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Bradley Haynes and his colleagues were the last chance Union Pacific had to stop an unsafe train from leaving one of its railyards. Skilled in spotting hidden dangers, the inspectors in Kansas City, Missouri, wrote up so-called “bad orders” to pull defective cars out of assembled trains and send them for repairs.
But on Sept. 18, 2019, the area’s director of maintenance, Andrew Letcher, scolded them for hampering the yard’s ability to move trains on time.
“We’re a transportation company, right? We get paid to move freight. We don’t get paid to work on cars,” he said. “The first thing that I’m getting questioned about right now, every day, is why we’re over 200 bad orders and what we’re doing to get them down. … If I was an inspector on a train,” he continued, “I would probably let some of that nitpicky shit go.”
Haynes knew that the yard’s productivity metrics were hurting and that the repairs he ordered had a direct impact on his job security. Just that day, he’d flagged a 40-pound GPS box that was hanging by a cable off the side of a car. He worried it could snap off and fall on a colleague’s head or go hurling into a driver’s windshield. His boss greenlighted the car to leave anyway.
Haynes had started carrying a digital recorder in case he ever needed to defend himself. It captured him asking Letcher what would happen if a defect they let go wound up killing someone. The question went unaddressed as Letcher issued a warning: If they continued to hurt productivity by finding defects he deemed unnecessary, he would begin doling out punishment. He might even have to close the yard’s car shop.
“I’m trying to save your freaking jobs,” he said.
If the public thinks of America’s sprawling freight rail network at all, it typically does so when a train derails, unleashing flaming cars and noxious smoke on a community as it did this year in East Palestine, Ohio. The rail industry usually responds by vowing fixes and defending its overall record, which includes a steady decrease in major accidents. But a ProPublica investigation has found that those statistics present a knowingly incomplete picture of rail safety.
They don’t count the often-harrowing near misses, the trains that break apart, slip off the tracks or roll away from their crews with no one aboard — the accumulation of incidents that portend deeper safety risks. The government trusts the rail companies to fix the underlying problems on their own, to heed the warnings of workers like Haynes of loose hoses that could impair brakes or rotting tracks that could cause derailments. Unless those mishaps result in major injuries or costly damage, the companies don’t have to report them to anyone.
But as railroads strive to move their cargo faster, that honor system, ProPublica found, is being exploited. To squeeze the most money out of every minute, the companies are going to dangerous lengths to avoid disruptions — even those for safety repairs.
They use performance-pay systems that effectively penalize supervisors for taking the time to fix hazards and that pressure them to quash dissent, threatening and firing the very workers they hired to keep their operations safe. As a result, trains with known problems are rolling from yard to yard like ticking time bombs, getting passed down the line for the next crew to defuse — or defer.
Regulators say they can’t stop the intimidation that is feeding this dynamic. The Federal Railroad Administration can remove retaliators from working on the rails but seldom does, even if an employee alerts it to harassment in real time. Proving managers’ intent is difficult, a spokesperson said.
And the Occupational Safety and Health Administration, which enforces workplace whistleblower laws, only probes so deep. It takes the agency so long to conclude investigations that many workers, tired of waiting months for rulings, remove their complaints and sue the companies instead. Once that happens, OSHA has no legal authority to continue its investigation, barring the agency from exposing repeat bad actors or patterns in the industry’s abuse of whistleblowers.
To do what the government hasn’t, ProPublica examined 15 years’ worth of federal lawsuits against rail companies, interviewed hundreds of workers including managers, listened to hours of audio recorded by workers and pored over decades of regulatory, judicial, legislative and industry records. We identified 111 court cases in which workers alleged they had been disciplined or fired after reporting safety concerns; nearly 60% ended in settlements with the companies. Three in recent years resulted in jury verdicts of over $1 million for fired workers.
Separately, OSHA and Department of Labor administrative judges found railroad companies violated whistleblower laws in 13 cases since 2018 in which workers voiced safety concerns. Among the railroaders: one who tried to alert BNSF headquarters to broken wheels, which could have derailed trains (the company is appealing the case); two who slowed a CSX train to abide by a federal safety mandate (the company is appealing the case); and a CSX engineer who refused to work a 12-hour shift just hours after a previous shift without the period of rest required by law.
“It’s really hard to stay awake sometimes,” the engineer, Chad Hendrix, had testified, before CSX worked out a settlement with him.
The Association of American Railroads says that the industry’s sterling safety record “stands in stark contrast” to assertions made in this story. “From the day a trainee first reports on the job, railroads instill the message that every employee has a role to play in keeping themselves, their colleagues, and communities safe. Safety protocols are ingrained in daily operations, and employees are continuously empowered to report safety concerns so proactive steps can be taken to prevent a future accident,” the group said. (Read the full statement here.)
The companies mentioned in this story largely declined to comment on specific cases. (Read the full statements by Union Pacific, BNSF, Norfolk Southern and CSX.) They said they encourage their workers to voice safety concerns and tout internal hotlines where employees can do so anonymously. They say they do not tolerate retaliation.
But ProPublica found that companies retained and promoted supervisors who juries found had wrongfully terminated employees. And workers said that they had been targeted after making safety reports they thought were anonymous, or that they were ordered to stop calling safety hotlines, or that they’d simply grown apathetic, seeing hazards they had raised go unaddressed. Two BNSF employees sustained life-changing spinal injuries when their train crashed into a 6-ton tree that had fallen on the tracks; workers had warned their bosses that the tree was about to fall.
