to ICWA opponents. “The messaging has really come through that people who are removing Native children from their family and culture, you're not doing good things for Native people.”

Although the Supreme Court let the law stand, Fort has nonetheless spent a lot of time thinking about how ICWA could be made to work better. A ProPublica investigation published the morning of the decision suggests that the law is unevenly applied across the states. The story profiled the case of Cheyenne Hinojosa, a Native American mother in South Dakota who lost her parental rights for one of her children due to the child welfare agency’s failure to follow ICWA. A ProPublica analysis found that in South Dakota, more than 700 Native American children — or about one of every 40 living in the state — experienced the termination of their parents’ rights from 2017 to 2021. It’s one of the highest rates in the country.

Kathryn Fort, director of the Indian Law Clinic at the Michigan State University College of Law (courtesy of Kathryn Fort)

Fort said that ProPublica’s findings were “unsurprising” and that there are a number of things that can be done at both the state and federal levels to try to fortify ICWA’s protections and help achieve its authors’ intent “to prevent the breakup of Indian families.”

1. Better data

Fort said the federal government has never properly tracked whether states are complying with ICWA. The Adoption and Foster Care Analysis and Reporting System is the only national dataset that describes outcomes of the child welfare system, but it doesn’t collect information about whether children are covered by ICWA.

AFCARS also doesn’t track whether components of the law are being correctly applied, or if children in state custody are being placed in Native American households. Without this data, Fort said, it’s impossible to “understand where the holes are that need patching in the country.”

In 2016, the Obama administration finalized a new rule that would have changed the collection method for AFCARS data, which for the first time would have included a category for tribal citizenship, Fort said. Along with this and dozens of new data points, the changes would have made it possible to track trends in the outcome of ICWA-eligible cases. The Trump administration withdrew those updated guidelines, and ever since then Fort’s clients have been involved in a lawsuit that argues the decision was unjustified.

According to Fort, the lawsuit is pending in a federal court of appeals while the Biden administration mulls how to proceed.

“Obviously, given that we spent over 10 years getting the 2016 rule, it’s a little frustrating that we’d have to essentially have to go through that process again,” she said.

2. Rethinking the Adoption and Safe Families Act

One issue that affects not just ICWA cases but the entire child welfare system is the impact of the 1997 Adoption and Safe Families Act. The law created strict timelines to reduce the amount of time children spend in foster care, allowing them to be adopted more quickly. Once 15 months have passed since a child has been removed from a parent, child welfare agencies in most cases must file for termination of parental rights.

A termination is the legal end to a parent’s relationship with their children.

ASFA has had a huge influence on the system. According to a recent study, the risk of a child in the U.S. having the legal relationship with their parents severed during childhood roughly doubled from 2000 to 2016.

Over the years, Fort said, ASFA has frequently collided in court with ICWA; the two laws have almost opposite intentions. ICWA asks states to go above and beyond to keep Native American parents and children together, while ASFA incentivizes speedy decisions to permanently separate them.

Last year, a ProPublica investigation found that in some states, parents can permanently lose their children in as little as six months. The story documented a rising movement among advocates and policymakers — including a former U.S. Department of Health and Human Services official for the Trump administration — to overhaul or repeal ASFA.

Central to that movement is an interest in lengthening the 15-month timeline, which opponents say was a politically negotiated window rather than a science- or policy-backed timeline.

“It was a mistake,” said Fort, who added that not only does she believe that ASFA is bad for Native American children, but “I don’t think it’s good for any children.”

3. Codifying ICWA into state laws

In the lead-up to the Supreme Court decision, advocates pushed legislatures across the country to put the tenets of ICWA into state law, preserving at least some protections on the local level if the federal law were struck down. Several states introduced ICWA-like bills, and four passed. Today, 13 states have such laws on the books.

In the last session, South Dakota’s state legislature failed to pass several ICWA-related measures, in part because lawmakers said they should wait until after the Supreme Court’s decision.

“I think it’s helpful to have a decision like this just reinforcing to states that this is not going away,” said Fort.

She said she hopes the work to pass state laws will continue, and also that states will make ICWA training for child welfare workers a priority.

4. Money for tribal ICWA departments

While ICWA gives tribes many legal powers, their ability to act is tied to resources. Some tribes have healthy economies and well-staffed ICWA units; smaller, poorer tribes may not. For instance, Hinojosa is a member of the Lower Brule Sioux Tribe in central South Dakota, which employs a single ICWA coordinator and does not currently have an attorney.

Lack of funding renders parts of ICWA moot: Tribes may have to be selective when deciding which child welfare cases to intervene in or take jurisdiction over. Even if a tribe has only a small population living on its reservation, it may have thousands of members all over the country who could potentially ask for tribal involvement in child welfare matters.

Fort said there are also “frustrating funding barriers” that may provide an incentive for a Native American family to oppose having its case moved to tribal court. Keeping the case in state court can unlock federal foster care reimbursements for a child’s relative that the tribal child welfare system can’t match.

According to Fort, the federal government has underfunded ICWA since the start. In 1977, Congress estimated that fully funding ICWA programming on reservations would cost between $26 million and $62 million per year, or about $200 million to $500 million in 2021 dollars, Fort said. In 2020, the federal Bureau of Indian Affairs ICWA program sent a total of $14.4 million to tribes nationwide.

“There’s a lot of room for advocacy in Congress to increase the funding to tribal social service systems,” said Fort. “It’s not been a priority for the federal government in years past.”

by Jessica Lussenhop

Justice Samuel Alito Took Luxury Fishing Vacation With GOP Billionaire Who Later Had Cases Before the Court

1 year 9 months ago

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In early July 2008, Samuel Alito stood on a riverbank in a remote corner of Alaska. The Supreme Court justice was on vacation at a luxury fishing lodge that charged more than $1,000 a day, and after catching a king salmon nearly the size of his leg, Alito posed for a picture. To his left, a man stood beaming: Paul Singer, a hedge fund billionaire who has repeatedly asked the Supreme Court to rule in his favor in high-stakes business disputes.

Singer was more than a fellow angler. He flew Alito to Alaska on a private jet. If the justice chartered the plane himself, the cost could have exceeded $100,000 one way.

In the years that followed, Singer’s hedge fund came before the court at least 10 times in cases where his role was often covered by the legal press and mainstream media. In 2014, the court agreed to resolve a key issue in a decade-long battle between Singer’s hedge fund and the nation of Argentina. Alito did not recuse himself from the case and voted with the 7-1 majority in Singer’s favor. The hedge fund was ultimately paid $2.4 billion.

Alito did not report the 2008 fishing trip on his annual financial disclosures. By failing to disclose the private jet flight Singer provided, Alito appears to have violated a federal law that requires justices to disclose most gifts, according to ethics law experts.

Experts said they could not identify an instance of a justice ruling on a case after receiving an expensive gift paid for by one of the parties.

“If you were good friends, what were you doing ruling on his case?” said Charles Geyh, an Indiana University law professor and leading expert on recusals. “And if you weren’t good friends, what were you doing accepting this?” referring to the flight on the private jet.

Justices are almost entirely left to police themselves on ethical issues, with few restrictions on what gifts they can accept. When a potential conflict arises, the sole arbiter of whether a justice should step away from a case is the justice him or herself.

ProPublica’s investigation sheds new light on how luxury travel has given prominent political donors — including one who has had cases before the Supreme Court — intimate access to the most powerful judges in the country. Another wealthy businessman provided expensive vacations to two members of the high court, ProPublica found. On his Alaska trip, Alito stayed at a commercial fishing lodge owned by this businessman, who was also a major conservative donor. Three years before, that same businessman flew Justice Antonin Scalia, who died in 2016, on a private jet to Alaska and paid the bill for his stay.

Such trips would be unheard of for the vast majority of federal workers, who are generally barred from taking even modest gifts.

Leonard Leo, the longtime leader of the conservative Federalist Society, attended and helped organize the Alaska fishing vacation. Leo invited Singer to join, according to a person familiar with the trip, and asked Singer if he and Alito could fly on the billionaire’s jet. Leo had recently played an important role in the justice’s confirmation to the court. Singer and the lodge owner were both major donors to Leo’s political groups.

ProPublica’s examination of Alito’s and Scalia’s travel drew on trip planning emails, Alaska fishing licenses, and interviews with dozens of people including private jet pilots, fishing guides, former high-level employees of both Singer and the lodge owner, and other guests on the trips.

