A settlement is about to shield members of the Sackler family from civil litigation regarding their alleged roles in the opioid crisis. So it’s a good time to release the full video of Richard Sackler’s 2015 deposition.
This article was published on Wednesday, August 4, 2021 in ProPublica.
A settlement close to being finalized in a bankruptcy case would provide a shield from civil litigation to the members of the Sackler family who own OxyContin maker Purdue Pharma. The development means that family members will be significantly less likely to be questioned under oath about their role in the marketing of the potent prescription painkiller blamed for fueling a nationwide opioid epidemic.
Despite years of litigation alleging some Sacklers pushed Purdue to aggressively and inappropriately market OxyContin, members of the family successfully avoided most attempts to force them to answer questions about their stewardship of Purdue or the multibillion-dollar fortune they amassed as OxyContin became a bestselling pain medicine. They have repeatedly denied acting inappropriately, and the settlement under consideration in U.S. Bankruptcy Court in White Plains, New York, does not require the Sacklers to admit wrongdoing. Family members would pay $4.5 billion over nine years to resolve civil lawsuits filed by states, cities, insurers and families impacted by the opioid crisis.
An exception occurred in 2015, when Dr. Richard Sackler was questioned for more than eight hours by lawyers representing the state of Kentucky in a lawsuit against Purdue. Richard Sackler served as president of Purdue Pharma and was a longtime board member.
Purdue fought for years to keep the deposition secret, unsuccessfully appealing the case to the Kentucky Supreme Court after a lower court ruled it should be released. Although a transcript of the deposition was released by a Kentucky court, the video was not. It was obtained in 2019 by ProPublica, which posted selected passages from the video.
In the deposition, Sackler is asked about his role in launching and overseeing the marketing of OxyContin, how Purdue incentivized its sales force to sell the drug, and a decision he supported not to correct the false belief among doctors that OxyContin is weaker than morphine.
Inspectors repeatedly found manufacturing and device quality problems with the HeartWare heart pump. But the FDA did not penalize the company, and patients had the device implanted on their hearts without knowing the facts.
This article was published on Thursday, August 5, 2021 in ProPublica.
John Winkler II was dying of heart failure when doctors came to his hospital bedside, offering a chance to prolong his life. The HeartWare Ventricular Assist Device, or HVAD, could be implanted in Winkler’s chest until a transplant was possible. The heart pump came with disclaimers of risk, but Winkler wanted to fight for time. He was only 46 and had a loving wife and four children, and his second grandchild was on the way.
So, in August 2014, Winkler had surgery to implant the device. A golf-ball-sized rotor was attached to his left ventricle to pump blood through a tube and into his aorta. A cable threading out of a small incision in his waist connected to a battery-powered controller strapped to his body. If something went wrong, an alarm as loud as a fire drill would sound.
Winkler returned home weeks later and, as he regained his strength, became hopeful about the future. He started making plans to visit colleges with his daughter, and was able to host his parents and new grandchild for Christmas. “He was doing so much better,” his wife, Tina Winkler, said. “We thought he was coasting until he got his transplant.”
What John Winkler didn’t know: Months before his implant, the Food and Drug Administration put HeartWare on notice for not properly monitoring or repairing HVAD defects, such as faulty batteries and short circuits caused by static electricity, that had killed patients. The agency issued a warning letter, one of its most serious citations. It demanded fixes within 15 days, but took no decisive action as problems persisted.
Ten days after Christmas 2014, Winkler’s two teenage children heard the HVAD’s piercing alarm and ran upstairs. They found their father collapsed on his bedroom floor, completely unresponsive. Kelly, 17, dropped to his side and tried to copy how people on television did CPR. She told her brother to call 911, and over the device’s siren did her best to hear instructions from the operator.
When paramedics arrived and assessed her father, one made a passing comment that has haunted Kelly ever since: “Well, his toes are already cold.” He died two days later. Medtronic, the company that acquired HeartWare in 2016, settled a lawsuit by the family last year, admitting no fault. Tina Winkler believes her children blamed themselves for their father’s death. “Those two kids have never been the same,” she said. “I think they feel like they didn’t do things they needed to do.”
But it was the FDA that failed to protect Winkler and thousands of other patients whose survival depended on the HVAD, a ProPublica investigation found.
As HeartWare and Medtronic failed inspection after inspection and reports of device-related deaths piled up, the FDA relied on the device makers to fix the problems voluntarily rather than compelling them to do so.
The HVAD was implanted into more than 19,000 patients, the majority of whom got it after the FDA found in 2014 that the device didn’t meet federal standards. By the end of last year, the agency had received more than 3,000 reports of patient deaths that may have been caused or contributed to by the device.
Among them were reports of deaths the company linked to serious device problems: a patient who vomited blood as a family member struggled to restart a defective HVAD; a patient who bled out internally and died after implant surgery because a tube attached to the pump tore open; a patient whose heart tissue was left charred after an HVAD short-circuited and voltage surged through the pump.
The ineffective regulatory oversight of the HVAD is emblematic of larger, more systemic weaknesses.
For decades, the FDA and its Center for Devices and Radiological Health have been responsible for ensuring that high-risk medical devices are safe and effective. Yet they mostly rely on manufacturers to identify and correct problems. The agency says it can seize products, order injunctions against companies or issue fines, but it rarely does so, preferring instead for companies to make fixes voluntarily.