In interviews, one anguished rail worker after another said they have no place to report their concerns and that their clashes with management have triggered panic attacks, elevated blood pressure and thoughts of suicide. In 2011, a Norfolk Southern car inspector, under mounting pressure to stop reporting car defects, drove to work, clocked in and shot himself. His death shook the industry but didn’t change it. Norfolk Southern did not comment.
Karl Alexy, chief safety officer for the FRA, disagrees with the industry assertion that it is the safest it’s ever been, noting that grievous worker injuries and deaths haven’t changed in over a decade. “We’re not seeing an improvement in what’s really important: the lives of the workers,” he said. He also said worker fear is real and keeps critical information from regulators. “It definitely influences safety,” he said, “definitely for the worse.”
Haynes, the Union Pacific inspector, said he was tempted to overlook hazards after Letcher’s threat but came across a problem three weeks later that he couldn’t ignore: a car with faulty brakes, on its way out of the yard. Hayes flagged it for repair, but his manager again overrode him, so Haynes reported what happened to the FRA that morning. Though the agency has the capacity to inspect only about 1% of the rail system annually, its regulators can compel companies to make repairs, giving them deadlines and levying fines when they fail to meet them. The regulator issued a violation, Haynes said.
Haynes carried a digital recorder and captured a maintenance director, Andrew Letcher, threatening to dole out punishment to inspectors if they hurt productivity by finding defects Letcher deemed unnecessary. (Elise Kirk for ProPublica)About two weeks after Haynes’ report, Union Pacific closed the yard’s car shop, furloughing Haynes and a number of his colleagues indefinitely. The workers filed a complaint to OSHA, sharing the recorded threat and alleging retaliation. They asked for an expedited ruling so they could move the case to the Labor Department’s Office of Administrative Law Judges, the next step. OSHA administratively dismissed the case, and the one in the new venue is pending, according to Haynes’ attorney.
Letcher, who is still at Union Pacific, did not respond to attempts to reach him. The company did not address any of the statements on the recording, but it told ProPublica any claim that the car shop was closed in retaliation is false. “The shop was closed in 2019 as part of our efforts to streamline the railroad,” the company said, which means “removing how many times the car is ‘touched.’ Every time that happens, it adds about 24 hours to a car’s journey, and our goal is to move them as quickly and safely as possible for our customers.”
In reports to investors, Union Pacific touts these efforts as a key part of its strategy to maximize profits. Jim Vena, who is now chief executive officer, even mentioned the Kansas City closure as one of the moves that contributed to record efficiency in 2019. “We’ve made a number of changes to our operations in the last year and the results have been outstanding,” he told shareholders in an earnings call. “As we move forward, look for us to continue pushing the envelope.”
Matt Sweeney, Chris Johnson, Roman Berndt, Corey Schanz and Haynes. The five were present during the conversation Haynes recorded with management, and they were furloughed. (Elise Kirk for ProPublica) Time Is MoneyMuch like the veins and arteries that transport blood through our bodies, America’s vast freight rail network quietly powers the national economy, moving 1.6 billion tons of product a year over 140,000 miles of track in trains that can each weigh as much as a fleet of jumbo jets. As they trundle through communities carrying cars packed with explosive or hazardous materials, the companies that run them insist safety is their top priority.
But the Association of American Railroads, in its online marketing, describes a powerful undercurrent that pulses through every mile of those tracks: “In the digital age, speed and efficiency are everything.” Customers who make one-click purchases expect their products delivered the very next day. And demand is only growing — the Federal Highway Administration projects that freight shipments will see a 30% increase by 2040. Governments can’t afford to build roads quickly enough, the industry group argues, but freight trains are already adapting: “Trains have been improved to carry more cargo in a single journey.”
ProPublica previously delved into the dangers of precision scheduled railroading, in which companies are running longer trains with smaller crews, adhering to tight schedules. Anything that slows trains can have job-ending repercussions.
On the busy rail corridor running through northwest Atlanta, there was a notorious stretch of track known for tripping up engineers. Larry Coston didn’t feel like he could navigate the large number of signal lights safely going the speed limit of 60 mph, so he radioed the dispatcher that he’d be driving at a slower speed, a 6 to 8 mph crawl, in an effort to avoid an accident.
Norfolk Southern fired him for “intentionally” delaying his assignment. The company declined to comment on specific cases. But his boss, and his boss’ boss, testified in his ongoing lawsuit that his judgment didn’t matter; engineers should travel at maximum authorized speeds regardless of their safety concerns. “Run your train,” his direct supervisor, Travis Bailey, a senior road manager of engines, said in a deposition. “Do your job.”
Supervisors have strong incentives to push their workers like this. Court records show that several freight rail companies rate and rank their managers using metrics that reward them for trains staying on schedule and penalize them for disruptions — even when the delays are caused by safety precautions. “Slow order delays,” for example, calculate the amount of time lost from slowing trains because of unsafe track conditions.
Lewis Ware, a senior general foreman in Norfolk Southern’s Savannah, Georgia, yard, had a reputation for keeping a close eye on bad orders. In 2019, car inspectors Kelvin Taylor and Shane Fowler filed a federal complaint alleging that Ware had repeatedly removed their repair order tags, allowing dangerous cars to leave the yard. They said Ware told them he had a quota — no more than 10 a week — regardless of the actual number of defects the inspectors found. (Ware disputed that figure, arguing that his goal was actually 20 bad orders at the time.)
