a Better Bubble™

ProPublica

Intelligence Report Says Safety Training at Chinese Government Lab Complex in Wuhan Before the Pandemic Appears Routine

2 years ago

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

A recently declassified intelligence community report on the origin of COVID-19 has taken a benign view of biosafety training that took place at a government lab in Wuhan, China, in November 2019, not long before the pandemic began there.

The safety training for staff at the Wuhan Institute of Virology was an aspect of an interim report by the Republican oversight staff of a Senate committee that last year concluded the pandemic was “more likely than not, the result of a research-related incident.” Last October, ProPublica and Vanity Fair delved into the inner workings of the team that produced that interim report and some outside experts’ views of its findings.

The intelligence report was issued in June in response to a law, passed unanimously, that required the director of national intelligence to declassify information regarding the origins of COVID-19. The report confirmed prior news accounts that the intelligence community is divided about the cause of the pandemic, but it did not provide specifics about how different agencies reached their conclusions. While some believe the virus likely first infected a human through a research-related accident, others say it’s more likely that the contagion naturally spilled over from animal to human. The report stated that “all agencies continue to assess that both a natural and laboratory-associated origin remain plausible.”

Last year’s report by the Republican oversight staff of the Senate Health, Education, Labor & Pensions Committee pointed to a November 2019 safety training at the WIV, as well as patents and procurements, as evidence of biosafety-related problems at the lab complex around the time the virus emerged in Wuhan. On Nov. 19, 2019, a senior Chinese government safety official arrived at the WIV to discuss a “complex and grave situation currently facing [bio]security work,” the report said. On the same day that the official arrived, the WIV sought to procure a costly air incinerator. The following month, WIV researchers applied for a patent for an improved device to contain hazardous gases inside a biological chamber, like ones used to transport infected animals.

In contrast, the intelligence report said the November 2019 safety training appeared to be run-of-the-mill rather than a response to a biosecurity breach. “We do not know of a specific biosafety incident at the WIV that spurred the pandemic and the WIV’s biosafety training appears routine, rather than an emergency response by China’s leadership,” said the report, which was drafted by the national intelligence officer for weapons of mass destruction and proliferation and coordinated with the intelligence community. The intelligence community agencies agreed on the underlying facts in the report but drew different conclusions from that information, according to an official familiar with the report.

The intelligence report is brief and does not mention the incinerator or device patent. It said that WIV officials in mid-2019 were “evaluating and implementing biosafety improvements, training, and procurements” in the context of Chinese biosecurity legislation.

Some WIV scientists have genetically engineered coronaviruses, the report said, but the intelligence community has no information “indicating that any WIV genetic engineering work has involved SARS-CoV-2, a close progenitor, or a backbone virus that is closely-related enough to have been the source of the pandemic.”

At the same time, the intelligence report did point to biosafety concerns. “Some WIV researchers probably did not use adequate biosafety precautions at least some of the time prior to the pandemic in handling SARS-like coronaviruses, increasing the risk of accidental exposure to viruses,” the report said.

The intelligence report confirmed previous news reports that several WIV researchers became sick in fall 2019, though it stated this was not proof that the scientists were infected through their work. The intelligence community “continues to assess that this information neither supports nor refutes either hypothesis of the pandemic’s origins because the researchers’ symptoms could have been caused by a number of diseases and some of the symptoms were not consistent with COVID-19,” the report stated.

The U.S. Centers for Disease Control and Prevention has a four-point rating system for biolabs based on the threats posed by the infectious organisms agents allowed there. Biosafety level 4, or BSL-4, labs are the most restrictive and designed to handle the most dangerous pathogens. According to the intelligence report, as of January 2019, WIV researchers were performing experiments with coronaviruses in BSL-2 labs, which have far fewer safeguards, despite knowing of “these virus’ ability to directly infect humans.”

“Separately, the WIV’s plan to conduct analysis of potential epidemic viruses from pangolin samples in fall 2019, suggests the researchers sought to isolate live viruses,” the intelligence report said.

While not revealing the evidence underlying its assessments, the report laid out the divisions within the intelligence community. The National Intelligence Council and “four other IC agencies” assess that the natural spillover of a virus from an infected animal is the most likely cause of the pandemic, according to the intelligence report. The report did not name the other four intelligence agencies.

Two federal intelligence agencies — the Department of Energy and the FBI — have landed on the other side of the bitter debate over the origins of the pandemic, assessing that a laboratory-associated incident is the most likely cause of the pandemic. The Wall Street Journal reported in February that the Department of Energy, which had previously been undecided about how the pandemic began, had come to support the lab-leak position with “low confidence” in response to new intelligence; the FBI reached its conclusion with “moderate confidence.” The intelligence report doesn’t mention the confidence levels of any agency.

While the Department of Energy and the FBI agree that the pandemic most likely resulted from a lab incident, the agencies reached the same conclusion for “different reasons,” according to the intelligence report. But the report didn’t say what those reasons were.

Although the March law required the director of national intelligence to declassify “any and all information” relating to potential links between the WIV and the origin of COVID-19, an annex to the report remains classified. According to the report, this was necessary “to protect sources and methods.”

Several Republicans were critical of the intelligence report and demanded more details.

by ProPublica

In Arizona Water Ruling, the Hopi Tribe Sees Limits on Its Future

2 years ago

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

In September 2020, the Hopi Tribe’s four-decade effort to secure its right to water culminated in a court proceeding. The outcome would determine how much water the arid reservation would receive over the next century and whether that amount would be enough for the tribe to pursue its economic ambitions. Under rules unique to Arizona, the tribe would have to justify how it would use every drop it wanted.