When federal investigators found repeated manufacturing issues with the HVAD for years, the FDA didn’t penalize the company, even as the company issued 15 serious recalls of the device starting in 2014, the most of any single high-risk device in the FDA’s database. Thousands of patients with recalled models needed to have external HVAD parts replaced or take extra caution while handling their devices and monitor them for signs of malfunctions that could cause injury or death.
Meanwhile, the processes to inform the public through formal FDA notices and messages to healthcare providers repeatedly failed and left patients in the dark about known problems with the HVAD.
“Patients have no idea, and they rely on the FDA to ensure the safety and effectiveness of high-risk devices,” said Dr. Rita Redberg, a cardiologist at the University of California, San Francisco who studies medical device regulation. “How can you not take action on a warning letter with these serious issues with very sick patients?”
In response to ProPublica’s findings, the FDA said it had been closely monitoring issues with the HVAD. It said that after Medtronic acquired HeartWare in 2016, it met with the company more than 100 times to ensure problems were being fixed and to review safety concerns related to the heart pump. The agency also said it initiated formal reviews of new device modifications and continually tracked whether the HVAD had a “reasonable assurance of safety and effectiveness.”
“Our decisions that we made along the way have always been patient-focused,” said Dr. William Maisel, the director of product evaluation and quality at the FDA’s device division. He added that more than 80% of companies fix their problems by the time the FDA reinspects.
That did not happen with the HVAD. In 2016 and 2018, inspectors found that issues detailed in the 2014 warning letter remained unresolved. Medtronic told the FDA last year that it had fixed the problems, but, before the agency could verify the claim, inspections were paused because of the coronavirus pandemic.
In June, Medtronic stopped HVAD sales and implants. The company conceded that a competing device was safer after a new study showed the HVAD had higher rates of death and neurological injury. Medtronic also cited a 12-year-old problem with its devices not restarting if they disconnect from power, leaving patients’ hearts without support.
Medtronic declined to make CEO Geoffrey Martha or president of mechanical heart support Nnamdi Njoku available for interviews. In an email, a spokesperson said, “There is nothing more important to Medtronic than the safety and well-being of patients.”
The email continued, “Medtronic takes this matter very seriously and, over the past five years, we have worked closely with FDA and engaged external experts to resolve the issues noted in the warning letter. FDA is aware of the steps Medtronic has taken to address the underlying concerns.”
The company said it will have a support system in place for the 4,000 patients worldwide and 2,000 in the United States who still rely on the HVAD. Medtronic will station 20 specialists across the globe to help with device maintenance and patient education. A centralized engineering team will also provide technical support and troubleshooting for patients and medical staff. Medtronic said it will also offer financial assistance if insurance doesn’t fully cover the surgery to replace a device with a competing product, but only if a doctor decides it’s medically necessary.
Patients with HVADs have little choice but to hope the devices keep working: The surgery to remove HVADs is so risky that both Medtronic and the FDA advise against it. The device is meant to be left in place until its wearer gets a heart transplant. Or dies.
Warning Signs
In late 2012, HeartWare, then an independent company headquartered in Massachusetts, won FDA approval to sell a new device that could keep heart failure patients alive and mobile while awaiting a transplant.
A competing device, the HeartMate, was already gaining attention, with high-profile patients like former Vice President Dick Cheney, a heart attack survivor who eventually got a transplant after using the device for 20 months.
The patients who received HVADs had already been in grave peril. They had advanced heart failure, serious enough to need blood pumped out of their hearts artificially. Most patients were older than 50, but there were also younger patients with heart defects or other cardiac conditions. The device provided help but brought its own risks. Implanting it required invasive open-heart surgery, and clots could develop inside the pump, which, in the worst cases, led to deadly strokes.
The device also came with a steep price tag. Each HVAD cost about $80,000, and, even though HeartWare never made a profit as an independent company, in 2015 device sales brought in $276 million in revenue.
For many severe heart failure patients, the opportunity to survive longer and return to normal life made the device worth the risks and cost.
But patients were unaware the FDA started finding manufacturing issues at HeartWare’s Miami Lakes, Florida, plant as early as 2011, when the device was still seeking approval.
Among the findings, a federal inspector expressed concerns that engineering staff “were not completely reviewing documents before approving them” and found one employee assigned to monitoring device quality had missed several required monthly trainings. HeartWare leadership promised quick corrective action, according to FDA documents.
For example, HeartWare knew of 119 instances in which batteries failed unexpectedly, which could leave the pump powerless, stopping support for the patient’s heart. But the company didn’t test the batteries in inventory for defects, or the batteries of current patients, even though one person’s death had already been linked to battery failure.
The company also received complaints that static electricity could short-circuit its devices. It learned of at least 27 such cases between 2010 and 2013, including four that resulted in serious injuries and two that led to death. HVAD patients would need to avoid contact with certain household objects like televisions or vacuum cleaners — anything that could create strong static electricity. HeartWare added warnings to the patient manual and redesigned its shield to protect the device controller, but the FDA found that the company didn’t replace shields for devices already being used by current patients or produced and sitting in inventory.
Continuing quality control concerns led to the FDA warning letter in June 2014. The document labeled the HVAD as “adulterated,” meaning the device did not meet federal manufacturing standards. The agency gave HeartWare 15 days to correct the problems or face regulatory action.
Still, investment analysts who followed HeartWare believed the warning posed little risk to the company’s business prospects. One described it as being “as benign as possible.”
The 15-day deadline passed, and the FDA never penalized the company.