Numbers like “bad order counts” can be used on scorecards to rank a manager. For example, Ware’s supervisor said in a deposition that metrics related to bad orders made up 15% of her final score.
The supervisor said that Norfolk Southern discourages managers from unilaterally removing repair tags and that Ware had been advised to stop.
The federal lawsuit filed by the workers was settled in October under confidential terms, and Ware, who still works for the company, declined to comment for this story. A Norfolk Southern spokesperson noted that OSHA sided with the company before the car inspectors filed their lawsuit, and said in a statement that it “does not tolerate retaliation of any kind” and has “partnered with our unions and their leaders to improve safety and collaboration.”
To assess the internal pressure on rail supervisors, ProPublica interviewed former managers who worked at CSX, Norfolk Southern and Union Pacific between 2011 and 2021. They confirmed that fewer safety reports made their jobs easier: less time spent driving miles up and down territory to eyeball a “complainer’s” claims, less time trying to fix the issue and less time doing paperwork.
For people in their jobs, they said, time literally is money. Across the industry, managers receive year-end bonuses tied to performance, often defined by how efficiently they move trains through yards. The managers estimated that on a $100,000 base salary, someone with a good evaluation can earn a $20,000 to $25,000 cash bonus. These payouts can drop dramatically if managers fail to meet certain metrics.
In Minnesota, a BNSF track inspector named Don Sanders recorded his manager, Keith Jones, berating him for writing up defects that reflected poorly on Jones. “I’m about to lose my job, my family’s welfare,” Jones, a division engineer, said in one recording. He would later testify that his annual bonus was tied to his year-end evaluation, which factored in the sort of defects flagged by Sanders. But Jones’ supervisors heaped on praise after he helped fire Sanders. His review: “Your team is injury-free, slow orders are at an all time low, relationships are good. Don Sanders is no longer working for BNSF.”
“Why in the World Would We Ever Call FRA?”A BNSF track inspector, Don Sanders, recorded his manager, Keith Jones, berating him for calling the Federal Railroad Administration.
Jones declined to comment other than to emphasize that Sanders was fired for time theft, not in retaliation for safety reporting. Sanders claimed the time theft investigation against him was retaliatory. A federal jury sided with Sanders and awarded him over $9.4 million in 2021 for his wrongful termination; because of a cap on damages, the award was later reduced to $2.3 million. BNSF, which did not comment on the case, is appealing.
Sanders lost more than money from the entire episode. His estranged wife testified that he sank into a deep depression after he got fired, slept all day and was no longer the attentive partner and father he’d once been. “I lost my husband, basically.”
Accountability Is ElusiveTrack inspector Brandon Fresquez had an odd sense of deja vu in 2015 as he performed his duties in a BNSF hub in Denver. He was seeing the same defects in the same spots he’d previously flagged for repair. Sometimes the company’s computer system said they’d been fixed; sometimes the entry was missing entirely.
Fresquez and some co-workers suspected their manager, roadmaster Michael Paz, was falsifying repairs at the direction of his boss. They viewed Paz as a bully who they said spoke openly about badgering inspectors into changing their safety reports and firing those who did not fall in line.
BNSF maintained an anonymous hotline for employees who wanted to report unsafe conditions. According to trial testimony in a lawsuit Fresquez later filed, nearly a dozen calls had come in about Paz. The inspectors would later testify that they believed the company told local managers, including Paz, which of them had called. “They were trying to nitpick every little thing we did and trying to get us in a disciplinary action,” testified Jacob Yancey, a worker responsible for making track repairs. “There was a list of people they wanted to meet with afterwards, and everybody who had made that phone call was on that list.”
Fresquez, who questioned the confidentiality of the hotline, took his concerns straight to the FRA after Paz asked him to change information about a defect so a track would stay in service. An official told him that would be a violation of safety standards, Fresquez said, but the FRA didn’t do anything more to intervene.
Fresquez said he came back to Paz relaying what the FRA official had told him and saying he would not lie about track defects. Paz declined to comment when reached by ProPublica, but he denied falsifying records when he was later called to the stand to testify. Paz gave inconsistent answers in his deposition and trial testimony about whether he knew Fresquez called the FRA. What is clear is that by the end of that day, Fresquez was on leave for insubordination. The railroad later fired him.
And so, Fresquez began his slog down the well-worn track of trying to seek justice for his perceived retribution — one that, for many railroaders, is a yearslong grind.
Brandon Fresquez, a former track inspector for BNSF, with gear from his time at the railroad. He took on BNSF in court, saying the company retaliated against him after raising safety concerns. (Eli Imadali, special to ProPublica)Workers who contend that a railroad company violated their whistleblower rights must first file a claim to OSHA. The agency can accept complaints about harassment and threats before a worker is punished, but those can be more difficult to prove. More commonly, the agency becomes involved only after the employee is disciplined or is sitting at home without a paycheck.
It can take a year or longer for OSHA to complete an investigation. A spokesperson for the Department of Labor told ProPublica that while the optimal caseload for a whistleblower investigator is six to eight cases, the current average caseload is 17.