The monthslong ordeal in Arizona’s Superior Court unfolded in video calls over shaky internet connections.

Chairman Timothy Nuvangyaoma called it “the fight of our lives.”

The U.S. Supreme Court ruled in 1908 that reservations have an inherent right to water. In the rest of the country, courts grant tribes water based on the amount of arable land on their reservations, relying on a 1963 U.S. Supreme Court precedent. But in 2001, Arizona developed its own method that was ostensibly more flexible to individual tribes’ visions for how they wanted to use their water by examining their culture, history, economy and projected population.

This new standard offered tribes an opportunity to shape their plans for economic development and growth beyond farming. But the Hopi case, the first adjudicated under this process, showed it also came at a high cost with uncertain outcomes.

Court records show that at the trial, experts brought in by the tribe, state and corporate water users argued over how many Hopi had lived in the area going back centuries and how much water they had used for crops and livestock. They debated the correct fertility rate of Hopi women and the viability of the tribe’s economic projects. And the court examined lists of sacred springs — sites the Hopi traditionally kept secret to preserve them — to decide how much water could be drawn from them for future religious ceremonies.

The legal battle, one of the tribe’s largest expenses in recent years, resulted in May 2022 with the court awarding less than a third of the water sought by the Hopi Tribe. That was the amount needed, the court said, “to provide a permanent homeland.”

“I would define it as modern-day genocide,” Nuvangyaoma said. “Withholding water, which is life for the Hopis, until an undetermined time is really a position to kill off a tribe that’s been here since time immemorial.”

Timothy Nuvangyaoma, the tribe’s chairman. A legal battle over water has been one of the tribe’s largest expenses in recent years. (Sharon Chischilly for High Country News and ProPublica)

The trial and decision carry profound implications for other Colorado River Basin tribes seeking water, especially in Arizona, where 10 out of 22 federally recognized tribes have outstanding claims. Water awarded to these tribes often comes out of the allocation states can use, leading to inherent conflict between tribes and states over the scarce resource. If the Hopi decree survives the tribe’s planned appeal, other tribes will be subjected to the same scrutiny of their way of life, said Rhett Larson, a professor of water law at Arizona State University.

“It’s a big deal for the history of water law in the United States of America and what it means to be a Native American tribe,” Larson said.

“To Provide for Our Existence”

The Hopi Tribe has inhabited villages in northeastern Arizona for more than 1,100 years. In the time since white settlers arrived, the Hopi Tribe’s water supply has been decimated by drought and coal companies’ unchecked groundwater pumping.

The reservation, established by the U.S. government in 1882, is entirely surrounded by the Navajo Nation. Both tribes use the same aquifer, with wells reaching thousands of feet into the ground. Three-fourths of the Hopi citizens living on the reservation rely on well water tainted with high levels of arsenic, according to tribal leaders and studies conducted with the Environmental Protection Agency. A heavy metal that leads to increased risk of developing cancer, cognitive developmental disorders and diabetes, arsenic is naturally present throughout Arizona, but pumping can increase its concentration in groundwater.

A worker examines equipment at one of the wells of the Hopi arsenic mitigation project. (Sharon Chischilly for High Country News and ProPublica)

According to Dale Sinquah, a member of the Hopi Tribal Council, concerns about the aquifer make it hard not only to find drinking water, but they also limit the construction of new homes and businesses allowing the community to grow.

The only other available water on the reservation is inconsistent, running in four major streambeds that are dry most of the year. Those four washes, which empty into the Little Colorado River, have likely been impacted by drought, with two showing a “significant decreasing trend” in recent years, according to the U.S. Geological Survey.

“We need another source of water off-reservation to provide for our existence in the future,” Sinquah said.

Dale Sinquah, a Hopi Tribal Council member, said that concerns about an aquifer make it difficult to find drinking water and limit the community’s growth. (Sharon Chischilly for ProPublica and High Country News)

The case involving Hopi water rights began in 1978, when the Phelps Dodge mining company filed suit against the state and all other water users to protect its claims in the Little Colorado River watershed. Under Arizona law, the only way to quantify a single water claim was to litigate all regional claims at once. Soon, the Hopi Tribe and thousands of others with claims became parties to the case in the Superior Court of Arizona.

The tribe put the court case on hold twice as it attempted to get water through out-of-court settlements. Those talks though would have required compromising with other users making claims to that water, including the Peabody Western Coal Co., which until 2019 pumped groundwater from the aquifer for its mining operations. Between 1965 and 2005, Peabody accounted for 63% of the water pumped out of the aquifer, and 31% between 2006 and 2019, according to the United States Geological Survey. Peabody did not respond to requests for comment.

In 2012, the Hopi Tribe appeared on the brink of a settlement with the state that would have provided the tribal nation with $113 million for pipelines and other infrastructure to bring groundwater to communities on the reservation. But that effort fell through when Hopi leaders refused to sign off on a guarantee in the settlement allowing Peabody continued access to the aquifer until 2044.

“We Don’t Think That’s Feasible for You”

Unable to reach a settlement, the Hopi Tribe’s pursuit of water for its homeland continued in court through Arizona’s untested legal process.

Due to the large number of parties and the underfunding of both the state courts and Arizona’s Department of Water Resources, the case moved at a snail’s pace. The department filed a key technical report on water availability in 2008. It took until 2015 for the department to finalize it for the court.

Non-Native-Owned Coal Mines Near the Hopi Tribe’s Reservation Pumped Groundwater for Decades

Low groundwater levels contributed to increased arsenic concentrations, forcing the tribe to fight for new water resources.