The agency told ProPublica it had provided additional time because HeartWare was a relatively new manufacturer and the HVAD was a complicated device. It also said it avoided punitive action to make sure patients with severe heart failure had access to this treatment option. “We’re talking about the sickest of the sick patients who really have very few alternatives,” Maisel, the head of device quality, said.
But the HeartMate, the competing device, was available and already being used by the majority of patients. When Medtronic stopped HVAD sales, both companies said the HeartMate could fill the gap.
Inspectors continued to find problems at HeartWare facilities in 2015, 2016, 2017 and 2018. In the most recent report in 2018, inspectors identified seven separate violations at the HVAD plant, including three previously cited in the 2014 warning letter. The company was still mishandling newly discovered defects like pins connecting the controller to a power source that could bend and become unusable, and controllers built with incompatible parts that could chemically react and “attack” the plastic exterior.
Again, the inspection report said the company “promised to correct” the issues.
“What penalty is there for noncompliance? There isn’t one,” said Madris Kinard, a former public health analyst with the FDA and the CEO of Device Events, a software company that analyzes FDA device data. “There’s nothing the FDA is doing that penalizes, in any true sense of the matter, the manufacturer.”
By the time sales were halted last month, the HVAD had become the subject of 15 company-initiated “Class I” recalls for dangerous device problems that could cause injury or death.
One recall came with a warning sent to health care providers in December that said pumps were failing to start up properly. The pattern of malfunctions was almost as old as the device itself, the company later admitted when it halted device sales in June. But even recent patients were completely unaware of the problem.
“A No-Brainer”
When children asked Latoya Johnson Keelen about the cable that came out of her side and connected to a controller on her hip, she told them she was Iron Woman.
For a while, she felt invulnerable with the HVAD on her heart.
Johnson Keelen, who lives in the Atlanta suburbs, learned she needed the device after delivering her fourth child, Isaiah, in early 2018. Doctors diagnosed her with postpartum cardiomyopathy, a rare and mysterious form of heart failure that afflicts mothers during pregnancy or after birth. Black mothers in the South have among the highest rates of the illness. Some mothers quickly regain heart function, some only partially recuperate and others never recover.
Tests showed that Johnson Keelen, then 42, was suddenly in end-stage heart failure.
Her body’s immune response at the time was too strong for her to receive a heart transplant. Doctors gave her two choices: an HVAD or end-of-life hospice care.
“It became a no-brainer,” she said. “I just had a baby. I just gave birth. I’m not ready to plan for a funeral.”
Johnson Keelen, a woman of faith, believed God would heal her, either through a medical advancement or a miracle. She thought the HVAD was the answer.
Living with a life-sustaining medical device was difficult at first for the fiercely independent mother. She had to leave her job as a public health communications specialist, ask her older sons to change her bandages and lean heavily on her new husband, only a year into their marriage.
But, for about three years, she found comfort in the soft humming of the HVAD’s spinning rotor at night. It served as a lullaby for her new baby when he lay on her chest.
She said she was never told about the manufacturing problems the FDA repeatedly found at HeartWare’s facilities or about device recalls, including one sent to patients in December 2020. The notice said the device sometimes wouldn’t restart properly, which had led to two patient deaths at that point. It warned that current patients should always keep at least one power source, a battery or an AC or DC adapter, connected at all times to avoid the need for a restart.
Two months after that notice, Johnson Keelen was getting her kids ready for school when the HVAD’s low-battery alarm blared. She had unplugged the battery to replace it without realizing her wall adapter was disconnected.
Once before, Johnson Keelen had simply plugged the charger back into the outlet and her device restarted. But this time it wouldn’t.
As an emergency alarm sounded, she called the ventricular-assist team assigned to her case, and a specialist directed her to switch out the device controller.
Nothing changed, and panic crept into the voice on the phone.
An ambulance took Johnson Keelen to a hospital where medical staff used several backup controllers to try to start the pump.
Still nothing.
Doctors and nurses tried to keep calm, but Johnson Keelen could see fear and shock on their faces. Without the HVAD, her only options were a transplant or a completely new pump.
Doctors scurried to locate a donor heart and airlifted her for an emergency transplant. But while running tests, the medical team was stunned to find that Johnson Keelen’s miracle had occurred: Her heart was once again pumping blood on its own.
She had a new choice. She could avoid the risks of transplant rejection and open heart surgery during the pandemic by leaving the device on her functioning heart, while cutting the wires, removing the external components and sealing the pump.
She chose to trust her newly functioning heart, and leave the decommissioned HVAD inside her.
Three months later, when Medtronic said it was stopping HeartWare sales and implants, its announcement cited the problem with pumps not restarting among the reasons.
Company-Led Oversight
If evidence suggests a medical device may be linked to a serious patient injury or death, hospitals and other health care facilities must submit a report to the manufacturer and the FDA. Device companies must also submit reports if they learn independently of any incidents.
By the end of 2020, roughly 3,000 death reports and 20,000 injury reports related to the HVAD had been filed with the FDA.
Any details that could identify patients, like their age or gender, are removed from the publicly available reports. Most only have limited details about circumstances surrounding deaths or injuries. But it’s clear from the reports on the HVAD that some of these outcomes could be linked to problems previously identified by FDA inspectors.
Doctors attempted CPR for two hours after an electrostatic shock short-circuited one patient’s device in 2014, a few months after the FDA inspection that year. An autopsy revealed voltage had caused “deep charring” of the tissue inside the patient’s chest.
Friends found another patient dead in the kitchen, with groceries still on the counter, in 2018 after their device, which did not have the recommended static shield, short-circuited.