If 210 days have passed without an OSHA finding, workers can remove their cases and file a lawsuit in federal court. This can win them a big check, but it essentially allows the company to dodge any government ruling of retaliation. Take the case of Johnny Taylor, fired from Union Pacific under circumstances similar to Fresquez. After waiting seven months for OSHA to weigh in, he withdrew his whistleblower complaint and sued his former employer. Taylor was awarded $1.3 million after a jury found the company wrongfully terminated him. But because the OSHA case dead-ended, Union Pacific was never subjected to a ruling about whether it violated federal whistleblower law, which could have added to its public record about how it treats its employees.
In Fresquez’s case, OSHA quickly returned a finding that BNSF had retaliated against him. But knowing the company would likely appeal, his attorney, Nick Thompson, wanted to get the case in front of a jury sooner; he said most of his clients are often “destitute” within a year or two of losing their jobs. So began a gantlet of questions and cross-examinations, a trial and an appeal. “You’re a little guy trying to battle a million-dollar company,” Fresquez said. “I was in court basically for seven years. I lost sleep. I gained weight.” Some days, he wished he could disappear.
In 2019, a jury found that he was wrongfully terminated; he was awarded $1.7 million. An appellate court upheld the verdict late last year. BNSF declined to comment on this or any other case, but it wrote in a statement that “at BNSF, the safety of our employees always has been and always will be the most important thing we do. We believe that’s reflected in our record over the last decade, which produced the lowest number of injuries in our railroad’s history.” Paz is still a supervisor at the company.
Fresquez’s attorney got a sizable chunk of the payout, and what is left for Fresquez, he said, can never restore what he lost. “I’m fucked up, honestly,” Fresquez said. “My anxiety is so, so, so bad now.”
The change is palpable, Thompson said, serving as a cautionary tale to Fresquez’s former colleagues about what happens when you go up against a railroad company.
“Make no mistake about it,” Thompson said. “The winner of Brandon’s case was BNSF.”
BNSF train cars at a Denver facility (Eli Imadali, special to ProPublica) Reaching for a LifelineThis June in Hernando, Mississippi, a train pulling 47 tanker cars filled with highly flammable propane somehow escaped from its crew. The workers had parked their train to remove a section of cars. When they returned, they discovered that the remaining 90 cars, including the tankers filled with propane, had begun rolling down the tracks on their own.
The crewless bomb train traveled for 3 miles through two public crossings until it gradually came to a stop.
“Oh my God. That’s terrifying,” U.S. Rep. Melanie Stansbury, D-N.M. said after ProPublica informed her of the incident. “Unbelievable that in the year 2023 this is happening.”
Because it didn’t crash or derail, neither Grenada Railroad, the small company that ran it, nor its parent company, Gulf & Atlantic Railways, needed to tell the FRA. Laws and rules don’t require companies to tell regulators when they lose control of a train, even one carrying explosive cargo.
But word got around. Alarmed railroaders encouraged the workers to report the close call to regulators; someone needed to investigate what happened to prevent it from happening again, they argued.
The workers were too afraid, said Randy Fannon, a national vice president of the Brotherhood of Locomotive Engineers and Trainmen. “Evidently the employees felt that they couldn’t acknowledge it or report it for fear of retribution,” he said.
A week after the incident, an FRA official got a text message from someone other than a Grenada employee, which prompted a government investigation. Gulf & Atlantic declined to comment on the incident. The FRA told ProPublica penalties are forthcoming.
“That Grenada personnel were concerned for their personal well-being [and didn’t] report the incident is unfortunate and diminishes safety on that railroad and the industry in general,” Alexy wrote in an email to ProPublica.
There is an alternative: the Confidential Close Call Reporting System, which the FRA piloted in 2007 and fully implemented in 2014. It allows railroaders to anonymously disclose safety concerns or close calls to a third party, NASA. Officials at the space agency screen them, and, after 30 days, forward them to a team of railroad and FRA officials. But the program is voluntary; just 25 of the nation’s roughly 800 railroads participate; none of the six largest freight companies, the so-called Class 1s, do.
This year, after the East Palestine derailment, lawmakers and Transportation Secretary Pete Buttigieg pushed for them to join the system. They all originally agreed to, but months later, progress has stalled. Rail companies and their industry representatives say that they don’t want employees to have blanket immunity from discipline and that NASA takes too long to communicate information on hazardous situations. They say their internal hotlines are more effective. Discussions are ongoing, and a spokesperson for the Association of American Railroads said the companies are "working in good faith to get an agreement."
Stansbury, the New Mexico lawmaker, along with U.S. Rep. Jamaal Bowman, D-N.Y., introduced the Rail Worker and Community Safety Act in September, which would create a close call reporting system, prohibit retaliation for use of sick leave, increase funding for FRA inspectors and expand the U.S. transportation secretary’s power to create rules.
Alexy said his agency is exploring revisions to federal law that could expand the kind of incidents that must be reported to the government, including runaway trains like the one in Mississippi, and is conducting safety audits on all of the large railroad companies — including interviews that will give employees opportunities to say how they are treated when they report safety concerns. He said the work will be done by the end of 2024 and shared with the public.
Deidre Agan, a BNSF conductor in Forsyth, Montana, hopes those kinds of changes will help. “I don’t want to see anybody else have to struggle and suffer through the stuff that I had to put up with,” she said.
In the gloom of a late summer evening in 2016, she was in a locomotive going over 50 miles per hour when the engineer, Scott Weber, rounded a curve and saw an object on the tracks that seemed to loom as big as a house. She heard him yell, “Duck!” and the train slammed into what turned out to be a 6-ton cottonwood tree that had fallen across the tracks.