Tribal reservations and trust land are from 2018 U.S. Census Bureau data. (Lucas Waldron/ProPublica)

By then, the case had been overseen by four judges. They appointed three separate special water masters, who are key to producing a proposed decree for the court. Susan Ward Harris, the water master who delivered the 2022 decree, was appointed in 2015. Harris did not respond to requests for comment.

When its day in court finally came, the Hopi Tribe explained it wanted water for an economically vibrant future with farms, cattle operations, coal mines and power plants.

More than 90 witnesses testified. They included a long line of experts — for the tribe; the federal government; the state; the northern Arizona city of Flagstaff; and the Little Colorado River Coalition, which represented small cities, utilities, ranchers and commercial interests. They discussed the tribe’s projected population, argued over the accuracy of the census count of the Hopi and offered predictions of what the numbers would be in the future.

In the end, the court went with the lowest population projections put forward by Flagstaff and the state, and it decided to only include people living on the reservation full time.

The reservation’s population, currently about 7,000, would peak at 18,255 by 2110, Harris decided.

She also decreed the tribe would get water to only irrigate 38% of farmland it planned to. It was denied water for a cattle operation, saying it “would not be feasible, practical, or provide economic benefits,” based on the court’s assessment of the current market. Harris also declared the coal operations were not “economically feasible.” Some $10 billion in economic development projects, presented in detail to the court, were deemed unrealistic.

Water for ceremonial and subsistence gardens was also denied. The court publicly listed nearly 100 sacred springs with limits on how much water the tribe was entitled to use for religious ceremonies.

In total, the tribe had requested at least 96,074 acre-feet a year of water, and the Arizona water master recommended awarding just 28,988 acre-feet, all of it from the same depleted, contaminated aquifer and seasonal streams the Hopi already use. After four decades, they ended up in the same precarious position they’d started.

Nuvangyaoma said the decree suggested the state and non-Native parties believed the tribe was incapable of carrying out its ambitious economic plans. It closed the door on future growth and, overall, was “insulting.”

By refusing to count members who live part time on the reservation as part of the population, the court ignored the connection many Native Americans have with their land, even when they don’t live there permanently, he said. Many leave so they or their children can pursue an education; for work; or to live in homes with reliable electricity and water. In short, Nuvangyaoma said, they seek the very things Hopi leaders hoped that the settlement would help bring to the reservation, and that the tribe needed water to do. But the court said that because the reservation was not growing at the speed the tribe claimed it could, it couldn’t have the water — a circular logic that hobbles the Hopi.

“It’s very frustrating that you’re told that your population will peak at a certain amount when we don’t see it that way,” Nuvangyaoma said.

The Little Colorado River (Russel Albert Daniels for ProPublica and High Country News)

Even with Harris’ decree on the books, the Hopi Tribe still faces a long road to access its allotted 28,988 acre-feet of water. Funding for dams, pipes and other infrastructure will likely require congressional action and involve more negotiation with other water users, including the Navajo Nation, which draws from the same groundwater. “I suspect I will not be alive when it comes to fruition,” Sinquah, the tribal council member, said.+

Nuvangyaoma said the tribe will still pursue its plans for economic development, but with the understanding it cannot look to the state or federal governments for support.

Cities across the Southwest have, with government support, pursued economic development and growth in the ways they want, he said, whether it’s coal mining, raising cattle or farming the desert using water brought from far away.

“So why are we putting limitations on Hopi and making a decision for us saying, ‘Oh, well, we don’t think that’s feasible for you all?’” Nuvangyaoma asked. “Who has that right to tell us what is and what is not feasible for us?”

by Umar Farooq

The U.S. Banned Farmers From Using a Brain-Harming Pesticide on Food. Why Has It Slowed a Global Ban?

2 years ago

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published. This story was co-published with the Guardian.

On his first day in office, President Joe Biden announced that his administration planned to scrutinize a Trump-era decision to allow the continued use of chlorpyrifos, a pesticide that can damage children’s brains. And with great fanfare, the Environmental Protection Agency went on to ban the use of the chemical on food.

“Ending the use of chlorpyrifos on food will help to ensure children, farmworkers, and all people are protected from the potentially dangerous consequences of this pesticide,” the head of the EPA, Michael Regan, said in his announcement of the decision in August 2021. “EPA will follow the science and put health and safety first.”

Yet when officials from around the world gathered in Rome last fall to consider whether to move forward with a proposed global ban on the pesticide, chlorpyrifos had a surprising defender: a senior official from the EPA.

Karissa Kovner, a senior EPA policy adviser, is a key leader of the U.S. delegation at a United Nations body known as the Stockholm Convention, which governs some of the worst chemicals on the planet. Chlorpyrifos is so harmful that the American government not only banned its use on food but also barred the import of fruits and vegetables grown with it. But Kovner made it clear that the U.S. was not ready to support taking the next step through the convention to provide similar protections for the rest of the world.

At the meeting, Kovner questioned whether the pesticide is harmful enough to merit being included on the Stockholm Convention’s list of banned and restricted chemicals. Some attendees said Kovner’s intervention ultimately stalled the effort.

“Her role is essentially to slow the process down and stop things from getting listed,” said Meriel Watts, a New Zealand-based scientist and pesticide expert who attended the Rome meeting and has participated in the Stockholm Convention process for years.

In an interview with ProPublica earlier this year, Kovner said that those who see her as unconcerned about public health and the environment misunderstand her job. “While I happen to work at EPA, what I represent is the United States,” said Kovner. “We are but one of many wheels — or one of many spokes in the wheels — of the U.S. government that works on” persistent pollutants that accumulate in living things.