Last year, paramedics found a patient with the device disconnected from power. They struggled to restart the device, but it wouldn’t plug back into the power source because the connector pins were bent. The patient would die at the hospital.
In most cases, the FDA turned to the company to investigate whether a malfunction caused or contributed to the incidents.
But the FDA has long known HeartWare and Medtronic could not be relied on to properly submit HVAD incident reports.
In 2014, the FDA cited HeartWare because in at least 10 cases, there were no documents showing the company attempted to investigate.
In 2016, the agency wrote another citation when the company was late in reporting more than 200 cases, some more than a year past their 30-day reporting deadlines, and failed to report malfunctions that occurred during clinical trials.
The FDA told ProPublica the agency increased its monitoring of HVAD reports, and Medtronic hired new employees to submit timely reports. But by 2018, its backlog had only grown, with 677 late case filings. Again, the FDA did nothing beyond telling the company to fix the problem and further increasing its monitoring.
In an email, Medtronic said it “has robust systems in place to monitor the safety of all of our products, including the HVAD device.”
The email said, “When any potential safety issues are identified, those issues are thoroughly investigated and relevant information is shared with regulators and healthcare providers.” The company didn’t respond to the pattern of late reports and incomplete investigations identified in FDA inspections.
Maisel, the director of FDA device evaluation and quality, once criticized asking companies to investigate their own devices. In 2008, as a practicing cardiologist, he testified to the U.S. House oversight committee about his concerns.
“In the majority of cases, FDA relies on industry to identify, correct and report the problems,” he said. “But there is obviously an inherent financial conflict of interest for the manufacturers, sometimes measured in billions of dollars.”
Maisel has since had a change of heart. When asked about his 2008 testimony, he told ProPublica that he now believes the regulatory system “generally serves patients well” and “most companies are well intentioned.”
HeartWare’s track record of questionable investigations was glaring in John Winkler II’s case.
A report submitted by HeartWare that matches the dates and details of Winkler’s case shows the company decided there was “no indication of any device malfunctions.” It told the FDA that the device couldn’t be removed from the body because the hospital said his family declined an autopsy. HeartWare added that the evidence of the device’s role in Winkler’s death was inconclusive.
Yet little of this appears to be true. Documents reviewed by ProPublica show an autopsy of the heart and lungs was performed a day after the death. Tina Winkler said she was told the pump was removed from her husband’s body and was available for inspection.
A year after John Winkler’s death, HeartWare recalled 18,000 potentially faulty batteries produced between 2013 and 2015. Tina Winkler came across the notice online and found her husband’s battery serial numbers on the list. The company never contacted her about it or any further investigation, she said.
Rewards, Not Penalties
As deaths and recalls mounted, HeartWare and Medtronic touted additional FDA approval to treat more patients and their attempts to develop new cutting-edge devices.
With the company on notice under the 2014 warning letter, HeartWare geared up to begin human trials on a smaller heart pump, called the MVAD or Miniaturized Ventricular Assist Device. It would be powered by a new algorithm to more efficiently pump blood. Industry analysts predicted robust sales.
In July 2015, implantations were set to begin on a select group of 60 patients in Europe and Australia. But they were abruptly stopped less than two months later after only 11 implants. Patients experienced numerous adverse events, including major bleeding, infection and device malfunction, according to published data.
HeartWare’s stock price plummeted from about $85 to $35 by October 2015. The next year, Medtronic bought HeartWare for $1.1 billion, replacing much of the company’s leadership shortly after.
Some former HeartWare investors filed a class action lawsuit in January 2016 alleging deception in the development of the MVAD.
According to the accounts of six anonymous former employees in the lawsuit, the details mirror the scandal surrounding Theranos, the former blood test company charged with fraud for raising more than $700 million by allegedly lying about its technology.
Where Theranos made empty promises of a test that only needed a few drops of blood, the suit alleges HeartWare promoted a life-sustaining medical device that former employees said had many problems and actually worsened blood flow, increasing clotting risks.
“Nothing really worked right,” one former HeartWare manager said in the lawsuit, citing “improper alarms, improper touch screen performance, gibberish on display screens — just so many alerts and problems.”
Leadership proceeded with human testing anyway, the suit alleges.
Months later, at an investor conference, HeartWare leadership acknowledged the pump and algorithm led to multiple adverse events. For two patients in particular, the algorithm would direct the pump to speed up so fast that it would try to suck up more blood than was available inside the heart for prolonged periods of time.
HeartWare and Medtronic settled the investor suit for $54.5 million in 2018, admitting no fault.
None of the allegations slowed the FDA as it gave Medtronic additional approval and support for its heart pump technologies.
In September 2017, the agency approved the HVAD as “destination therapy” for patients who were not heart transplant candidates and would rely on the device for the rest of their lives.
“We’re really excited about our HVAD destination therapy approval,” a Medtronic executive said on an investor earnings call. “That’s a real game changer for us in that market.”
Two years later, Medtronic announced it was developing a fully implantable version of the HVAD that would no longer need a cable coming through the waist to connect to power.
Even though issues with the HeartWare device had been unresolved for five years at that point, the FDA accepted the pitch into its new fast-track approval process for high-risk devices.
“Slipped Through The Cracks”
After Johnson Keelen’s pump failed in February, she found a news story about the recall notice sent to medical providers two months prior.
It said the company had identified a problem with pump restarts that could cause heart attacks or serious patient harm. Nineteen patients had been seriously injured so far, and two people had died. The recall warned that patients should be careful to avoid disconnecting the device’s power sources.