ProPublica sent Alito a list of detailed questions last week, and on Tuesday, the Supreme Court’s head spokeswoman told ProPublica that Alito would not be commenting. Several hours later, The Wall Street Journal published an op-ed by Alito responding to ProPublica’s questions about the trip.

Alito said that when Singer’s companies came before the court, the justice was unaware of the billionaire’s connection to the cases. He said he recalled speaking to Singer on “no more than a handful of occasions,” and they never discussed Singer’s business or issues before the court.

Alito said that he was invited to fly on Singer’s plane shortly before the trip and that the seat “​​would have otherwise been vacant.” He defended his failure to report the trip to the public, writing that justices “commonly interpreted” the disclosure requirements to not include “accommodations and transportation for social events.”

In a statement, a spokesperson for Singer told ProPublica that Singer didn’t organize the trip and that he wasn’t aware Alito would be attending when he accepted the invitation. Singer “never discussed his business interests” with the justice, the spokesperson said, adding that at the time of trip, neither Singer nor his companies had “any pending matters before the Supreme Court, nor could Mr. Singer have anticipated in 2008 that a subsequent matter would arise that would merit Supreme Court review.”

Leo did not respond to questions about his organizing the trip but said in a statement that he “would never presume to tell” Alito and Scalia “what to do.”

Leonard Leo, center, on the 2008 fishing trip with a guide and other guests. Leo attended and helped organize the Alaska fishing vacation. (Photo obtained by ProPublica)

This spring, ProPublica reported that Justice Clarence Thomas received decades of luxury travel from another Republican megadonor, Dallas real estate magnate Harlan Crow. In a statement, Thomas defended the undisclosed trips, saying unnamed colleagues advised him that he didn’t need to report such gifts to the public. Crow also gave Thomas money in an undisclosed real estate deal and paid private school tuition for his grandnephew, who Thomas was raising as a son. Thomas reported neither transaction on his disclosure forms.

The undisclosed gifts have prompted lawmakers to launch investigations and call for ethics reform. Recent bills would impose tighter rules for justices’ recusals, require the Supreme Court to adopt a binding code of conduct and create an ethics body, which would investigate complaints. Neither a code nor an ethics office currently exists.

“We wouldn’t tolerate this from a city council member or an alderman,” Sen. Dick Durbin, an Illinois Democrat and chair of the Senate Judiciary Committee, said of Thomas in a recent hearing. “And yet the Supreme Court won’t even acknowledge it’s a problem.”

So far, the court has chafed at the prospect of such reforms. Though the court recently laid out its ethics practices in a statement signed by all nine justices, Chief Justice John Roberts has not directly addressed the recent revelations. In fact, he has repeatedly suggested Congress might not have the power to regulate the court at all.

“We Take Good Care of Him Because He Makes All the Rules”

In the 1960s in his first year at Harvard Law School, Singer was listening to a lecture by a famed liberal professor when, he later recalled, he had an epiphany: “My goodness. They’re making it up as they go along.”

It was a common sentiment among conservative lawyers, who often accuse liberal judges of activist overreach. While Singer’s career as an attorney was short-lived, his convictions about the law stayed with him for decades. After starting a hedge fund that eventually made him one of the richest people in the country, he began directing huge sums to causes on the right. That included groups, like the Federalist Society, dedicated to fostering the conservative legal movement and putting its followers on the bench.

In the last decade, Singer has contributed over $80 million to Republican political groups. He has also given millions to the Manhattan Institute, a conservative think tank where he has served as chairman since 2008. The institute regularly files friend-of-the-court briefs with the Supreme Court — at least 15 this term, including one asking the court to block student loan relief.

Singer’s interest in the courts is more than ideological. His hedge fund, Elliott Management, is best known for making investments that promise handsome returns but could require bruising legal battles. Singer has said he’s drawn to positions where you “control your own destiny, not just riding up and down with the waves of financial markets.” That can mean pressuring corporate boards to fire a CEO, brawling with creditors over the remains of a bankrupt company and suing opponents.

The fund now manages more than $50 billion in assets. “The investments are extremely shrewdly litigation-driven,” a person familiar with Singer’s fund told ProPublica. “That’s why he’s a billionaire.”

Singer’s most famous gamble eventually made its way to the Supreme Court.

In 2001, Argentina was in a devastating economic depression. Unemployment skyrocketed and deadly riots broke out in the street. The day after Christmas, the government finally went into default. For Singer, the crisis was an opportunity. As other investors fled, his fund purchased Argentine government debt at a steep discount.

Within several years, as the Argentine economy recovered, most creditors settled with the government and accepted a fraction of what the debt was originally worth. But Singer’s fund, an arm of Elliott called NML Capital, held out. Soon, they were at war: a midtown Manhattan-based hedge fund trying to impose its will on a sovereign nation thousands of miles away.

The fight played out on familiar turf for Singer: the U.S. courts. He launched an aggressive legal campaign to force Argentina to pay in full, and his personal involvement in the case attracted widespread media attention. Over 13 years of litigation, the arguments spanned what rights foreign governments have in the U.S. and whether Argentina could pay off debts to others before Singer settled his claim.

If Singer succeeded, he stood to make a fortune.

In 2007, for the first but not the last time, Singer’s fund asked the Supreme Court to intervene. A lower court had stopped Singer and another fund from seizing Argentine central bank funds held in the U.S. The investors appealed, but that October, the Supreme Court declined to take up the case.

On July 8 of the following year, Singer took Alito to Alaska on the private jet, according to emails, flight data from the Federal Aviation Administration and people familiar with the trip.

The group flew across the country to the town of King Salmon on the Alaska peninsula. They returned to the East Coast three days later.

In Alaska, they stayed at the King Salmon Lodge, a luxury fishing resort that drew celebrities, wealthy businessmen and sports stars. On July 9, one of the lodge’s pilots flew Alito and other guests around 70 miles to the west to fish the Nushagak River, known for one of the best salmon runs in the world. Snapshots from the trip show Alito in waders and an Indianapolis Grand Prix hat, smiling broadly as he holds his catch.

“Sam Alito is in the red jacket there,” one lodge worker said, as he narrated an amateur video of the justice on the water. “We take good care of him because he makes all the rules.”

Alito in Alaska with a fishing guide. He stayed at the King Salmon Lodge, a luxury fishing resort that drew celebrities, wealthy businessmen and sports stars. (Photo obtained by ProPublica)

Other guests on the trip included Leo, the Federalist Society leader, and Judge A. Raymond Randolph, a prominent conservative appellate judge for whom Leo had clerked, according to fishing licenses and interviews with lodge staff.

On another day, the group flew on one of the lodge’s bush planes to a waterfall in Katmai National Park, where bears snatch salmon from the water with their teeth. At night, the lodge’s chefs served multicourse meals of Alaskan king crab legs or Kobe filet. On the last evening, a member of Alito’s group bragged that the wine they were drinking cost $1,000 a bottle, one of the lodge’s fishing guides told ProPublica.

In his op-ed, Alito described the lodge as a “comfortable but rustic facility.” The justice said he does not remember if he was served wine, but if he was, it didn’t cost $1,000 a bottle. (Alito also pointed readers to the lodge’s website. The lodge has been sold since 2008 and is now a more downscale accommodation.)

The justice’s stay was provided free of charge by another major donor to the conservative legal movement: Robin Arkley II, the owner of a mortgage company then based in California. Arkley had recently acquired the fishing lodge, which catered to affluent tourists seeking a luxury experience in the Alaskan wilderness. A planning document prepared by lodge staff describes Alito as a guest of Arkley. Another guest on the trip told ProPublica the trip was a gift from Arkley, and two lodge employees said they were told that Alito wasn’t paying.

Arkley, who does not appear to have been involved in any cases before the court, did not respond to detailed questions for this story.

On the 2008 trip, the group visited Katmai National Park. (Mike Lyvers/Getty Images)

Alito did not disclose the flight or the stay at the fishing lodge in his annual financial disclosures. A federal law passed after Watergate requires federal officials including Supreme Court justices to publicly report most gifts. (The year before, Alito reported getting $500 of Italian food and wine from a friend, noting that his friend was unlikely to “appear before this Court.”)