The two workers were thrown from their seats as glass from the windshield sprayed the cabin. The locomotive dragged huge chunks of the tree down the tracks for nearly a mile before it finally stopped.
Deidre Agan was a BNSF conductor in 2016 when her train slammed into a 6-ton cottonwood tree, some of the remnants of which are pictured. (Erin Trieb, special to ProPublica)In a flurry of emails between BNSF managers in the direct aftermath of the crash, one thing became clear: They’d been warned. According to conductor Don Purdon, everyone in the yard had noticed the tree at some point — its precarious lean, its dead bark. Five months before the collision, he’d reported it to an internal BNSF hotline. His managers promised to look into it but ultimately did not cut the tree down.
Just before the crash, Purdon’s managers forbade him from using the hotline because he was calling it too often, Purdon said. Then, they shut down the hotline altogether. “They tried to sweep it under the rug and say it wasn’t reported,” Purdon said.
BNSF declined to comment on the case. In depositions, Purdon’s manager claimed that decisions about the anonymous hotline had nothing to do with the accident. The best way to report hazards, he said, was to tell an immediate supervisor. That’s the very reporting method workers told ProPublica they feared most.
Don Purdon, a now-retired conductor, had voiced concerns about the tree that Agan’s train hit. He said his managers forbade from using an internal hotline because he was calling it too often. (Erin Trieb, special to ProPublica)Weber had surgery to implant a metal plate and eight screws in his neck; the injuries pushed him into an early retirement.
And Agan, nursing a herniated spinal disc and a torn rotator cuff, was fired two days after the crash; she’d recently been written up for missing a deadline to renew one of her certifications. With no job or health insurance, there were days she remained in bed and cried. She self-medicated with alcohol and developed a severe drinking problem.
After more than two years in arbitration and in pain, BNSF reinstated Agan and she finally had spinal surgery. She’s been sober for a year and a half.
She said she hopes that speaking out will reveal the atmosphere of fear that she and her colleagues operate in every day, but her expectations are low.
“I honestly don’t think anything will help because, you know, money talks,” she said. As long as the companies continue to profit, “they really don’t care.”
Railroad tracks about an hour and a half outside of Billings, Montana (Erin Trieb, special to ProPublica)Help ProPublica Report on Railroad Worker Safety
Jeff Kao, Carolyn Edds, Mollie Simon, Mariam Elba, Miriam Pensack and Ruth Baron contributed research.
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Forrest VanPatten was 50 and strong after years as a molten-iron pourer when he learned in July 2019 that a hyperaggressive form of lymphoma had invaded his body. Chemotherapy failed. Because he was not in remission, a stem cell transplant wasn’t an option. But his oncologist offered a lifeline: Don’t worry, there’s still CAR-T.
The cutting-edge therapy could weaponize VanPatten’s own cells to beat back his disease. It had extended the lives of hundreds of patients who otherwise had no chance. And VanPatten was a good candidate for treatment, with a fierce drive to stay alive for his wife of 25 years and their grown kids.
VanPatten didn’t know it, but he also had the law on his side. His home state of Michigan had long required health insurers to cover clinically proven cancer drugs.
He and his family gripped tight to the hope that the treatment promised.
Then, his insurance company refused to approve it.
Across the country, health insurers are flouting state laws like the one in Michigan, created to guarantee access to critical medical care, ProPublica found. Fed up with insurers saying no too often, state legislators thought they’d solved the problem by passing hundreds of laws spelling out exactly what had to be covered. But companies have continued to dodge bills for pricey treatments, even as industry profits have risen. ProPublica identified dozens of cases in which plans refused to pay for high-stakes treatments or procedures — from emergency surgeries to mammograms — even though laws require insurers to cover them.
Companies can get away with this because the thinly staffed state agencies that oversee many insurers typically don’t open investigations unless patients file complaints. Regulators acknowledge they catch only a fraction of violations. “We are missing things,” said Sebastian Arduengo, an assistant general counsel for Vermont’s insurance department.
In the 34 years since Michigan began to require cancer coverage, regulators there have never cited a company for violating the law.
Like most policyholders, VanPatten had no insight into the decision made by his insurer, a nonprofit called Priority Health that covers about a million Michigan residents.
He didn’t know that around the time the therapy won the Food and Drug Administration’s approval, executives at Priority Health had figured out a way to weasel out of paying for it.
Forrest celebrates his birthday in 2012. (Courtesy of the VanPatten family)Through interviews with former employees and a review of company emails and VanPatten’s medical records, ProPublica was able to crack through the usual secrecy and expose the health insurer’s calculations.
Former employees said the decision not to cover this treatment and a related one was driven almost entirely by their high price tags — up to $475,000. Side effects that could land a patient in the hospital can push the bill over $1 million. Priority Health number crunchers calculated to the penny the monthly cost per policyholder if the company shifted the expense to them: 17 cents. But executives didn’t raise premiums or absorb the extra cost. They decided to save that money.
Patients’ needs weren’t part of the equation, recalled Dr. John Fox, then Priority Health’s associate chief medical officer. “It was, ‘This is really expensive, how do we stop payment?’”