Other spokes in that wheel include the Department of Commerce; the Office of the U.S. Trade Representative, where Kovner worked decades ago; and the Department of Agriculture, whose secretary, Thomas Vilsack, has raised questions about the EPA’s decision to cancel all food uses of chlorpyrifos.

Kovner said the rules governing restrictions under the Stockholm Convention are different than those that regulate chemicals in the U.S. She also said the positions she and her colleagues take at the Stockholm Convention are guided solely by scientific research. “We bring all of our science to the table,” she said. “It’s very hard to imagine that the convention has not been advanced significantly as a result.”

The EPA echoed Kovner’s comments that the criteria for restricting chemicals internationally are different than those EPA follows domestically. An agency spokesperson noted in a written statement that Kovner does not conduct the scientific review of chemicals. Kovner is just doing her job at the Stockholm Convention, the EPA spokesperson said, and is “a leader in advancing our U.S. domestic policies at the international level.”

For many of the experts who attend the Stockholm Convention meetings on behalf of polluted communities, though, Kovner and the whole U.S. delegation represent a puzzle. The EPA’s mission is to protect public health and the environment. “It has seemed so strange to me to see the U.S. EPA at these international meetings so determined to derail the listing of chemicals,” said Pam Miller, the executive director of Alaska Community Action on Toxics.

The U.S. is home to powerful chemical companies and lags behind much of the rest of the world in banning toxic compounds. The EPA says the U.S. delegation to the convention has supported restrictions on some chemicals. But observers say that the support has often come after countries agreed to carve out exemptions important to American industries.

“Many developing countries look at it [the Stockholm Convention] as an opportunity for greater protection,” said Joe DiGangi, a chemical expert who began attending the yearly meetings of the Stockholm Convention in 2005. “The U.S. often looks at it as a threat to their industry.”

Globe-Trotting Pollutants

More than two decades ago, the United Nations adopted the Stockholm Convention because individual countries’ restrictions could not prevent certain toxic chemicals from traveling across borders. Lofted into the air by smokestacks, gradually released from consumer products, and transported to the far reaches of the globe by water and wind, these persistent chemicals can accumulate in the environment, animals and humans. Often these pollutants wind up in the arctic, where they can be especially damaging because they get trapped in snow and ice and become less likely to dissipate. As a result, the Indigenous peoples of the arctic have high levels of these chemicals in their bodies.

Persistent organic pollutants, as these chemicals are called, lodge in fat cells, allowing them to spread from contaminated animals to anything that eats them. Humans sit at the top of this polluted food pyramid, and we can pass the chemicals to our babies through the umbilical cord before birth and through breast milk afterward.

The aim of the global treaty, which entered into force in 2004, is to protect people around the world from the most toxic of these pollutants. By banding together, countries gained increased leverage over the powerful companies that make and use the chemicals. The U.S. government, which has a long history of refusing to be bound by international treaties, has not ratified the Stockholm Convention, so it can only participate as an observer. But even without having a vote, American officials have been hugely influential.

The U.S. is known for throwing a wrench into the international convention’s efforts to restrict pollutants. “They’re usually seen as a country that raises objections to the regulation of chemicals,” said David Azoulay, a managing attorney at the Center for International Environmental Law who has attended meetings of the convention since 2011. Because the U.S. is not a voting member, Azoulay said, much of its efforts take place outside of the usual channels. “They are very active in the corridors,” he said.

Senior Environmental Protection Agency policy adviser Karissa Kovner at an environmental convention in Rome last year. (José Pinto-Bazurco/IISD/ENB)

Inside the meeting rooms, the U.S. often raises technical questions about the evidence supporting restrictions and advocates for exemptions. An EPA spokesperson told ProPublica that the U.S. “supports carefully crafted and narrowly tailored specific exemptions.”

At the most recent meeting held in late May in Geneva, more than 120 countries agreed to add two plastic additives to the list of substances slated for global elimination. The U.S. delegation went on record opposing the ban of one of them, a flame retardant chemical called Dechlorane plus, which has been shown to damage the liver and interfere with development in animal experiments.

Miller, of the Alaska environmental group, said she witnessed Kovner at an earlier meeting consulting with a representative of the aerospace industry and then suggesting exemptions to the proposed Dechlorane plus ban on their behalf.

Asked about the interactions, Kovner told ProPublica: “I talk to a wide range of stakeholders and that is absolutely 100% my job.” She added, “There are indispensable components of our NASA program that contain Dechlorane plus.” At the urging of Kovner and others, the Stockholm Convention’s member countries agreed to allow for certain uses of the flame retardant in replacement parts for the aerospace and auto industries.

Kovner was also in close contact with a powerful chemical industry trade group about the other compound, UV-328, which prevents plastic from deteriorating in sunlight. In order to be restricted under the Stockholm Convention, a pollutant must be shown to travel long distances. UV-328 was the first chemical that the convention decided met that criteria because it is transported by plastic debris that accumulates in bodies of water around the globe and in the migratory birds that eat it.

In April 2019, a representative from the American Chemistry Council, a trade group for chemical manufacturers, emailed Kovner to alert her of the proposal to consider limits on UV-328 under the Stockholm Convention based on its presence in microplastics, or pieces of plastic debris about the size of a sesame seed that accumulate in the environment and contain multiple chemicals.

“Wow — that’s quite a precedent. Holy moly,” she responded in an email, as the Greenpeace publication Unearthed has reported.