The law has a “personal hospitality” exemption: If someone hosts a justice on their own property, free “food, lodging, or entertainment” don’t always have to be disclosed. But the law clearly requires disclosure for gifts of private jet flights, according to seven ethics law experts, and Alito appears to have violated it. The typical interpretation of the law required disclosure for his stay at the lodge too, experts said, since it was a commercial property rather than a vacation home. The judiciary’s regulations did not make that explicit until they were updated earlier this year.

In his op-ed, Alito said that justices “commonly interpreted” the law’s exception for hospitality “to mean that accommodations and transportation for social events were not reportable gifts.”

His op-ed pointed to language in the judiciary’s filing instructions and cited definitions from Black’s Law Dictionary and Webster’s. But he did not make reference to the judiciary’s regulations or the law itself, which experts said both clearly required disclosure for gifts of travel. ProPublica found at least six examples of other federal judges disclosing gifts of private jet travel in recent years.

Singer and Alito appeared together at a 2009 Federalist Society event. (The Federalist Society 2009 Annual Report)

“The exception only covers food, lodging and entertainment,” said Virginia Canter, a former government ethics lawyer now at the watchdog group CREW. “He’s trying to move away from the plain language of the statute and the regulation.”

The Alaska vacation was the first time Singer and Alito met, according to a person familiar with the trip. After the trip, the two appeared together at public events. When Alito spoke at the annual dinner of the Federalist Society lawyers convention the following year, the billionaire introduced him. The justice told a story about having an encounter with bears during a fishing trip with Singer, according to the legal blog Above the Law. He recalled asking himself: “Do you really want to go down in history as the first Supreme Court justice to be devoured by a bear?”

The year after that, in 2010, Alito delivered the keynote speech at a dinner for donors to the Manhattan Institute. Once again, Singer delivered a flattering introduction. “He and his small band of like-minded justices are a critical and much-appreciated bulwark of our freedom,” Singer told the crowd. “Samuel Alito is a model Supreme Court justice.”

Meanwhile, Singer and Argentina kept asking the Supreme Court to intervene in their legal fight. His fund enlisted Ted Olson, the famed appellate lawyer who represented George W. Bush in the Bush v. Gore case during the 2000 presidential election.

In January 2010, a year and a half after the Alaska vacation, the fund once again asked the high court to take up an aspect of the dispute. The court declined. In total, parties asked the court to hear appeals in the litigation eight times in the six years after the trip. In most instances, it was Singer’s adversaries filing an appeal, with Singer’s fund successfully arguing for the justices to decline the case and let stand a lower court ruling.

The Supreme Court hears a tiny portion of the many cases it’s asked to rule on each year. Under the court’s rules, cases are only accepted when at least four of the nine justices vote to take it up. The deliberations on whether to take a case are shrouded in secrecy and happen at meetings attended only by the justices. These decisions are a fundamental way the court wields power. The justices’ votes are not typically made public, so it is unclear how Alito voted on the petitions involving Singer.

As Singer’s battle with Argentina intensified, his hedge fund launched an expansive public relations and lobbying campaign. In 2012, the hedge fund even attempted to seize an Argentine navy ship docked in Ghana to secure payment from the country. (The effort was thwarted by a ruling from the International Tribunal for the Law of the Sea.) Argentina’s president labeled Singer and his fellow investors “vultures” attempting extortion; Singer complained the country was scapegoating him.

In 2014, the Supreme Court finally agreed to hear a case on the matter. It centered on an important issue: how much protection Argentina could claim as a sovereign nation against the hedge fund’s legal maneuvers in U.S. courts. The U.S. government filed a brief on Argentina’s side, warning that the case raised “extraordinarily sensitive foreign policy concerns.”

The case featured an unusual intervention by the Judicial Crisis Network, a group affiliated with Leo known for spending millions on judicial confirmation fights. The group filed a brief supporting Singer, which appears to be the only Supreme Court friend-of-the-court brief in the organization’s history.

The court ruled in Singer’s favor 7-1 with Alito joining the majority. The justice did not recuse himself from the case or from any of the other petitions involving Singer.

“The tide turned” thanks to that “decisive” ruling and another from the court, as Singer’s law firm described it. After the legal setbacks and the election of a new president in Argentina, the country finally capitulated in 2016. Singer’s fund walked away with a $2.4 billion payout, a spectacular return.

Abbe Smith, a law professor at Georgetown who co-wrote a textbook on legal and judicial ethics, said that Alito should have recused himself. If she were representing a client and learned the judge had taken a gift from the party on the other side, Smith said, she would immediately move for recusal. “If I found out after the fact, I’d be outraged on behalf of my client,” she said. “And, frankly, I’d be outraged on behalf of the legal system.”

The law that governs when justices must recuse themselves from a case sets a high but subjective standard. It requires justices to withdraw from any case when their “impartiality might reasonably be questioned.” But the court allows individual justices to interpret that requirement for themselves. Historically, they’ve almost never explained why they are or are not recusing themselves, and unlike lower court judges, their decisions cannot be appealed.

Alito articulated his own standard during his Senate confirmation process, writing that he believed in stepping away from cases when “any possible question might arise.”

In his Wall Street Journal op-ed, Alito wrote of his failure to recuse himself from Singer’s cases at the court: “It was and is my judgment that these facts would not cause a reasonable and unbiased person to doubt my ability to decide the matters in question impartially.”

Critics have long assailed the Supreme Court’s practices on this issue as both opaque and inconsistent. “The idea ‘just trust us to do the right thing’ while remaining in total secrecy is unworkable,” said Amanda Frost, a judicial ethics expert at the University of Virginia School of Law.

For Singer, appeals to the Supreme Court are an almost unavoidable result of his business model. Since the Argentina case, Singer’s funds were named parties in at least two other cases that were appealed to the court, both stemming from battles with Fortune 500 companies. One of the petitions is currently pending.

Grey Goose and Glacier Ice

The month after Singer got home from the 2008 fishing trip, he realized he had a problem. He was supposed to receive a shipment of frozen salmon from the Alaska lodge. But the fish hadn’t arrived. So the billionaire emailed an unlikely person to get to the bottom of it: Leo, the powerful Federalist Society executive.

“They've escaped!!” Singer wrote. Leo then sent an email to Arkley, the lodge owner, to track down the missing seafood.

The only clear thread connecting the prominent guests on the trip is that they all had a relationship with Leo. Leo is now a giant in judicial politics who helped handpick Donald Trump’s list of potential Supreme Court nominees and recently received a $1.6 billion donation to further his political interests. Leo’s network of political groups was in its early days, however, when he traveled with Alito to Alaska. It had run an advertising campaign supporting Alito in his confirmation fight, and Leo was reportedly part of the team that prepared Alito for his Senate hearings.

Singer and Arkley, the businessmen who provided the trip to the justice, were both significant donors to Leo’s groups at the time, according to public records and reporting by The Daily Beast. Arkley also sometimes provided Leo with one of his private planes to travel to business meetings, according to a former pilot of Arkley’s.

In his statement, Leo did not address detailed questions about the trip, but he said “no objective and well-informed observer of the judiciary honestly could believe that they decide cases in order to cull favor with friends, or in return for a free plane seat or fishing trip.”

He added that the public should wonder whether ProPublica’s coverage is “bait for reeling in more dark money from woke billionaires who want to damage this Supreme Court and remake it into one that will disregard the law by rubber stamping their disordered and highly unpopular cultural preferences.”

Arkley is a fixture in local politics in his hometown of Eureka, California, known for lashing out at city officials and for once starting his own newspaper reportedly out of disdain for the local press. By the early 2000s, he’d made a fortune buying and servicing distressed mortgages and also become a significant donor in national GOP politics.

Rob Arkley in 2013 (Andrew Goff/Lost Coast Outpost)

As his political profile rose, Arkley bragged to friends that he’d gotten to know one-third of the sitting Supreme Court justices. He told friends he had a relationship with Clarence Thomas, according to two people who were close with Arkley. And the Alito trip was not Arkley’s first time covering a Supreme Court justice’s travel to Alaska.

In June 2005, Arkley flew Scalia on his private jet to Kodiak Island, Alaska, two of Arkley’s former pilots told ProPublica. Arkley had paid to rent out a remote fishing lodge that cost $3,200 a week per person, according to the lodge’s owner, Martha Sikes.