Over Fox’s objections, fellow executives came up with a semantic workaround: These cancer drugs aren’t technically drugs, they argued, they’re gene therapies. All Priority Health had to do was to exclude gene therapies from its policies, and it could say no every time.
Priority Health said in a written statement to ProPublica that it provides compassionate, high-quality, affordable coverage and spends 90 cents of every premium dollar on member care.
“We are committed to making medical innovations available to members as quickly as possible, regardless of cost, as soon as they have been proven to be safe and effective,” Mark Geary, a spokesperson, wrote. The company said it initially didn’t cover CAR T-cell therapy because there was a “lack of consensus” about the treatment’s effectiveness.
“Major life-threatening complications and side effects were common, with a high rate of relapse,” the statement said.
At the time of VanPatten’s denial there was, in fact, already substantial consensus about the medication. In December 2017, the National Comprehensive Cancer Network, then an alliance of 27 leading U.S. cancer treatment centers, spelled out in its guidelines for B-cell lymphomas which patients should receive the therapy and when. VanPatten’s doctor said he met the criteria.
“It was, ‘This is really expensive, how do we stop payment?’”
—Dr. John Fox, Priority Health’s former associate chief medical officerVanPatten’s family signed a privacy waiver giving Priority Health permission to discuss his case with ProPublica. Nevertheless, Priority Health did not respond to questions about his case or whether the company had violated Michigan’s mandate to cover cancer drugs when it refused to pay for his therapy.
VanPatten was disappointed but tried to remain optimistic after the first denial in January 2020. He and his wife, Betty, who worked in medical billing, knew it often took an appeal to coax the insurer to approve care.
In early February, Dr. Stephanie Williams, then the head of the blood and marrow transplant program for Spectrum Health, came to see VanPatten in his hospital room on Grand Rapids’ Medical Mile. It had been more than six months since his diagnosis.
He was sitting up in bed hooked up to an IV. His face, once framed by reddish eyebrows and a signature goatee, was hairless and drained of color. Betty pasted on a tight smile.
Priority Health had denied the treatment again, Williams told them, though she vowed to keep fighting.
When she left the room, VanPatten swung his legs over the side of the hospital bed. He had remained resilient and good-humored through his illness. But at that moment, he felt like Priority Health was treating him like an expense, not a person. It got to him, the idea that the insurer he dutifully paid each month knew this was his only chance and was holding it just out of reach.
He grabbed a tissue box from a tray and hurled it against the wall.
Fox, whom Willams described as the “conscience of the company,” had long been the point person for oncology in Priority Health’s medical department. In his earlier life as a practicing physician, he had trained at the Centers for Disease Control and Prevention as a chronic disease epidemiologist. When he joined Priority Health in 2000, he admired the company’s focus on preventive care and the fact that his bosses encouraged him to build deep relationships with local hospitals and doctors.
Dr. John Fox (Kristen Norman for ProPublica)CAR T-cell therapy was a breakthrough more than 20 years in the making, and Fox had tracked clinical trials and talked to oncologists about it. By genetically reengineering patients’ own white blood cells, then infusing them back into the body to fight cancer, the treatment helped most participants in clinical trials get into remission within three months.
He knew this would be a game changer for patients. He also knew the law. So when news of the FDA’s approval of the first CAR-T medication, Kymriah, hit his inbox in August 2017, he recalled, “I said, ‘You know, we’re required to cover this. This is a treatment for cancer.’”
But the culture at Priority Health had shifted over the previous year under new leadership to focus on cost savings, Fox and four other former employees said in interviews. The company brought in a new chief medical officer, Dr. James Forshee, in late 2016 from Molina Healthcare, an insurer known for wringing profits out of Medicaid managed care plans.
In conversations about the new treatment, several former Priority Health employees recall, Forshee pointed out that the law required covering cancer “drugs,” and he argued that the new treatment actually wasn’t a drug; it was a gene therapy. (Through a company spokesperson, Forshee declined to comment for this article.)
Fox thought this was ridiculous. He pressed company lawyers for an opinion. Priority Health’s filings with the state “indicate that we have to cover FDA approved cancer drugs,” Fox wrote to two members of the legal department in a September 2017 email.
Senior counsel John Samalik responded, bolstering Forshee’s position that Priority Health didn’t have to cover Kymriah: “I believe legally we have a defensible argument that Kymriah is a gene therapy and not a drug.” (Samalik declined to comment through a company spokesperson.)
A September 2017 email written by John Samalik, a Priority Health senior counsel (Obtained by ProPublica. Highlighting by ProPublica.)Fox pointed out that the company already covered another gene therapy. He told ProPublica that he suggested asking state regulators whether the cancer-drug mandate applied to Kymriah, but Forshee and at least one other executive refused.
“My inference being that, if we ask the state, they would say yes, so let’s not ask,” Fox said. Two other former Priority Health employees involved in the discussions confirmed Fox’s recollections.
The FDA approved a second CAR T-cell medication, Yescarta, seven weeks after the first approval.
When ProPublica asked if the FDA considered CAR T-cell therapies drugs, an agency spokesperson said yes. She wrote in an email that they have been regulated as gene therapies, and that they “are biological products and drugs under the Public Health Service Act (PHS Act) and the Federal Food, Drug and Cosmetic Act.”
Fox continued to push Priority Health to cover them; Forshee didn’t budge.