“I kept seeing Medtronic on record saying they notified patients,” Johnson Keelen said. “Who did they contact? No one told me.”
Her doctor later told her she must have “slipped through the cracks,” she said.
The current system for informing patients of new safety concerns with high-risk devices relies on a communication chain that can easily break. The device company contacts the FDA and health care providers that work with device patients. The FDA typically issues a public notice, while health professionals contact their patients.
But the agency admits most patients don’t know to look for formal FDA postings. And, experts say, the medical system can lose track of who needs to be notified, especially if a patient moves or switches primary care physicians.
Tina Winkler still wonders why she was never told about FDA-known safety issues with the HVAD. She said her husband’s medical team “had to teach me how to clean his wound, how to change his batteries and what to do if alarms go off. And they never mentioned any of this.”
She said, “If we had all the facts, there’s no way he would have gotten that device implanted in his heart.”
When FDA inspectors find serious safety issues with a medical device, inspection reports are not posted online or sent to patients. The public can obtain reports through a Freedom of Information Act request, but the agency’s records department has said new requests can be stuck behind a year-long backlog.
Patients can find warning letters online in a searchable database of thousands of letters from different FDA divisions, including the center for devices. But HeartWare’s 2014 letter is no longer available for public review because the website purges letters older than five years.
There are also few documents available in state courts about faulty products, because of restrictions on lawsuits related to medical devices. The restrictions date back to a 2008 Supreme Court decision in a case against Medtronic. The court found that U.S. law bars patients and their survivors from suing device makers in state court, essentially because their products go through such a rigorous FDA approval process.
Two recent patient lawsuits against HeartWare and Medtronic, including one filed by Tina Winkler, were moved from state court to federal court. In both cases, Medtronic filed to dismiss the cases because of the U.S. law that protects device companies. Medtronic and the families reached private settlements soon after.
Winkler and an attorney for the other family said they could not comment on their settlements.
Johnson Keelen, with a decommissioned HVAD still attached to her heart, wonders what that means for her and other patients’ chances of recourse.
“Why isn’t anyone now stepping up for the patient?” she asked. “They are now liable for taking care of us because we relied on them.”
“Run Its Course”
Deserae Cain, 33, is one of the 4,000 patients still relying on a HeartWare device.
She was implanted with the heart pump in late 2017, after suddenly being diagnosed with heart failure. Scans showed her heart was three times normal size. It took time for her to come to terms with needing a life-sustaining device — not long before her diagnosis, she had been going on five-mile runs. In the four years since, though, Cain has built a life around the HVAD with her fiance in their Dayton, Ohio, home.
They know the device can malfunction. In 2019, the pump failed for almost an hour as doctors at a nearby hospital struggled to restart it. Cain just tried to stay calm, knowing anxiety could threaten her unsupported weak heart. Months later, she needed an emergency experimental procedure to clear out blood clots developed within her HVAD.
Then, in 2020, Cain developed a widespread infection. Doctors told her she needed surgery to clean out and replace the pump.
Cain asked her medical team if she could switch to the alternative HeartMate device, which other patients told her presented fewer problems, she said. Doctors said the HVAD was better suited for her smaller frame.
But her new pump had problems soon after the surgery.
The device’s suction alarms, which alert when the pump is trying to pull in more blood than is available within the heart, sounded multiple times a day, for hours at a time, she said. Baffled by the issue for months, her medical team eventually turned off that specific alarm.
Soon after, her ventricular-assist specialist called her about a patient’s death linked to the belt that holds the device controller, she said. The belt had ripped and the equipment had fallen, yanking on the cable that connected the controller to the pump. Cain replaced her belt but it quickly frayed and had to be replaced again within six weeks.
Then, in June, she found out about Medtronic’s decision to stop sales and implants. Cain received a letter from her hospital mentioning a Medtronic support program, but it provided few specifics.
Cain wondered if things would be any different than before. Anxious about her future, she asked: “Are they just going to let it run its course until there is none of us left?”
Bots filing bogus applications in bulk, teams of fraudsters in foreign countries making phony claims, online forums peddling how-to advice on identity theft: Inside the infrastructure of perhaps the largest fraud wave in history.
This article was published on Monday, July 26, 2021 in ProPublica.
by Cezary Podkul
A Bronx man allegedly received $1.5 million in just ten months. A California real estate broker raked in more than $500,000 within half a year. A Nigerian government official is accused of pocketing over $350,000 in less than six weeks.
What they all had in common, according to federal prosecutors, was participation in what may turn out to be the biggest fraud wave in U.S. history: filing bogus claims for unemployment insurance benefits during the COVID-19 pandemic. (The broker has pleaded guilty, while the Bronx man and Nigerian official have pleaded not guilty.)
Fraudsters have filed in high volumes, sometimes obtaining payments from multiple states, despite the fact that a jobless person is barred from getting assistance in more than one state. One person, according to the U.S. Department of Labor, used a single Social Security number to file unemployment insurance claims in 40 states. Twenty-nine states paid up, sending $222,532.
But the problem extends far beyond a plague of solo scammers. A ProPublica investigation reveals that much of the fraud has been organized — both in the U.S. and abroad. Fraudsters have used bots to file online claims in bulk. And others, located as far away as China and West Africa, have organized low-wage teams to file phony claims.