Snapshots from the trip, found in the justice’s papers at Harvard Law School, capture Scalia knee-deep in a river as he fights to reel in a fish. Randolph, the appellate judge who was also on the later trip, joined Scalia and Arkley on the vacation, flying on the businessman’s jet.

Left: Justice Antonin Scalia in Alaska with Judge A. Raymond Randolph. Right: Scalia fishing in Alaska. (Harvard Law School Library, Historical & Special Collections)

Scalia did not report the trip on his annual filing, another apparent violation of the law, according to ethics law experts. Scalia’s travels briefly drew scrutiny in 2016 after he died while staying at the hunting ranch of a Texas businessman. Scalia had a pattern of disclosing trips to deliver lectures while not mentioning hunting excursions he took to nearby locales hosted by local attorneys and businessmen, according to a research paper published after his death.

Randolph, now a senior judge on the U.S. Court of Appeals for the D.C. Circuit, did not disclose the trip. (Nor did he disclose the later trip with Alito.) Randolph told ProPublica that when he was preparing his form for 2005, he called the judiciary’s financial disclosure office to ask about disclosing the trip. He shared his notes from the call with a staffer, which say “don’t have to report trip to Alaska with Rob Arkley & others / private jet / lodge.” Kathleen Clark, an ethics law expert at Washington University in St. Louis, said, “I don’t understand how the staff member came to that conclusion based on the language in the statute.”

On June 9, Arkley’s group chartered a boat, the Happy Hooker IV, to tour Yakutat Bay. On the way over, Scalia and Arkley discussed whether Senate Republicans, then in a contentious fight over judicial confirmations, should abolish the filibuster to move forward, according to a person traveling with them.

A photo captures Arkley and Scalia later that day gazing off the side of the boat at the famed Hubbard Glacier. At one point, a guide chiseled chunks off an iceberg and passed them to Scalia. The justice then mixed martinis from Grey Goose vodka and glacier ice.

It remains unclear how Scalia ended up in Alaska with Arkley. But the justice’s archives at Harvard Law School offer a tantalizing clue. Immediately before the fishing trip, Scalia gave a speech for the Federalist Society in Napa, California. The next day, Arkley’s plane flew from Napa to Alaska. Scalia’s papers contain a folder labeled “Federalist Society, Napa and Alaska, 2005 June 3-10,” suggesting a possible connection between the conservative organization and the fishing trip.

The contents of that folder are currently sealed, however. They will be opened to the public in 2036.

Scalia prepares glacier ice martinis. (Harvard Law School Library, Historical & Special Collections)

Do you have any tips on the Supreme Court? Justin Elliott can be reached by email at justin@propublica.org or by Signal or WhatsApp at 774-826-6240. Josh Kaplan can be reached by email at joshua.kaplan@propublica.org and by Signal or WhatsApp at 734-834-9383.

by Justin Elliott, Joshua Kaplan, Alex Mierjeski

Impeached Texas Attorney General Partnered With Troubled Businessman to Push Opioid Program

1 year 9 months ago

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A year after persuading Texas lawmakers to buy millions of child identification kits that had no proven record of success, a businessman with a troubled history found an in with the state's attorney general.

Last fall, Kenny Hansmire was tapped by Republican Attorney General Ken Paxton to be part of a coalition to combat opioid abuse that Paxton declared would “be the largest drug prevention, education, abatement and disposal campaign in U.S. history.”

Riffing off the name of a popular book about Texas football, Paxton announced the Friday Night Lights Against Opioids coalition and pilot program. The initiative would distribute 3.5 million packets at high school football games that contain a powder capable of destroying opioids when mixed with water.

Paxton didn’t provide a price tag for the effort or explain Hansmire’s exact role, but he said a partnership with the businessman’s National Child Identification Program would be important to the program’s success.

A former NFL player, Hansmire has persuaded leaders in multiple states to spend millions of dollars purchasing inkless fingerprinting kits on the promise that they could help find missing children. Texas alone allocated $5.7 million for kits over the past two years. An investigation published last month by ProPublica and The Texas Tribune found little evidence of the kits’ effectiveness and showed that the company exaggerated missing child statistics in its marketing.

The investigation also revealed that Hansmire has twice pleaded guilty to felony theft and was sanctioned by banking regulators in Connecticut in 2015 for his role in an alleged scheme to defraud or mislead investors.

Paxton has been a key ally for Hansmire. In 2020, he signed a letter to then-President Donald Trump urging him to get behind ultimately unsuccessful legislation that would approve the use of federal money to pay for the child identification kits. Hansmire later honored the attorney general at a Green Bay Packers game for his support.

For the opioid initiative, Paxton worked to connect Hansmire with Texas Comptroller Glenn Hegar, who oversees the distribution of hundreds of millions of dollars the state is set to receive after settling lawsuits with pharmaceutical companies over their roles in the opioid crisis.

Paxton discussed the initiative with Hegar, asking him to speak with its leaders, including Hansmire. On multiple occasions, Hansmire “called Comptroller Hegar to ask for funding for the Friday Night Lights program,” said the comptroller’s spokesperson, Chris Bryan.

Hegar, a Republican former state legislator who served with Paxton in the Texas Senate, declined to entertain Hansmire’s requests and explained that funding decisions will follow a formal approval process that is still being developed, Bryan said. He did not respond to additional questions.

Hansmire’s financial stake in the opioid initiative is unclear. He did not respond to questions about his role or about his requests for funding from the comptroller. He has previously defended himself and his company, asserting that the fingerprinting kits have made a difference in missing child investigations and that he resolved his financial and legal troubles.

Over the years, Hansmire has successfully leveraged his relationships with professional and college football teams in promoting his fingerprinting kits, honoring allied lawmakers and attorneys general at high-profile events such as football games.

While unveiling the opioid program last October, Paxton stood flanked by Hansmire and other former NFL players. Among them: NFL Hall of Famers Mike Singletary, who played for the Chicago Bears, and Randy White, a former Dallas Cowboy. White later participated in the launch of a similar program in Delaware alongside the state’s lieutenant governor. And last month, Mississippi’s attorney general announced the distribution of 500 free “Family Safety Kits.” Each included a child ID kit from Hansmire’s company and a drug disposal packet, which was provided by North Carolina-based DisposeRX. The company, which is also involved in the Texas and Delaware programs, lists Hansmire’s National Child ID Program as an official partner on its website.

Neither Singletary nor representatives for White or DisposeRX responded to requests for comment.

Paxton also did not respond to multiple requests for comment and to detailed questions from ProPublica and the Tribune. The news organizations requested records from Paxton’s office that could show the cost of the opioid initiative, the scope of the work and the breakdown of compensation for the companies involved. In response, the attorney general’s office released some emails, including one that contained an August 2022 letter from Paxton to Hansmire proposing to partner on the initiative. The office has fought the disclosure of other records that include communications with a lawmaker about potential legislation and claimed that it has no record of written agreements or expenditures related to the Friday Night Lights Against Opioids program.

Last month, the attorney general became one of only three state officials in Texas history to be impeached. He has been temporarily suspended while he awaits a trial in the Texas Senate on charges that include bribery, conspiracy and obstruction of justice. (Those charges are not related to the opioid program.)

The impeachment vote in the Texas House was the culmination of a probe by the lower chamber’s General Investigating Committee. In a memorandum, the panel said the inquiry was initiated by Paxton’s request for $3.3 million to cover a negotiated settlement he announced in February with four former top aides.

Those aides sued Paxton in 2020 under the state’s whistleblower law, arguing that they were illegally fired after reporting their boss to the FBI for alleged misdeeds, including bribery and leveraging the power of his office to help a political donor.

Paxton has denied wrongdoing and has dismissed his impeachment as politically motivated.

“Slower Approach”

The week after Paxton announced the proposed settlement of the suit against him, state Sen. Donna Campbell, a New Braunfels Republican, filed a bill that would transfer $10 million to the attorney general from the opioid settlement fund.

Also a supporter of Hansmire’s, Campbell authored legislation in 2021 that led to the approval of $5.7 million to provide child ID kits to elementary and middle school students across the state. (State lawmakers had been set to approve additional money this year to purchase kits, but budget negotiators nixed the funding following publication of the ProPublica-Tribune investigation.)