As they often did for new therapies, Priority Health’s actuaries calculated the price tag. They estimated that each year, one patient would need Yescarta and one Kymriah. If spread across the company’s members, the therapies would cost an extra 17 cents per member per month — 8 cents for Yescarta and 9 cents for Kymriah, emails show.
If the company had chosen to absorb the cost rather than raise premiums, the extra expense — potentially more than $1 million for each patient receiving the therapy — could have hurt its bottom line. Other insurers had also balked at the cost of CAR-T and were slow to cover it.
Priority Health made a slight tweak to its 2018 filings to state regulators, one with life-changing implications for patients like VanPatten. As it had in the past, the company said it covered drugs for cancer therapy “as required by state law.” But the insurer slipped in a new sentence more than a dozen pages later: Gene therapy was “not a Covered Service.”
Watch the Scripps News Report “Hope Denied”Meanwhile, regional and national health plans began approving the drugs. Kaiser Permanente started covering them within months of the FDA’s approvals. Blue Cross Blue Shield of Michigan — the state’s biggest health plan and Priority Health’s main competitor — paid for a cancer patient to receive CAR T-cell therapy in December 2017. (A spokesperson said in an email that the plan added coverage based on the treatments’ efficacy, without considering whether Michigan’s mandate applied. “We would have covered these drugs irrespective of the law,” she said.)
When the national Blue Cross Blue Shield Association made an announcement about CAR-T coverage later in 2018, employees at Priority Health forwarded it to one another. It was an I-told-you-so moment for Fox.
At a meeting that December, Fox made the case again that Priority Health should ask the state whether Michigan’s law required covering the new cancer treatments.
Forshee bristled. “You don’t trust our legal counsel?” he responded, according to Fox and another executive who attended.
His own temper rising, Fox considered what would happen if the company maintained its position. Patients who needed these therapies would likely die. Fox and his team would have to sign the denial letters, knowing the despair and anger they would sow.
After working at Priority Health for more than 18 years, Fox had once thought he’d retire there. He left that meeting certain he had to move on.
“Health plans have a right to make money; we’re providing a service,” Fox said. “But we have to do that honestly and fairly, putting patients first, not profits or premiums first. To me, that’s where we crossed the line.”
Priority Health’s headquarters in Grand Rapids, Michigan (Kristen Norman for ProPublica)About seven months later, on a sticky night in July 2019, Forrest and Betty VanPatten were sipping beers with friends at the local club of the Fraternal Order of Eagles.
When they’d moved to Sparta, a small Michigan town known for its apple orchards, this was where they’d found community. The club had hosted countless charity raffles and fundraisers, including a “pink night” for the American Cancer Society for which Forrest squeezed into a hot-pink minidress Betty sewed for him. (There wasn’t much off-the-rack that could fit his almost 6-foot-8-inch frame.)
They were expecting biopsy results at any moment. Forrest had gone to the emergency room the previous weekend with intense pain. He’d made it through two previous bouts of lymphoma and suspected he was about to face another.
Forrest’s phone rang. It was the office of his primary oncologist, Dr. Brett Brinker. Oncologists meet hundreds of patients and their families, but Brinker had grown deeply fond of the VanPattens. Forrest was the guy who could talk to anyone, who made the party worth attending. Betty was his perfect foil. Their laughter and candor left a lasting impression.
The news was bad. Forrest had something called Richter’s transformation. It made his lymphoma significantly more aggressive and less likely to respond to conventional chemotherapy. After hanging up, Forrest typed Richter’s into his phone. Almost immediately, he proclaimed, “This is a death sentence.”
Betty needed to clear her head. She walked around the block, passing a restaurant where Forrest’s name was on the wall for completing a taco-eating challenge. When she got back, she urged Forrest to snap out of his defeatism.
He had just celebrated his 50th birthday and was determined to be around for his 51st. His kids, Donovan, 23, and Madison, 22, were in serious relationships, and he wanted to be there for their weddings.
“So we went in and got a game plan,” Betty said. Forrest would begin with chemotherapy, and, if the cancer went into remission, they would try for a stem cell transplant. If the cancer didn’t go into remission, Brinker made it clear they weren’t out of options. He told them about CAR-T.
It felt reassuring at the time.
By January 2020, CAR-T was all they had left. Brinker said he thought the treatment could at least bring Forrest’s disease under control for a few years. “It’s hard to use the word ‘cure’ when it’s acting like that,” he said of Forrest’s cancer. But if they won some extra time, he said, “there’s always something in the wings you can hope for.”
On Jan. 28, Williams, the doctor who ran the transplant program, worked with her team to submit a request for coverage to Priority Health. Williams knew the company’s policy on CAR-T but thought the insurer might relent when faced with an actual patient who was certain to die without the treatment. Plus, by that point, the federal government was covering the therapies for Medicare patients, and insurers often follow its lead.
Knowing it could take weeks to grow the cells used in the treatment, his doctors prepared to extract his white blood cells. “These are diseases where we don’t have a lot of time to waste,” Williams said.
Then Williams’ office found out that Priority Health had denied the request. Forrest’s doctors appealed but were turned down again, prompting Forrest to throw the tissue box at the wall.
Williams felt it, too. “I was deflated. I was angry,” she recalled. “We kept trying to work it out, and we kept hitting roadblocks.”
The VanPattens didn’t have the money to pay out of pocket, and Forrest didn’t want to saddle his family with medical debt. His medical team filed a third and final appeal, this one to an independent reviewer.