The chemical trade group representative wrote that they had seen several presentations about “getting microplastics into Stockholm.”

“Welcome to our future,” Kovner responded.

In March 2021, two months after the Stockholm Convention decided that UV-328 cleared the first hurdle to be considered for a ban, Kovner told attendees at a conference organized by the American Chemistry Council that the U.S. government disagreed with that decision and questioned the science behind it.

The following year, the U.S. spoke in favor of exemptions to a ban. And this May, the member countries of the Stockholm Convention agreed to ban UV-328 but allowed carve-outs for replacement parts for cars and industrial machines, among other products. The U.S. ultimately supported global restrictions on the chemical, an EPA spokesperson said, noting that an updated risk assessment “included a great deal of new information” and did a “good job ensuring that the questions” were answered.

The EPA spokesperson wrote, “The Agency fundamentally rejects the premise that EPA employees are inappropriately influenced by external forces.”

Doubts About Chlorpyrifos

It was reasonable to think that the U.S. might be more supportive of a global ban on chlorpyrifos. After all, while the EPA has not banned Dechlorane plus or UV-328, it has taken a strong stand on chlorpyrifos.

The Biden administration’s decision to ban the use of chlorpyrifos on food followed a controversial about-face made by the Trump EPA in 2017. Previously, the Obama EPA had decided it could no longer vouch for the safety of the pesticide on food. Resting its case on evidence that prenatal exposure to the chemical could have lasting effects on children’s brains, the agency began the process of revoking the permission farmers need to apply it to foods they grow.

But after Trump took office, the EPA halted its plans to ban the chemical. The Trump administration hadn’t disproven the research tying chlorpyrifos to ADHD, autism, lower IQ, and memory and motor problems in children, it had ignored it. President Biden’s promise to finish the job was in keeping with his campaign pitch to follow the science.

Yet just five months after the Biden EPA proudly announced it would no longer allow chlorpyrifos to be used on food, the U.S. delegation to the Stockholm Convention joined several other countries in questioning whether the pesticide lasts long enough in the environment to merit restriction under the criteria of the convention. The member countries ultimately decided chlorpyrifos did meet their criteria, and that meeting ended with a decision to move forward.

But the U.S didn’t drop it. At the September 2022 meeting in Rome, Kovner questioned whether the levels of chlorpyrifos found in arctic regions were significant enough to harm health and the environment, thereby warranting restriction under the treaty. And this time, questions she and others raised did cause the convention to delay action.

Member countries had drafted a risk profile, which presented evidence that chlorpyrifos is transported into remote regions and accumulates in plants and animals. The paper also detailed the toxic effects that very low concentrations of the pesticide can have on dogs, birds, fish, rats and bees. The most alarming section of the report lays out the evidence that chlorpyrifos can harm children who were exposed to the pesticide in utero. Even tiny amounts of the chemical can cause neurological problems.

Kovner called the risk profile into question, according to several people at the meeting.

“Every time she had the chance, she said she had doubts” about the report, said Emily Marquez, a senior scientist with Pesticide Action Network, who was part of the convention’s working group on chlorpyrifos.

There is evidence that that chlorpyrifos has spread around the world and can now be found in caribou, ringed seals, polar bears and other animals in the arctic, as well as in the ice, seawater and air of Antarctica, and in human breast milk in numerous countries, including the U.S. It is also clearly proven that the pesticide can cause serious harm.

Kovner did not question these facts, but rather their significance, according to Watts, the New Zealand-based scientist. “She sowed doubt in the minds of all the delegates about whether the levels that are being found in the arctic actually really matter at all,” Watts said of Kovner.

In an interview, Kovner acknowledged questioning whether the persistence of the pesticide met the treaty’s requirements and noted that “about 10 other countries” in addition to the U.S. raised similar concerns.

Representatives of China and India, which are both home to companies that produce chlorpyrifos, raised questions about the report, as did an official from the pesticide industry trade group CropLife International. But according to Watts, the U.S. delegation, through Kovner, presented the ultimate obstacle to approving the report.

“The U.S. amplified this opposition from India and China,” said Watts. “And in the end, a number of countries said, ‘We’re just not sure about this.’” Ultimately, the chlorpyrifos review committee decided to defer its consideration of the risk profile, and the process of restricting or banning the pesticide was delayed by a year.

“If it hadn’t been for those actions of Karissa, it probably would have gone through,” Watts said of the risk profile. “She effectively stopped it.”

In its emailed response to ProPublica, the EPA acknowledged raising concerns about whether the levels of chlorpyrifos in the arctic are high enough to cause harm and called for further research on the risk to Indigenous people. The agency pointed specifically to a 2014 study that concluded that chlorpyrifos should not be considered a persistent organic pollutant.

That study — the only one the agency cited in its response to ProPublica — was funded by a subsidiary of Dow Chemical, which at the time was the primary seller of chlorpyrifos. A co-author of that study, Canadian researcher John Giesy, worked as a consultant to Dow on a chlorpyrifos risk assessment in the late 1990s and on Dow’s comments to the EPA about chlorpyrifos, according to Giesy’s curriculum vitae. That same CV showed that, between 1996 and 1997, Giesy also led a $1 million assessment of the ecological risks of chlorpyrifos paid for by DowElanco, which was co-owned and later bought out by Dow. (Dow subsequently merged with another company and spun off its agricultural chemicals division, and the new company stopped making chlorpyrifos in 2020.)

In its written statement, the EPA said the European Union cited the Giesy study as one of the sources it considered when drafting its proposal to restrict uses of chlorpyrifos. “We feel confident that EU carefully considered the sources of information that it provided,” the spokesperson wrote.