In addition, the fraud has been enabled by a burgeoning online infrastructure, whose existence has not previously been reported in the mainstream press. Much of it is geared toward exploiting aging or obsolete state unemployment systems whose weaknesses have drawn warnings for decades. Communities have sprouted on messaging apps such as Telegram, where fraudsters trade tips on how to cash in. Hustlers advertise their techniques — or “sauces” (apparently short for “secret sauce”) — for filing bogus claims, along with state-specific instructions on how to get around security checks, according to a ProPublica review of messages on more than 25 such chat forums.
Some of the forums have thousands of participants and regularly offer stolen identities for sale, alongside tech tips, screenshots that ostensibly prove the methods work and advice on which states are easiest to game and which are “lit” — that is, still paying out fake claims. Users have created two Telegram channels in which they trade tips for filing claims in Maryland, whose labor department recently said it detected some 508,000 potentially fraudulent jobless claims between the start of May and mid-June. Participants in those forums have been talking about turning their efforts to Pennsylvania, where officials recently said they have “noticed an uptick” in fraudulent claims.
Telegram did not respond to requests for comment. But after ProPublica’s inquiry, 10 of the channels we asked about suddenly went dark, marked with this notice: “This channel can’t be displayed because it violated Telegram’s Terms of Service.”
Nobody has yet come close to putting a definitive number on the dollar value of fraud relating to pandemic-era unemployment benefits. But ProPublica performed a data analysis that hints at the massive scope. In state after state, the volume of initial jobless claims has far exceeded the number of estimated job losses. Across the U.S. from March to December 2020, the number of initial claims equated to 68% of the country’s labor force, which stood at around 164 million before the pandemic. In five states — Arizona, Georgia, Hawaii, Nevada and Rhode Island — the initial claims outnumbered the entire pool of civilian workers. By contrast, about 23% of American workers were out of a job or underemployed at the peak of the pandemic, according to the Bureau of Labor Statistics; in the most recent report that figure is just under 10%. (There are innocent explanations for at least some of the disparity: If a person loses a job more than once during a given year, they can legitimately file for benefits more than once during that time.)
The fraud estimates provided by states so far range from high to jaw-dropping. In Vermont, as many as 90% of claims in some months were determined to be fraudulent, state officials said in June. Rhode Island’s labor agency said in March that it suspected fraud in 43% of the claims it had received. The equivalent agency in California has confirmed fraud in about 10% of its payments and said it’s investigating a further 17%. The numbers have tailed off in Texas, whose agency says it now suspects fraud in about 14% of its claims.
“The system was the victim of what is one of the largest internet crimes in history, perpetrated against all 50 states at extraordinary levels,” said James Bernsen, a spokesperson for the Texas Workforce Commission. (Bernsen and officials for other states say the damage could’ve been even worse: They say they’ve been able to stop billions of dollars’ worth of bogus claims before they got paid.)
The U.S. Department of Labor’s inspector general estimates that at least $87 billion in fraudulent and improper payments will have made their way through the system by the time pandemic-linked jobless aid programs expire in September. That estimate is based on a historic assumption that fraud and waste eat up about 10% of unemployment insurance aid. The inspector general acknowledges that figure is likely too conservative in an environment where unemployment insurance fraud has “exploded” to “unprecedented” levels.
Other experts anticipate a dramatically higher tally. “From my experience, when this is all said and done, we are going to be counting in the hundreds of billions of dollars, not the tens of billions,” said Jon Coss, who heads a unit within Thomson Reuters that is helping states detect fake unemployment insurance claims.
Coss bases that assessment on the widespread fraudulent activity he’s seen. He said one U.S. state, which he declined to name, received fake claims — all purportedly from state residents — that originated from IP addresses in nearly 170 countries. They included countries historically linked to fraud, such as China, Nigeria and Russia, as well as more surprising ones, such as Cuba, Eritrea, Fiji and Monaco. Overall, Coss said, between 40% and 50% of the claims his group has analyzed seem highly suspect. He added, “It’s mind-boggling the level of fraud that we’re seeing.”
Defrauding unemployment insurance, or UI, programs, which pay out weekly benefits to workers who’ve lost jobs through no fault of their own, is likely as old as the programs themselves. But the rise of internet-based crime over the past 25 years or so, particularly the use of stolen identities to file fake claims on someone else’s behalf, opened the way to fraud on an epic scale.
The problem was already described as ongoing as early as 1998, when the Labor Department’s inspector general warned about the “continued proliferation of UI fraud schemes.” Four years later, a report by the inspector general said, “We are particularly concerned with identity theft or imposter schemes, which occur when individual identities are stolen and then used to apply for UI benefits.” The report noted that “individuals have the opportunity to defraud multiple states from a single location.”
In 2015, the agency detailed the “systemic weaknesses” that make UI programs vulnerable to fraud. (More on those later.) At least twice during the Obama administration, the Labor Department proposed reforms to Congress to address some of these inadequacies, primarily by boosting information sharing among states and federal agencies. Both times these efforts went nowhere. President Donald Trump included similar reforms in each of his four budget proposals to Congress. They, too, were never enacted.
Meanwhile, states’ funding for unemployment insurance administration was falling, largely because the economy strengthened and unemployment fell. At the start of the pandemic, funding for states’ unemployment insurance administration stood at a 30-year low, according to the National Association of State Workforce Agencies.
The funding squeeze led to some predictable results. California, which had hired Coss’s firm to help detect fraud, canceled that contract in 2016 to save money. Budget cuts also trimmed the ranks of the federal Labor Department’s inspector general’s office, which lost 28% of its criminal investigators between 2012 and 2020, according to figures provided in response to a Freedom of Information Act request.