As that went forward, the VanPattens received a letter from Priority Health explaining its reasons for denying Forrest’s treatment. CAR-T cell therapy “is not a covered benefit,” and “therefore, we are unable to approve this request,” the letter stated. Somehow, seeing the words in writing conveyed a different finality, sending Forrest into a downward spiral.
“Everybody deserves the chance of fighting,” Betty said. “Once you take somebody’s hope away, you kill them — you really, really do. It was evident with him. He was defeated, and he had never been defeated in his life, and that was hard to watch.”
“He was defeated, and he had never been defeated in his life, and that was hard to watch.”
—Betty VanPattenTheir son, Donovan, took to social media to blast Priority Health for its decision, hoping to shame the company into a last-minute about-face. He included a screenshot of a text message from Forrest, who knew his insurer was an outlier. “It should be noted that Blue Cross and Blue Shield of MI pays for Car T Cell!” it read.
A reporter for Scripps News Grand Rapids, WXMI, a local TV news station, interviewed Forrest on Feb. 13 in the suede recliner he’d long claimed as his chair in the family’s living room.
“I feel like I’m being ignored,” he said, tears streaming down his face. “Left out to die, basically.”
Days later, Forrest was back in Butterworth Hospital with shortness of breath. “He is in acute distress,” an emergency room doctor noted when he was admitted.
The following night, his heart stopped beating. Betty retreated to the back of the room as doctors and nurses swarmed in. Donovan sat in a chair outside, his head in his hands.
Madison raced through Grand Rapids’ snow-covered streets to join them. When she reached her father’s room, a member of the medical team was still pushing down on his chest. But, she recalled, “it was clear he wasn’t there anymore.” The family told his doctors to end the resuscitation effort.
Forrest died on Feb. 17, before the independent medical reviewer had a chance to weigh in. Three weeks had passed since Williams and her team had asked Priority Health to cover the therapy.
Williams said that if Priority Health had approved the first request, Forrest could have received the infusion. It’s unknowable whether the treatment would have given him more time, she said, but if he’d had that chance, “anything is possible.”
Not long after Forrest died, his family received a handwritten card from a clinical coordinator who cared for him.
“I am so so so sad that we didn’t get the chance to put the rest of our plan into motion,” she wrote. “In honor of your kind (+very funny) husband, dad, friend, I promise to continue to push for Priority Health to cover CAR-T and to bring hope to all who need it.”
In Priority Health’s statement, Geary, the spokesperson, wrote that the company began covering the therapy “after extensive clinical work improved the treatment.” The company would not say when it began paying for the treatment or whether Forrest’s death influenced its decision.
“It is devastating when a disease takes a member’s life,” the statement said. “We recognize the deep pain of losing someone you love.”
First image: The VanPatten family gets together on Sundays for dinner and has continued the tradition after Forrest’s death. Second image: Family photos line a shelf in the VanPattens’ home. Forrest didn’t live to see his children’s weddings. (Kristen Norman for ProPublica)To former state Sen. Joe Schwarz, now 86 and retired, the story of Priority Health and Forrest VanPatten is a painful echo of a problem he thought he’d fixed.
More than 30 years ago, Schwarz helped write the Michigan law requiring insurers to pay for cancer drugs. Schwarz, a physician, still recalls what drove him to action: Insurance companies were refusing to pay for drugs given to make chemotherapy more effective, arguing they weren’t themselves chemotherapy. An op-ed in the Wall Street Journal by the head of the Association of Community Cancer Centers confirmed that insurers nationwide were denying coverage for cancer patients.
At a Senate hearing, Schwarz accused health plans of abandoning their policyholders based on a “play on words.” When ProPublica told Schwarz about Priority Health’s gene-therapy argument, he let out a mirthless “hah,” scoffing at the wordplay.
“You shouldn’t split hairs between the term gene therapy and the term chemotherapy or the term radiation therapy or the term surgical therapy,” he said. “They’re all cancer therapies and they should all be covered.”
“You shouldn’t split hairs between the term gene therapy and the term chemotherapy or the term radiation therapy or the term surgical therapy. They’re all cancer therapies and they should all be covered.”
—Former state Sen. Joe SchwarzProPublica gave Michigan’s Department of Insurance and Financial Services a detailed description of VanPatten’s case, as well as Priority Health’s contention that it didn’t have to cover CAR T-cell cancer therapies. We asked if Priority Health broke the state law on cancer treatments. Laura Hall, the department’s communications director, wouldn’t say. The agency can investigate if it spots a pattern of improper denials, but “in general,” she said, it only acts if a patient or their representative files a complaint.
The VanPattens didn’t do that. And they didn’t know about the Michigan law until ProPublica told them about it.
In the months after her husband died, Betty VanPatten was too weighed down by grief and anger to tangle with Priority Health through state insurance regulators. The days were a blur. Donovan and his partner, McKenzie, moved in with Betty, who threw herself into her job.
“I’d get up at 4, and I’d have my laptop and I just worked until about 9 or 10 o’clock,” Betty said. “And a lot of times I’d just sit there and the tears are just running down my face.”
The VanPattens still struggle with the sense that Forrest suffered an injustice and that Priority Health got away with it.
“They lost sight of the patient,” Betty said at a family dinner this July. Madison agreed.
“Insurance is meant to protect people,” she said, “not to make them fight through the last day to get what they should.”
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Kirsten Berg contributed research.
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