The EPA is embroiled in litigation over its chlorpyrifos restrictions in the U.S. In a lawsuit filed in the U.S. Court of Appeals in St. Louis, growers of sugar beets, soybeans and other crops, along with an Indian chemical company that sells the pesticide, argue that the EPA’s ban is “arbitrary and capricious.” In a court filing, the EPA denied that assertion; the agency said that the use of chlorpyrifos on food was “not safe.” Still, the farmers insist that chlorpyrifos is the only tool they have to fight certain destructive pests and say the ban will cause tens of millions of dollars of crop losses.

These are the same claims the agricultural industry made for years while the EPA was weighing the safety of chlorpyrifos. Ultimately, the evidence of the environmental and health problems caused by the pesticide won the day — at least on the home front. Internationally, the fate of chlorpyrifos remains an open question.

For her part, Kovner says the U.S. is still open to the possibility of a global ban under the Stockholm Convention. “We look forward to discussions that may provide additional characterizations or clarifications to strengthen the argument for listing chlorpyrifos under that convention,” she said.

The next meeting of the international group is scheduled for October.

Do You Work With These Hazardous Chemicals? Tell Us About It.

by Sharon Lerner

Texas, New York Diverge on Requiring Miranda-Style Warnings in Child Welfare Cases

2 years ago

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

Starting this September, child protective services agents across Texas will be required to read parents their constitutional rights, the same way that police do for criminal suspects. Under a new law enacted by the state Legislature, caseworkers there will be informing parents under investigation that they have the right to remain silent, to have a lawyer present and to decline searches of their home or of their children without a court order.

The legislation will in many cases benefit Black, Hispanic and low-income families who often have their lives and homes upended by CPS officers. It was signed by Gov. Greg Abbott, a conservative Republican who previously has been criticized for pushing policies detrimental to those groups.

Meanwhile in New York state, an almost identical bill was blocked by state Senate majority leader Andrea Stewart-Cousins, a liberal Democrat. She prevented the measure, which had dozens of co-sponsors and a groundswell of grassroots support, from even getting a vote — showing how child welfare issues often defy typical partisan binaries.

Stewart-Cousins’ office declined ProPublica’s requests for comment about her reasoning.

The legislation was not advanced by leadership on the Assembly side either, though it did pass unanimously out of committee there.

Earlier this year, Stewart-Cousins and other top lawmakers in Albany received proposed changes to the bill from New York City’s Administration for Children’s Services, which is under the control of Mayor Eric Adams. The agency suggested removing the word “rights” from the bill text and watering down the list of rights that its caseworkers would have had to read to families.

The legislative efforts in both states came in the wake of a ProPublica investigation finding that child welfare workers — overwhelmingly without warrants — inspect the homes of roughly 3.5 million children nationally every year. Despite the Fourth Amendment’s protection against unreasonable searches and seizures, these government officers ransack families’ refrigerators and medicine cabinets and inspect kids’ bodies without informed consent.

They do so even if the allegation of potential child neglect that they are investigating, such as a kid missing too many days of school, has nothing to do with the condition of the home. They also sometimes use manipulative tactics, including threatening child removal or calling the police, to get inside residences, according to dozens of interviews with caseworkers, families and attorneys.

Nationwide, the searches ultimately reveal child abuse less than 5% of the time, federal data show.

The new Texas law has gotten little attention but will have a major impact on vulnerable families around the state, said Andrew Brown, associate vice president of policy at the right-leaning Texas Public Policy Foundation.

“In child welfare it’s not this clean Democratic or Republican issue,” he said, adding that the idea of reading parents their rights gained more bipartisan support as a result of not being a topic on the campaign trail.

The New York bill will be reintroduced again next year, said its lead sponsor in the state Senate, Jabari Brisport.

But the result may hinge on whether the idea finally garners support from the state’s top Democrats, including Stewart-Cousins.

“I think she should be voted out, because she doesn’t understand the basic bottom line of being a lawmaker,” said Joyce McMillan, a community organizer and leading family advocate in New York City. “Protect the constitutional rights of everyone — at minimum.”

by Eli Hager

Mississippi Says Poor Defendants Must Always Have a Lawyer. Few Courts Are Ready to Deliver.

2 years ago

This article was produced for ProPublica’s Local Reporting Network in partnership with the Northeast Mississippi Daily Journal and The Marshall Project. Sign up for Dispatches to get stories like this one as soon as they are published.

In April, the Mississippi Supreme Court changed the rules for state courts to require that poor criminal defendants have a lawyer throughout the sometimes lengthy period between arrest and indictment. The goal is to eliminate a gap during which no one is working on a defendant’s behalf.

That mandate went into effect Saturday. But few of the state’s courts have plans in place to change their procedures in a way that is likely to accomplish what the justices intended.

A survey of courts by the Daily Journal, ProPublica and The Marshall Project found that some local court officials are unaware of the new rule. Others have not decided how they will respond. Some officials suggested that their current practice of appointing lawyers only for limited purposes will fulfill the new requirement, even though those attorneys do little beyond attending early court hearings.

That reporting suggests that impoverished defendants in many Mississippi counties are likely to remain deprived of meaningful legal assistance as they wait, often in jail, for prosecutors to decide whether to pursue felony charges.

“There’s really not a plan,” said Chuck Hopkins, a judge in a county-level justice court in northeast Mississippi’s Lee County. He fears that if officials don’t come up with one, the court could be “hung out there waiting for a lawsuit to happen.”