In this case, Campbell’s bill would direct funding to Paxton that he could use “for the purpose of prevention, education, and drug disposal awareness campaigns to include providing at-home drug disposal kits and abatement tools for children- and youth-focused populations across this state.”

A new 14-member council led by Hegar is responsible for doling out the bulk of the opioid settlement funding, though lawmakers can allocate some of the money through legislation.

A week before Campbell filed her opioid bill, Hansmire’s longtime business partner, Mark Salmans, registered a new company with the state called Friday Night Lights LLC. Little information is publicly available about the company.

Campaign finance records show Salmans has donated $6,500 to Paxton and his wife, state Sen. Angela Paxton, since late 2019. That includes a $1,000 donation to the attorney general the week after the Friday Night Lights Against Opioids announcement. He has not donated to Campbell, according to records from the same time period. Salmans and the Paxtons did not respond to questions about the new entity or their roles in the program.

Campbell also didn’t respond to questions. Her bill, which died in committee, came after both Paxtons publicly criticized Hegar for being slow to distribute the opioid settlement money. Neither Paxton mentioned the Friday Night Lights Against Opioids initiative while doing so.

“My main concern is that if we wait to use that money, we’re missing the opportunity to help people that need the help and we’re missing the opportunity to really save lives,” Ken Paxton said at a hearing in response to questions from Campbell less than two weeks before she filed her bill. Hegar has defended the pace, noting that the nature of the council’s work is unprecedented and that it needs to establish a clear, fair and transparent process to get the money out.

At a legislative hearing in late January, Hegar pointed to the sweeping corruption scandal that plagued the Cancer Prevention and Research Institute of Texas during its first few years as a reason to ensure a more deliberate process. The state agency came under fire a decade ago for doling out tens of millions of dollars in grants to politically connected applicants through a process that lacked proper scientific review. The scandal, which raised concerns about conflicts of interest and lax oversight, resulted in various resignations and reforms.

“The point is, we’re taking a slower approach to make sure we get it right,” Hegar told Angela Paxton. “That entire board was wiped away because the process that was put into place was not very thorough, and all of their reputations were tarnished.”

Opioids and Missing Children

At the October news conference where Paxton announced the Friday Night Lights Against Opioids initiative, Hansmire explained that it would employ the model pioneered by his child identification company, which got its start by distributing kits at college and professional football games.

He also linked the initiative to his child identification company by repeating the incorrect statistic he’s used to promote the company’s fingerprinting kits. Hansmire asserted that, “out of 800,000 children that are reported missing every year, 200,000 of those have an opioid issue.”

He didn’t cite a source for the figures, but they appear to come from an old Department of Justice study that was co-authored by David Finkelhor, the director of the Crimes Against Children Research Center at the University of New Hampshire. Finkelhor previously told ProPublica and the Tribune that the 800,000 figure Hansmire was using from the 24-year-old study was no longer accurate and overstated the scale of the missing children problem, in part because it included children who were missing for benign reasons such as spending the night at a friend’s house or coming home late from school. Using the inflated and outdated figure to then suggest that a quarter of those children have opioid-related problems is simply wrong, Finkelhor said.

The Department of Justice study estimated that 292,000 children who ran away or were kicked out of their homes in 1999 were “using hard drugs.” Finkelhor said the study referred to anything aside from marijuana — not just opioids — as a hard drug. He said he is not aware of anyone who formally tracks “opioid issues” among missing or runaway children.

Experts say that beyond being premised on incorrect statistics, the promotion of disposal packets as a solution for the opioid epidemic is a misguided use of resources, in large part because prescription opioids can be safely disposed of in multiple ways. According to the Food and Drug Administration, the best way to dispose of most medications, including opioids, is to drop them off at a drug take-back site. If that’s not an option, they should either be flushed down the toilet or be thrown in the trash, depending on whether they are on the FDA’s flush list.

Pushing disposal packets is a good way for a politician or legislator “to appear to be addressing the opioid crisis without actually doing anything that would upset industry,” said Dr. Andrew Kolodny, medical director for the Opioid Policy Research Collaborative at Brandeis University.

Paxton and Hansmire didn’t respond to questions about the effectiveness of the packets. But Paxton said during the October news conference that it was his “hope and prayer that this program will aid in fighting the opioid epidemic that has claimed far too many young lives across our great state.”

The attorney general’s original plan was to distribute the 3.5 million disposal packets at high school football programs across Texas in the latter part of last year. But Brian Polk, chief operating officer of the Texas High School Coaches Association, said the inaugural distribution was smaller than envisioned.

Polk, whose organization partnered with Paxton on the initiative, couldn’t remember exact numbers but said in an interview that about 10 school districts received 3,000 packets each. A much larger distribution is expected this fall, but plans are still being finalized, Polk said.

Paxton did not respond to questions about Polk’s comments or whether unsuccessful efforts to tap opioid settlement money contributed to the smaller-than-planned distribution.

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Jeremy Schwartz, of ProPublica and The Texas Tribune, and Carla Astudillo, of The Texas Tribune, contributed reporting.

by Kiah Collier

Can America’s Students Recover What They Lost During the Pandemic?

1 year 10 months ago

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This story is exempt from our Creative Commons license until Aug. 18, 2023.

Angela Wright became the principal of Fairfield Court Elementary School in Richmond, Virginia, in the fall of 2020, but she didn’t meet her students until a year later. At the start of the pandemic, Richmond had moved all of its 22,000 students to remote learning. By the time they returned to the classroom, in September 2021, after every other school district in the state, it had been 18 months since they’d been inside a school building.

For Wright, the posting at Fairfield Court was the culmination of a steady rise: from instructional assistant to teacher to assistant principal to principal. When her father saw her first monthly paycheck as a teacher, he asked, “Is this for a week?” “He said, ‘Are you sure this is what you want to do?’” she recalled. “I said, ‘Yes.’ When you see kids light up, when you see that they get it, when you see kids who were tier three or lower rise to the top ...”

Wright had previously been a principal in a rural school district, but after arriving in the Richmond system she settled for being an assistant principal for a few years. “Coming into an urban school district, I wanted to step back and take a look at their structure, their processes,” she said. Now she was eager to tackle the challenges facing the student body, which was almost entirely Black. Many of the students lived in an adjoining public-housing development, also called Fairfield Court. But Wright, in her first year, could offer guidance only at a remove. She dropped in on virtual classrooms, where students logged on from their beds or from crowded kitchen tables; often, they were not able to log on at all, because the concrete walls of their home interfered with a Wi-Fi signal. “Sometimes it was just, ‘Oh, it’s not working today,’” she told me.

When the students returned to the school building, Wright found that their needs were far greater than she could have imagined. Research released by Harvard and Stanford last fall found that Richmond’s fourth through eighth graders had lost two full years of ground in math and nearly a year and a half in reading. Even more apparent was their difficulty with basic interactions — fifth graders hadn’t been in person since third grade; second graders, since kinder­garten. “Socialization with each other was huge. How to be around each other — those are building blocks for ages 6 to 10,” Wright said. “There was a whole retraining — what does it look like when you and another student disagree? They had missed that, not being in the building.”

Richmond is a particularly stark example of what education researchers say is a nationwide crisis. Student learning across the country, as measured by many assessments, has stalled to an unprecedented degree. Researchers have pointed to a number of causes, including the trauma experienced by children who lost family members to COVID-19, but the data generally shows that the shortcomings are the greatest in districts that were slowest to reopen schools. It also shows that the falloff was far greater among Black and Hispanic students than among whites and Asians, expanding disparities that had been gradually shrinking in recent decades. “This cohort of students is going to be punished throughout their lifetime,” Eric Hanushek, an economist at Stanford, said at a conference in Arlington, Virginia, in February. He presented findings dem­on­strating that the economic consequences of pandemic-related learning loss could be far greater than those of the Great Recession.

The federal government has sent schools $190 billion in pandemic-recovery funds, and districts are using some of that money for a range of interventions — intensive tutoring, expanded summer school and after-­school programs — though they have been hampered by the shortage of teachers and tutors. Even before the pandemic, Fairfield Court and other schools in the East End of Richmond, which has high levels of poverty, had received additional resources for social workers and for math and reading coaches; the new federal funding was used to provide an extended-day program three days a week for about 40 kids. Wright appreciated the support, but she could see that more would be needed to make up the lost ground.