At the same time, online criminals were expanding their targets. Years ago, Agari Data, a cybersecurity firm that helps catch email scams, began tracking a Nigerian cybercrime group it dubbed “Scattered Canary.” Agari produced a timeline of the group’s evolution that looks like an ever-branching tree: It grew out of Craigslist scams (2009) into phishing (2015) and then tax return fraud and credit card fraud (2016). Scattered Canary started targeting unemployment aid, too. “Similar to how the group pivoted from individual victims to business targets during the previous three-year period,” Agari wrote in a 2019 report, “Scattered Canary again set their sights on a new type of target in 2017 — government agencies.”
A steady procession of large-scale hacks of corporations and governments over the past decade provided the raw material needed to defraud government benefit programs. What scammers call “fullz” — a suite of data ranging from a person’s name and address to their Social Security number, date of birth and more — was increasingly easy to obtain. The Privacy Rights Clearinghouse, which tracks data breaches, tallied 2,229 hacks from 2010 to 2019, according to a database of such incidents. Those hacks exposed nearly 6.9 billion records.
When the pandemic seemed to threaten the foundations of the economy in March 2020, Congress responded quickly, launching the biggest expansion of unemployment insurance since the system was created amid the Great Depression. Lawmakers created three massive programs that workers could tap as states shut down to halt the spread of the deadly virus.
One program provided workers 13 additional weeks of aid once they exhausted their regular unemployment benefits. Another gave laid-off workers an extra $600 per week on top of existing benefits. A third, known as Pandemic Unemployment Assistance, funded 39 weeks of jobless benefits for workers traditionally excluded from unemployment insurance, such as self-employed “gig economy” contractors.
As of July 17, 2021, the three programs have collectively paid out about $604 billion, a total projected to reach up to $873 billion by the time the programs expire in September. That’s on top of states’ regular unemployment insurance plans, which paid out another $166 billion in jobless benefits between March 2020 and June 2021. That means total payments to the jobless could add up to about $1 trillion over 18 months.
Augmenting UI payments was not an unusual move for Congress — but the scale and speed were vastly different. For example, in the aftermath of the 2008 financial crisis, Congress funded an extra $25 a week on top of regular state unemployment benefits, then averaging around $300 a week. This time, Congress authorized a weekly $600 payment that was automatically added to regular UI payments, which require verification of prior income and employment.
But in its urgency to get cash to people with no work, Congress chose not to require such verification in the PUA program. It requested only self-certification of eligibility and no proof of income or identity. And successful applicants could get the extra $600 weekly payment, too.
With its loose application requirements, PUA instantly drew throngs of scammers. California state authorities have said that 95% of its confirmed fraudulent UI payments originated in PUA claims. Pennsylvania’s agency estimated that nearly 84% of its PUA claims were phony.
A scroll through the thousands of messages exchanged in Telegram chat forums provides a vivid illustration of what state unemployment agencies have been up against. The forums are easy to find: Simply searching for the acronym “PUA” can lead any Telegram user to a bunch of them (even after Telegram shut 10 of them in the wake of our questions). They have proliferated since the start of the pandemic, providing bustling marketplaces for criminals looking to obtain stolen IDs, methods for filing fake jobless claims or other advice. The most common products sold on the forums — state-specific sauces for filing claims — are hawked with daily frequency.
A Telegram user who posts under the handle “VerifiedFraud” recently offered his 1,300 chat room participants a new sauce for Pennsylvania’s system that he said would pay $700 a week. (VerifiedFraud also posted an earnest “new month prayer” on July 1, asking God to help his customers: “My prayer is all your sleepless night & day coming to this forum working & praying to God shall come through and Success will locate u.”)
Pennsylvania said it’s unable to speak to the validity of the guide. When ProPublica asked about the guide, VerifiedFraud responded with two emojis: 🙄🙄. Fifteen minutes later, he posted a message in his channel that seemed to rationalize fraud: “Virtually all these wealthy entrepreneurs you see around 90% of them started with something illegal to make enough money to run their business.”
The guides available on Telegram include lengthy step-by-step directions and screenshots detailing where to input stolen information. They offer advice on how to avoid triggering anti-fraud software, such as not to fill out part of the application on one device or from one IP address, then switch to another. One guide for filing claims in New York state warns users, “Don’t Copy and Paste in the text box. Type in the details while filling the text boxes. A script monitors activities like Copy&Paste to raise red flags.”
When such guides outlive their usefulness, new ones quickly pop up. “New CALI SAUCE WAVE,” read one of several messages posted in late June alongside a screenshot of what purported to be a successful unemployment aid application for California. The ad, offered by someone who calls himself the “King of Cali,” touted a video guide and a PDF walk-through. California’s Employment Development Department declined to comment.
Many of the pitches are blunt. One ad features the 2021 edition of a “Fraud Bible” for sale alongside 19 other sauces, including a guide for obtaining loans under the government’s Paycheck Protection Program, another frequent fraud target. The PPP loan program ended on May 31, underscoring the risk that the people selling the Fraud Bible may not be on the up and up. (When ProPublica requested comment, the seller or sellers of the Fraud Bible responded with variations of “fuck you.” The “King of Cali” responded by asking, “Are you ready to pay? I’ll give you everything you need.” Hours later, his profile was deleted and replaced with a warning: “Many users reported this account as a scam or a fake account. Please be careful, especially if it asks you for money.”)