André de Gruy, who runs Mississippi’s Office of State Public Defender and is recognized throughout the state as an expert on indigent defense, said just four of the state’s 23 circuit court districts have asked him for advice on how to comply with the new rule. He responded by developing a model process they could use.

After someone is arrested for a felony in Mississippi, that person has an initial appearance in court. A judge informs the defendant of the charges against them, sets the conditions for being released from jail, and appoints a lawyer if the defendant can’t afford one. Under current rules, in many courts that lawyer handles just the initial appearance and, in some cases, an optional preliminary hearing when evidence is presented. After that, the lawyer exits the case.

Only after the defendant is indicted, which often takes months, is another lawyer appointed. Critics have dubbed the period between lawyers the “dead zone.”

Mississippi gives district attorneys unlimited time to indict someone after an arrest, and it’s among a handful of states where defendants can be jailed indefinitely as they await indictment, according to recent research by Pam Metzger, a legal scholar who runs the Deason Criminal Justice Reform Center at Southern Methodist University’s Dedman School of Law.

“Mississippi is among the worst of the worst on this issue,” Metzger said.

Cliff Johnson, a lawyer who pushed for the revised indigent defense rule, has documented how those two factors — the lack of an indictment deadline and the lack of legal representation in the “dead zone” — can cause defendants to be jailed for months or years. Without a lawyer, defendants may have a hard time fighting their charges or striking plea deals.

Cliff Johnson, head of the Mississippi office of the MacArthur Justice Center, speaks in Hinds County Chancery Court in Jackson in May. (Rogelio V. Solis/AP)

Johnson, who leads the Mississippi office of the MacArthur Justice Center, a civil rights law firm, said advocacy organizations like his will monitor courts for compliance with the new rule.

“This structural change means nothing,” he said, “if local judges don’t create and implement new comprehensive plans for indigent defense.”

Patchwork of Court Systems Handle Indigent Defense

The new rule on indigent defense makes one key change: It says a lawyer may not withdraw from a case pending indictment until another has been appointed.

Ordering that change now looks like the easy part. Implementing it is another story, largely because of the patchwork of courts in Mississippi.

Criminal defendants may move through as many as three different court systems, each with its own system of public defense, as they go from arrest to a plea deal or verdict.

Mississippi is one of only eight states without state oversight of public defense, according to the Sixth Amendment Center, which advocates for robust indigent defense. Instead, local governments bear almost all the responsibility of providing poor criminal defendants with an attorney, as guaranteed by the Constitution.

A few local governments employ full-time public defenders. Most rely on part-time public defenders or contract with private attorneys. They all generally have high caseloads.

Now, officials in those different court systems must figure out how to ensure that defendants maintain legal representation as they move from courtroom to jail to courtroom.

To understand how courts will do that, the Daily Journal, ProPublica and The Marshall Project contacted officials in all 23 circuit court districts, most of which cover more than one county, as well as more than a dozen officials in municipal courts and separate county-level justice courts. We spoke with more than 20 judges, public defenders, prosecutors, court clerks and private defense attorneys.

Only a few circuit districts said they were working to have a new policy by Saturday, including two on the Gulf Coast and one in southwest Mississippi. Many other court officials said they don’t know exactly how they’ll coordinate among the appointed lawyers who represent defendants, sometimes briefly, in court. Some officials worry they’ll have to pay to defend people who have charges pending in a different jurisdiction.

In Tupelo, located in northeast Mississippi’s Lee County, officials say they’re struggling to figure out how to bridge the gap between the municipal court, where people charged with felonies often have their initial appearance, and circuit court, where those charges are ultimately decided.

Indigent defendants are represented in Tupelo’s municipal court by a full-time public defender, Dennis Farris. He generally makes a case for a low bond so his client can be released from jail and advises the defendant on whether to request a preliminary hearing.

But after the initial hearing is held or the defendant waives their right to it, the municipal court loses jurisdiction over felony cases.

Dennis Farris, seen here in 2019, is the public defender in the city of Tupelo’s municipal court. (Adam Robison / Northeast Mississippi Daily Journal)

City officials agree that the new rule means Farris cannot withdraw from those cases, but they want local circuit judges to agree to appoint felony public defenders immediately after the preliminary hearing is held or waived so Farris can focus on the job he’s paid to do in municipal court.

Officials in the municipal court for Southaven, in the Memphis suburbs, want their circuit judges to agree to the same thing.

Farris spends most of every workday in municipal court, handling the steady stream of misdemeanors and felony initial appearances, with little time to tend to cases that will eventually be handled by another court system.

“If I’m still on those cases, what am I supposed to do? Send a bill to the county?” he asked. “I’ll do what I can. But I’m only one person.”

Lee County’s justice court faces a different, but common, challenge in following the new rule: The private attorney who handles indigent defense typically has a limited role. Dan Davis handles only bond reductions, weeks after a defendant’s initial appearance in court.

Davis doesn’t attend initial appearances and rarely requests preliminary hearings for his clients. He acts on behalf of defendants only if they remain in jail after 30 days. If so, he contacts them to gather information to file a bond reduction motion.

“If someone bonds out, my part is basically done” except in rare circumstances, Davis said. “They’re off my list.”

Given that the justice court has limited expectations of what he must do, Davis believes he fulfills his obligations to defendants.

He anticipates little change in how he does his job under the new rule. Since he never files motions to withdraw from his cases, Davis said, he will remain a defendant’s attorney until an indictment, and the new rule will appear to be satisfied.

But he believes it is “very unusual” for a defendant to require much legal assistance after bonding out. If he were to find his workload increasing, he may not want to keep the job. Hopkins, the justice court judge, said the county may need to find a full-time public defender.