In Richmond, as in many other districts, the learning-loss debate has centered on time: The greatest challenge is finding extra hours for supplementary instruction. In early 2021, as it became clear that Richmond was not going to reopen its schools that spring, Jason Kamras, the superintendent of schools, shared in online forums the rudiments of a possible remedy: switching to a year-round calendar, with summer vacation limited to July, and four two-week breaks during the school year. Most students would still have 180 school days a year, but the district would select 5,000 students to receive up to 40 days of extra instruction during the breaks. Teachers who volunteered to work would be paid more.

Kamras cited a report issued by staff of the Virginia legislature which indicated that, according to recent research, a year-round calendar produced varied results over all but had clear benefits for Black students. Harris Cooper, a professor of psychology at Duke who has researched the issue, told me that, though most students suffer from a “summer slide” in math, losses in reading are bigger for students from low-income families, possibly because wealthier kids are more likely to have books around at home. He said that it made sense for districts to rethink summer break, which was a vestige of a more agricultural era and longer than in peer nations. “Our school calendar now is out of sync with the way most Americans live,” he said.

Wright, a 57-year-old Black woman, was in favor of the plan. “Having those kids start instruction early, we can get those kids to really feel good about themselves,” she said. “We need to have them here in the building.”

Angela Wright, principal of Fairfield Court Elementary School (Brian Palmer for ProPublica)

Richmond’s school board has been elected by voters since 1994, two years after Virginia became the last state to allow for direct election, rather than appointment, of board members, a system that now prevails in nearly all of the nation’s 13,000 school districts. In recent years, in Florida and elsewhere, school boards have attracted attention for culture-war skirmishes over book choices and instruction about gender and sexuality, but most of them labor in relative obscurity. Supporters of elected school boards see them as safeguards of citizen input into how taxpayer dollars are spent and how children are taught, an exceptional feature of U.S. public education that embodies the principle of local control; detractors view them as bastions of dysfunction, captured by interest groups or lacking the expertise to make decisions about pedagogy. In Richmond, the board’s nine members receive an annual stipend of $10,000; the chair, who is elected by the board, gets an extra $1,000. Meetings are held twice a month, at 6 p.m., and they often run until close to midnight, at which point public attendance, typically sparse to begin with, has dwindled to virtually nothing.

Stephanie Rizzi ran for the board in the fall of 2020. Growing up, she had bounced between her grandmother in Richmond and her mother in Caroline County, north of the city. “I grew up poor and hungry,” Rizzi said. “I can remember being thirsty, not having access to water.” Her solace came at school. “My teachers saved my life,” she said. She attended Virginia Commonwealth University in Richmond and went into education. (She is now an administrator at VCU.) She taught English in three counties, all the while trying to get a position in the Richmond schools, which her children attended. After being unable to get hired by the district, she decided to run for the board that oversaw it.

Among those whom she joined was Kenya Gibson. Gibson had lived in Richmond before attending graduate school in architecture at Yale; she moved back in the late 2000s for a job designing retail stores. She joined a local effort that was fighting for more school funding and became vice president of the PTA at her daughter’s school. When her local board seat came open in 2017, she ran for it, winning against an interim appointee who was backed by Mayor Levar Stoney and other “corporate Democrats,” as Gibson came to call various politicians and business leaders, some of whom had pushed in vain to switch the city to an appointed school board in the mid-2000s. “It’s about allowing the community to have a seat at the table,” she told me. “Not having a democratically elected school board is a scary notion.”

Seven of the board’s nine members were Black. One of the two white members, Jonathan Young — also the only man on the board — had long been in favor of switching to a year-round calendar. Young, a faculty administrator at Virginia State University, a historically Black institution, exuded an ornery independence, striking a critical stance against Kamras even as he often sided with his administration in disputes with other members. “To be quite blunt, we’re doing everything wrong,” Young told me. “It’s important to be able to say that the patient needs amputation, not just surgery.”

After Kamras unveiled the proposed calendar, hundreds of comments were submitted to the district’s online portal. At the March 15, 2021, board meeting, which was held online, Kamras’ chief of staff, Michelle Hudacsko, spent two hours reading the comments aloud. Many parents and some teachers expressed their support for the new calendar as a needed response to the pandemic closures. Meghann Kennedy, a parent, said, “It would be so beneficial for our kids, who have lost so much time.”

Other parents and teachers expressed opposition. Some cited practical concerns, such as the fact that they had already planned trips, camps or second jobs for the summer. But the overriding argument was that, after the pandemic’s upheaval, the district shouldn’t add disruption. “What students need most this summer is normalcy — time to reach out to family they’ve missed, time to breathe,” a teacher named Amy Brown said. “Asking more than that of teachers and kiddos is nonsense.” Shannon Dowling, a parent, said: “Our teachers have experienced trauma — they are running on fumes right now. Our families have experienced trauma. We need a break.”

After the comment session was over, Tracy Epp, the district’s chief academic officer, reminded the board just how dire the educational setback was shaping up to be. She presented the latest data on early elementary students, which showed a large increase in the number of children who were considered at high risk of struggling to read, especially among Black and economically disadvantaged students. More than half of all first graders were at risk, up 14 points from the previous year. “The science is clear about what it takes,” Epp said. “There’s a lot we can do during the school day, but, when we look at 50% not being on track, we’ve got to find more time to tackle these literacy issues.”

“If this doesn’t alarm everyone in the city of Richmond, I don’t know what will,” Young, the male board member, said. “If this data doesn’t say that a business-as-usual calendar is inadequate, then I don’t know what would.” Several of his colleagues also expressed dismay.

Others were more sanguine. Rizzi, the former schoolteacher, said that perhaps the district needed to help parents do more at home to teach reading. “There are some small things they could do to support their kids,” she said. “This doesn’t mean kids need to be in class forever.” Gibson, the former PTA leader, cited the opposition voiced by teachers and parents, and suggested that the district instead put the money toward improving summer school in 2022: “We owe the public to say, ‘We heard you.’”

The meeting had been going for almost five hours. Kamras was rubbing his eyes. Finally, he suggested that, if the board wasn’t ready to switch to a year-­round calendar for the coming school year, it could resolve to do so for the 2022-23 school year. “Let’s put a stake in the ground,” he said. “We have a reading crisis that is going to impact our students for the rest of their lives unless we deal with it.”

The board approved the idea, with Young the only holdout. “Congratulations, everyone,” the chairwoman, Cheryl Burke, said. “We’re going to have a traditional calendar for this school year, and then move into the 2022-23 year with added changes for year-round.”

Kamras had spent a summer during college working as a tutor in a housing development in Sacramento, his home town. He came away from the experience with two insights: that he really liked working with kids, and, he said, that “the third and fourth graders I was working with were every bit as capable as any other kids I’d been with, but had clearly not had the same opportunities that I’d had — and that just struck me as wrong.”

He joined Teach for America after college and started out as a middle-­school math teacher in Washington, D.C. In 2005, he was named National Teacher of the Year, and shortly afterward he joined the administration of D.C.’s schools chancellor at the time, Michelle Rhee, in a role focused on teacher recruitment and retention. In three years as chancellor, Rhee presided over rises in test scores while clashing with the teachers union over her efforts to cull underperforming educators.

Across the nation, the 2000s showed steady gains for students, as measured by such tests as the National Assessment of Educational Progress. Notably, the achievement gap between Black and white students narrowed. “It’s useful to remind people that things before the pandemic were improving,” Thomas Kane, an economist at the Harvard Graduate School of Education, told me. “We had been making progress.”

Kamras became superintendent of Richmond’s schools in early 2018. The district faced challenges. For one thing, many families did not enroll their kids in its schools. The city has roughly equal shares of Black and white residents, but its public school enrollment is 60% Black, 25% Hispanic and 10% white. Still, Kamras noticed that many people who had attended Richmond Public Schools and sent their children there felt a great sense of ownership. “I was struck by how much pride there is in RPS,” he told me. “It’s the engine of mobility for so many people here in the city.”

Before the pandemic, Kamras had been skeptical about a year-round calendar, but he was alarmed by the effects of virtual learning. “Three decades of gains were wiped out,” he said. “You’ll hear this now from elected leaders and others: ‘Stop talking about the pandemic, you can’t blame everything on the pandemic.’ I am most certainly not, but to ignore the impact of the pandemic and the fact that it’s going to have repercussions for years would be tantamount to sticking our heads in the ground.”

He began to see year-round school in a new light. For one thing, it seemed more workable than adding hours to the school day, given how drained many teachers felt at dismissal time. And it avoided the drawbacks of a long break for struggling students. Kane, at Harvard, noted that traditional summer school is often insufficient, because it’s typically voluntary and plagued by low attendance rates. Although paying teachers and staff for additional weeks of work was an added expense, extending the year was logistically easier than other supplements, such as hiring a whole new corps of outside tutors. “We already have the school buildings and the teachers,” Kane said.

“I shifted and said, ‘There may not be any better time than now to rip the Band-Aid off,’ ” Kamras told me. “No, it may not be perfect, but we’re going to be dealing with the impact of the closure for years to come.”

But, in the fall of 2021, some members of the school board started wavering about the year-round calendar. On Nov. 15, Kamras presented to the board several options — one with the same number of school days as the status quo, plus extra days for certain students, and others with 10 extra days for all students. The most expansive option would cost roughly $13 million a year in additional pay for teachers and staff, to come from the district’s federal recovery funds. The plan was to hold a public survey on the options.

Kamras was taken aback when several board members declared that the survey should have another option, too: the status quo. Gibson said that changing the calendar would spur teachers to quit, and that it was unfair to students. “We’re basically merging school into a full-time job,” she said. “It’s not right that Black and brown students in our district are chained to their desks essentially further into the school year while their counterparts in the counties get to play and have a summer.”

Kamras noted that the calendar would still have a six-week summer break, but several members were unmoved. “I wonder if there’s a way to address summer learning loss without adding days or going to year-round,” Rizzi said. “Is there some kind of way that we can take a creative approach and try something that isn’t going to feel like an extra job for our parents and our children?”

Kamras replied that he was simply following the directive of the board’s vote for a year-round calendar. He spoke with the tone of forced agreeableness that often characterized his contentious exchanges with the board. “I do believe that coming out of the pandemic we do owe our students more,” he said. “I do believe this is the right direction for this school division to go. I do believe this was what I was directed to do by the board.”

The survey went out with the status quo as an option, and it received the most votes, with higher support from white families than from Black ones. Kamras presented the results on Jan. 10, 2022, in the midst of another challenge: keeping schools open during the omicron wave. A week later, he proposed a traditional calendar for the coming year.

Young was the only board member to vote against the traditional calendar. “This board, when it punted on an alternative to the status quo, said that we would adopt it for the next school year,” he said. “That, I presume, did not mean anything when it was said.”

Recently, I asked Rizzi, who is now the chair of the board, about the change, and she said that her vote in the spring of 2021 was not to approve a year-round calendar but simply to study it further. She had doubted that it would actually happen, given resistance from teachers and their union, the Richmond Education Association. “I knew that the REA was mobilizing against it, and that there was going to be a lot of pushback, and teachers wouldn’t want it,” she said. “It wasn’t that we would definitely support it next year, it was that we would return to discuss it.”

Across the country, other school districts were also grappling with how to add more instructional time. Atlanta added 30 minutes to the school day. Los Angeles added four days to the school year, which it said would be optional for both students and teachers, with extra pay for teachers who took part; the teachers union objected, saying that it fell outside their contract agreement, and participation by students ended up being very low. Dallas had more success: It gave schools the option of adding up to 21 days for selected students, and 41 schools, roughly 1 in 8, decided to do so. Five others opted for an extended-year calendar for the whole school. Hopewell, which is half an hour south of Richmond and has a majority-­Black student population of slightly more than 4,000, became the first district in the state to institute a sweeping year-round calendar in 2021. In Dallas, the schools with the added days showed slightly larger learning gains; Hopewell has reported lower rates of teacher turnover now that there are more breaks throughout the year.

Other districts have gone in the opposite direction: cutting down on classroom time in the name of safeguarding student and staff mental health, an explicit priority of some of the federal funding. Spokane, Washington, for example, reduced students’ classroom time partly to give teachers more time for professional development. Marguerite Roza, a Georgetown University research professor of education policy, was sharply critical of this approach. “How can you believe that less school is an intervention for learning recovery?” she said. “You can’t imagine that less school is the remedy for having all that learning interruption. The kids aren’t even there.”

Dan Goldhaber, the director of the Center for Education Data & Research at the University of Washington, told me that one challenge to building support for added instructional time is that parents and other community members are not always aware of just how steep the drop-off has been, in part because many schools have been grading more leniently in recognition of the pandemic’s challenges. “There’s a real urgency gap,” he said. “It’s asymmetry between what we can see empirically about where kids are and what parents think, based on opinion surveys. There’s the belief that kids are doing OK, and the desire to snap back to normal. And that’s problematic, because normal seems to have gotten us back to the pre-pandemic pace of test-score growth, but the pre-pandemic pace does not make up for the pandemic, and we need to be on a much higher trajectory.”

An analysis of data from about 80% of public schools in the country has found that, in districts that went remote for 90% or more of 2020-21, the decline in math scores represented the loss of two-thirds of a year, nearly double the drop in districts that were remote for less than 10% of the year. And these numbers don’t take into account the millions of students who have vanished from the rolls entirely since the extended hiatus during which the norm of attending school eroded.

Roza detected a more depressing factor contributing to the urgency gap: People have simply grown inured to talk of underachieving schools. “The system has always had some kids failing, and now we have more,” she said. “There’s maybe a numbness to it.”

Recently, I spoke with a newly elected member of the executive board of the Richmond teachers union, Melvin Hostman, who said that it was hard to agree to Kamras’ push for additional instructional time when there were so many other problems that needed to be addressed: lack of toilet paper, school buses arriving late and widespread absenteeism among them. He added: “The whole thing about learning loss I found funny is that, if everyone was out of school, and everyone had learning loss, then aren’t we all equal? We all have a deficit.” When I noted data showing that the loss had had racially disproportionate impacts, he said, “Of course — because our society is inherently unequal.”

Hostman, who is in his sixth year of teaching high school history, said that what bothered him and his colleagues was that the pandemic had laid bare how much in society had been broken for a long time, making it possible to reorder things in a dramatic way: “Now people are saying, ‘We’re going back to the way things were before.’ But we didn’t like the way things were before.” He didn’t see extending the school year as a new approach: “They’re taking the weird policymaker position that what we’re doing isn’t working, so we need to do more of it.” He offered additional insight into why teachers were suffering low morale now that they were back in the building. As hard as remote learning was, he said, “there are many teachers who feel like the only time they had a work-life balance acceptable to them was during virtual school.” Teachers had been able to work from home, and many districts had cut back class hours to reduce screen time, giving teachers more flexibility to run errands, exercise and walk their dogs, just like other professionals doing remote work.

Now teachers were back in school daily, still cramming in class prep during their few empty periods, still bringing a lot of work home at night while many of their professional peers were enjoying hybrid schedules. “An industry that functions only because of additional labor that’s unpaid is trying to get people to return to that,” Hostman said. “And it’s difficult.”

A year after the defeat of the year-round calendar, Kamras decided to try again. His relations with the board had grown increasingly strained: In August 2022, after the latest state test scores showed the district doing even worse in math and science than it had the year before, there was speculation that the board might vote to fire him. Mayor Stoney, who is Black, had strongly backed year-round school, and he urged the board not to act rashly, saying that firing Kamras just before the start of the school year would be “catastrophic.” “No one should be surprised that prolonged virtual learning and the trauma of the pandemic would negatively impact academic outcomes,” he tweeted. “It’s why Superintendent @JasonKamras wisely proposed a year-round academic calendar. The School Board dismissed his proposal.”

This time, Kamras moved more incrementally. At a meeting this January, he told principals that he was launching a pilot program in which a few schools could adopt an extended calendar, adding 20 days by ending summer vacation in late July.

Under the terms of the pilot, which emerged a few weeks later, teachers at participating schools would receive a $10,000 bonus and some additional salary, plus $5,000 more if their school attained certain metrics. The total cost would be a little more than $1 million per school. A school could participate only if it had strong support from staff and parents. Kamras invited principals to apply; he would then winnow the list of candidates to a handful, after which principals would survey their school community to gauge receptiveness.