Experts say during the first few months after someone is arrested for a felony, there’s important work to be done: interviewing witnesses, securing evidence, perhaps seeking an early plea deal. If someone is jailed for months without being indicted, their attorney can ask the DA what’s taking so long or file a motion to dismiss the case.

Justin Cook, the former head of the state public defender’s association, warned attorneys against superficial adherence to the new requirement.

“You owe an indigent defendant effective representation under the Constitution,” he said. “You are not nominally their lawyer. You are their lawyer, and you have duties and obligations to them.”

An Alibi That Grew Cold

A case in Hinds County that is wending its way through federal appeals shows what can happen if an appointed lawyer doesn’t act early and aggressively to investigate a defendant’s claims of innocence.

Sedrick Russell has spent more than 15 years arguing in court filings that he lacked representation after he was arrested for a nonfatal shooting with no eyewitnesses.

Sedrick Russell claims in court filings that he didn’t have a lawyer for 14 months while he was jailed at the Raymond Detention Center in Hinds County, Mississippi, awaiting trial. That includes eight months as he awaited indictment. (Rogelio V. Solis/AP)

From his arrest in December 2006 until February 2008, Russell claims, he spoke with a public defender just once, briefly. During that time, he sent seven handwritten letters to the court alleging that his right to a speedy trial had been violated and complaining that he hadn’t spoken to an attorney.

Russell has claimed in court filings that at his preliminary hearing in January 2007, he tried to tell a lawyer with the Hinds County Public Defender’s Office about an alibi. But he didn’t get far.

Russell claims that before the shooting, he got into a car driven by a friend he knew only as Ron Ron, and the two left the site where the shooting later took place.

“The assistant public defender who came to his preliminary hearing brushed off Russell’s request to get Ron Ron to testify, telling Russell, ‘It was just a preliminary.’ She never came back,” U.S. District Judge Carlton Reeves later wrote, after Russell had appealed his conviction.

In February 2008, the state trial judge removed the Hinds County Public Defender’s Office from the case and appointed a private lawyer, Don Boykin. Within about a month, Boykin told prosecutors that Russell intended to raise an alibi defense. But Boykin never found Ron Ron.

Russell was convicted in a jury trial in January 2009 and sentenced to two life terms because he had been deemed a habitual offender.

In April 2008, Sedrick Russell wrote to a judge and complained that he’d been deprived of meaningful legal representation and had lost contact with a potential alibi witness. (Obtained by Northeast Mississippi Daily Journal)

It took years for Russell to exhaust his appeals in state court. When he took his case to federal court, Reeves ruled that Russell had been denied his Sixth Amendment right to an attorney, even though, as far as the local courts were concerned, he was represented by indigent counsel the entire time. The judge determined that Russell had been “completely abandoned by counsel” for 14 months, including eight before he was indicted.

Reeves vacated Russell’s conviction but stayed his order pending an appeal to the Fifth U.S. Circuit Court of Appeals.

In May, the appeals court reversed Reeves’ ruling and reinstated Russell’s conviction. The three-judge panel ruled that Reeves had overstepped his limited authority to overturn a state court, given a federal law that sets a high standard for doing so. The court also expressed doubt about whether Ron Ron even existed, let alone whether his testimony would’ve exonerated Russell.

Alysson Mills, Russell’s federal court-appointed attorney, said her client intends to appeal to the U.S. Supreme Court.

Cook, who handles state-level appeals for indigent defendants, said at least half of the defendants he represents claim that key witnesses or other evidence have gone missing. But he can’t introduce new evidence on appeal, and even if he could, it can be difficult to verify those claims.

“Hopefully that is what will get remedied by this new rule,” Cook said. “People can meet with their lawyers and that investigative work can happen early.”

Gail Lowery, the head of the Hinds County Public Defender’s Office, said she has discussed Reeves’ ruling with attorneys in the office. She said she stressed the need to investigate cases early and to locate key witnesses or evidence before it can be lost.

Lowery said she doesn’t know whether Russell’s public defender ignored his alibi claim. She didn’t work there at the time, and two key people involved have since died. But if his claim was ignored, Lowery said, “that will never happen again.”

Gail Lowery, chief public defender for Hinds County, testifies about the need for more public defenders during a hearing hosted by the Jackson delegation of the Mississippi Legislature at the state Capitol in March. (Rogelio V. Solis/AP)

The public defender initially assigned to a case, she said, interviews the defendant, typically within a week of an arrest, and seeks to identify witnesses and key evidence.

“That pre-indictment time, it’s critical. We’ve been doing it, but we’re shoring it up in light of the changes” to the rule on indigent defense, Lowery said. “I’m reminding everyone, we need to be vigilant.”

She acknowledged, however, that there’s limited time for investigative work given caseloads and limited resources.

Johnson, the MacArthur Center head who pushed for the rule change, knows this.

“The next step in our fight,” he said, “is to convince legislators to provide our public defenders with resources equal to those given to prosecutors and law enforcement.”

by Caleb Bedillion, Northeast Mississippi Daily Journal

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

2 years 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.

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

2 years ago

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

This article 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.

2 years ago

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

A 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.

2 years ago

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

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

2 years 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.”

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

“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.”

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

by Nicole Carr

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

2 years 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

2 years 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.

2 years ago

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

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

2 years ago

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

The 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”

2 years 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 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

2 years 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.

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

2 years ago

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

This story is exempt from our Creative Commons license until Aug. 25, 2023.

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

2 years ago

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

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

2 years ago

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

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.

2 years ago

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

“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