Angela Wright seized on the idea. The social dislocations from the pandemic were still pervasive, and included heightened levels of violence in and around the city’s schools, and frequent alerts from a monitoring system on students’ laptops that was used to detect threats to other students or to themselves. In mid-October, a 17-­year-old boy was found in a garbage can in the Fairfield Court housing development, fatally shot. “There maybe are some schools that don’t need those 20 days,” Wright told me. “But we know that, for some of our kids, having that whole summer out — it would have been better if they had been in a safe learning environment, so they can prosper.”

Allison El Koubi, the principal at Westover Hills Elementary, south of the James River, was also interested. Westover Hills had a lower rate of student poverty than Fairfield Court did, but it, too, had suffered steep drop-offs in achievement, in addition to a brush with violence: In October, a woman had been fatally shot during an altercation just outside the school shortly before afternoon dismissal; a teenager was later charged with the killing.

Like Wright, El Koubi saw the pilot program as an opportunity to build stability. “We had this huge disruption, we’re seeing increased levels of trauma in students and more need for social-­emotional learning, and there’s not enough time,” she told me. “Students with additional challenges can learn the same amount in a year as their higher-­income peers, but they tend to lose more in the summer, and that gap just keeps widening every year.” She also saw the pilot as a way for teachers to earn more money. “When I heard about how much the increase in salary or bonus would be, I thought, This is too big a decision to make on my own,” she said. “I want our staff to have a possibility to weigh in on it.”

Both principals applied for the pilot. Wright began gradually building support with her staff, but El Koubi, under the impression that principals weren’t supposed to publicize the proposal until Kamras settled on a list of candidates, held off.

On Jan. 31, the local CBS affiliate, WTVR, reported that Kamras had chosen four candidates for the pilot, including Fairfield Court and Westover Hills. The news caught teachers and staff at Westover Hills off guard, and many of them recoiled from the idea. In a straw poll conducted two days later, only 37% of employees said that they were interested in learning more about the pilot. “When it came out in such a jarring way, that created a lot of strong feelings about it immediately,” El Koubi said. “It felt like it was just too much.” She removed the school from the pilot. One teacher told me, “The thought is good — that we’re trying to combat whatever we lose from the students being gone so long in the summer — but the idea being brought so quickly was a tad bit too hasty.” He went on, “When you’re told that you have to work harder when you already work as hard as you possibly can, day to day, it’s not necessarily what you want to hear.”

At Fairfield Court, Wright charged ahead. She held a string of sessions with small groups of teachers and staff to explain the program. Together, the educators looked at the data showing the drop-off that kids had suffered during the summer of 2022, losing much of what they had gained the prior year, and started imagining better outcomes. It was “everybody believing in the same dream that we needed to move kids to the next level,” Wright said. “We all have to believe in our kids — that we can be successful in doing this.” All but two staff members voted for the pilot, so she was able to start surveying parents.

Wright also needed support from the school board, which would get a final say on the pilot. On Feb. 6, Giordana Buffo, a teacher at Fairfield Court, came to a board meeting to testify on behalf of the proposal. “Yes, this extended school year will come with some challenges for me personally, as well as many other teachers,” she said. “But, in the end, I feel like it would be beneficial to the academic success of our students and help mitigate some of the learning loss that many of our students face when they’re not in school for an extended period of time.”

Wright spoke a few minutes later, praising Fairfield Court as the “hidden gem in the East End.” She told the board about the data showing that the gains her students make during the year are often lost over the summer. “When we create the opportunity for underprivileged scholars to overcome disadvantages and find success, it levels the playing field,” she said.

The next speaker was Anne Forrester, a middle school teacher on the union’s collective-bargaining team, who, a couple of months later, was elected chapter vice president. She warned the board that the pilot might be “wasted money.” “This proposal for a 200-day calendar, it might work, sure,” she said. “But, to me, it doesn’t make sense to do that until we’ve gotten our schools up to where they need to be. You’re putting an addition on a house that has a leaky roof.”

One Tuesday in late February, I visited the Fairfield Court housing development. A few days earlier, the district had announced that schools would be closed that day, to align with surrounding suburban counties that were closing for a special congressional election. The day before had been Presidents Day, making for an unexpected four-day weekend. It was warm, and kids were milling around on the stoops and in the courtyards of the development, a collection of well-worn two-story brick buildings.

The mothers and grandmothers whom I spoke with were in favor of a year-round calendar and the 200-day pilot, casting it in terms of common sense: Kids had lost a lot during the pandemic, their summer break was longer than in much of the rest of the world and they didn’t have enough to do during it. “Other countries don’t do it the way we do it, and we’re consistently falling back on our education,” Octavia Bell, whose three daughters were in middle and high school, said. “You don’t have to reinvent the wheel if you see something working somewhere else.”

I spoke with several women on the next block who among them had about a dozen grandchildren in city schools. When I asked about the argument, made by some parents, that the shorter summer break would interfere with family trips, they scoffed, saying that few people in Fairfield Court could afford to go anywhere. Other parents “are too busy worrying about what they’re going to do when the kids are in school,” Diane Hicks-Taylor said. “‘Well, I had plans, I wanted to do this and do that.’ No, let the kids go to school!”

When it came time for Wright to survey Fairfield Court parents, she approached the task like an election campaign, reaching out to parents anywhere she could: at a coffee hour outside school, at an awards ceremony, at a soul-food lunch. She had staff call the parents who still hadn’t voted. In the end, 90% of families voted in favor of the 200-day pilot. The 21 remaining families were told that they would be able to transfer to another school if they wanted.

On March 6, Wright came back before the board to tell its members about the survey results and watch them vote on the pilot. Kenya Gibson, the former PTA leader, said that she opposed it because she wasn’t sure how it would be funded after the federal money ran out. Kamras replied that, if the pilot showed success, the city could seek funding from the state or other sources to expand it.

Only two members voted no: Gibson and a woman named Mariah White. After two years of efforts to expand instructional time, the board had finally approved such a move for one of its 54 schools. Two weeks later, the board approved the pilot for Cardinal Elementary, which has a heavily Spanish-­speaking population. This time, Rizzi voted against it, saying that she shared Gibson’s concerns about whether the bonuses for teachers at the pilot schools violated their collective-bargaining agreement. The fourth of Kamras’ original candidate schools, Overby-Sheppard Elementary, was deemed to have insufficient family support.

All told, only about 1,000 of the district’s 22,000 students will return to school in late July.

After the votes, Rizzi elaborated on her resistance. “‘Learning loss’ is largely a subjective term,” she told me. “Working to standardize our kids at any point in their learning process is an artificial exercise. So we experienced this pandemic, and some of our students aren’t performing as well from a standardized perspective. Characterizing it as learning loss looks at it from a deficit perspective. We should be looking at it as where we are now, and go from there.”

The day after the vote on the Fairfield Court pilot, I got a tour from Wright. The school was a hive of activity and a reminder of how much beyond academic instruction is provided by many schools: In one room, children were getting free eyeglasses; another group was off at a pool having free swim lessons. In a kindergarten classroom, a teacher was helping her students to count to 100, while, in the hallway outside, a reading coach was huddled with some second graders who had been pulled out for extra help.

Beginning next month, Fairfield Court Elementary School will implement a pilot program to extend the school year by 20 days. (Brian Palmer for ProPublica)

In her office, Wright talked excitedly about the school’s detailed plans for the extra 20 days, which will begin on July 24. “This is not just about growth, it’s about accelerating to the next level,” she said. “We want students to be 100% proficient. We want kids to continue pushing through the ceiling.”

Later, I visited Westover Hills, where Allison El Koubi told me about the things that she had hoped to accomplish during the pilot. The next day, she informed her staff that she was leaving her job as principal at the end of the year. Her departure would prove unexpectedly abrupt: On June 6, a shooting outside the graduation ceremony for one of the city’s high schools killed a graduate and his stepfather, and wounded five other people; police arrested a 19-year-old man. The district closed schools for the remainder of the week, ending the year several days early.

After speaking with El Koubi, I asked parents picking up their kids if they had been disappointed that the pilot hadn’t proceeded. One mother, Alanna Scott, said she hadn’t really seen the point of extending the year to make up for what children lost in the pandemic. “It’s past now,” she said. “Whatever they know, they should keep rolling with it. The kids don’t know what they missed.”

by Alec MacGillis