Concerns about fraud are rampant inside the forums — but only insofar as the users fear they could become victims of it rather than perpetrators, say, by paying for a fraud strategy that no longer works. One Telegram forum called “$CAM C3NT£R” promises a “trusted” escrow service that clears sales of sauces, stolen identities and other services to make sure participants don’t rip each other off while preparing to rip the government off. (The administrator of $CAM C3NT£R told ProPublica he’s just trying to stop fraud inside his channel: “lot of fake people around and I’m doing escrow to protect my people.”)
To convey the success of their methods, sellers frequently post photos of wads of cash or screenshots of unemployment payments seemingly landing in their bank accounts or mobile payment apps. One user who recently advertised a Michigan sauce elegantly arranged $20 bills in the shape of the words “tap in” to encourage users to pay $200 via Bitcoin for his method, along with a screenshot of Michigan’s jobless aid website and the claim that “Michigan still hittin and is payin good money.” (A spokesperson for Michigan’s Unemployment Insurance Agency said the state is having success stopping fraudulent payments before they’re made and that “these type of messages amount to false advertising in order to elicit money from those who would steal identities.”)
Social Security numbers, names and dates of birth are frequently exposed in the forums by sellers wishing to give buyers a taste of what they’ve got. Sometimes users post links to files of data purportedly stolen via corporate hacks. In another dark web forum called White House Market, some participants offer to create identity profiles tailored to specific states where buyers want to file jobless claims. “No guarantee in success, but all pros would be made just for you,” read one such ad. The asking price was $70 per profile.
Such forums have attracted users from around the world, but user messages suggest that one country in particular appears to provide a significant set of followers: Nigeria.
That’s where Abidemi Rufai was bound on the evening of May 14 when he was getting ready to board the first-class cabin of a flight at John F. Kennedy International Airport after visiting his brother in New York. Instead, he was arrested by FBI agents and charged with stealing more than $350,000 in unemployment benefits from Washington state.
Details of that indictment shed light on how federal prosecutors believe such schemes are carried out, and the sheer variety of participants they have attracted: Rufai serves as a senior special assistant to the governor of a Nigerian state.
He allegedly used stolen identities to file fake unemployment benefits in 11 states, including over 100 applications in Washington, where state auditors have tallied a total of $1.1 billion in possible imposter fraud from nearly 250,000 potentially bogus claims.
Prosecutors say Rufai filed his claims using variations on the same email, sandytangy58@gmail.com, which he modified by inserting periods in different places, like san.dyta.ngy58@gmail.com or sa.ndyt.a.ngy58@gmail.com. Servers for state unemployment agencies treat those as different email addresses, but Google disregards periods when routing messages to a gmail account. That allowed Rufai and his co-conspirators the convenience of filing in multiple states while handling all of their correspondence from one email account. It’s a popular strategy: Another Nigerian national allegedly used it to claim more than $489,000 of unemployment payouts from 15 states, according to an affidavit filed in a similar case.
When completing unemployment benefit applications, Rufai and his co-conspirators directed states to pay benefits into Green Dot online banking accounts, one of several fintech platforms favored by criminals for their ability to quickly link debit cards with checking accounts that can be used to receive government benefit payments. In other cases, they directed payments into bank accounts controlled by “money mules,” people who would receive funds and then transfer them to Rufai and his co-conspirators in exchange for a fee. (Green Dot Chief Risk Officer Philip Lerma said the company has been working with state agencies to combat fraudulent activity. “This is an ongoing process of learning and refinement across the industry,” he said in a statement.)
Prosecutors said Rufai’s email account contained a “staggering” amount of stolen information, including passwords to people’s email accounts, security questions and answers, driver’s license numbers, and bank account and routing numbers, as well as more than 1,000 stolen tax returns.
Rufai had also used his gmail account to submit claims for Federal Emergency Management Agency disaster relief in 2017, according to prosecutors, followed by fraudulent submissions to the Small Business Administration and the Internal Revenue Service. After Rufai was charged, investigators at the IRS disclosed they had been investigating the sandytangy58@gmail.com account for several years. They told prosecutors that the agency had received 652 applications for fraudulent tax refunds from “dot variants” of that email, totaling $1.6 million. Of that, about $900,000 was approved for payment.
Rufai has pleaded not guilty. His lawyer, Michael Barrows, did not respond to repeated requests for comment. Barrows wrote in a bail filing in late June that Rufai has no criminal record and that prosecutors are offering “intentionally false and/or misleading information in an effort to exaggerate the crimes alleged while tarnishing the reputation of a well-respected Nigerian government official.”
Some scammers employ similar techniques on a mass scale by writing computer scripts, or bots, to automatically populate stolen identities into states’ application portals. New York suffered an attack from one such bot, which was able to repeatedly navigate and complete its application process, according to a person familiar with the episode. New York’s labor commissioner has said that the state is “aggressively deploying advanced resources” to fight fraud, including computer algorithms of its own.
Other fraudsters outsource such activity to human labor farms in low-wage countries, according to cybersecurity firm F5. Patterns of UI applications indicate workers in China, Brazil, Bolivia, Mexico and West African nations have been hired to input data into U.S. unemployment portals, according to Carlos Asuncion, F5’s director of solutions engineering. Asuncion said job ads to do that kind of work often pop up on websites catering to “microworkers” — people who earn pennies per task for such actions as creating gmail accounts, inputting email addresses or zip codes and solving captchas (the latter for as little as five hundredths of a cent per captcha). The labor can be even cheaper, according to Asuncion, than developing and updating a computer algorithm. As he put it, “It’s kind of an arms race.”
State unemployment agencies, burdened by aging technologies and siloed databases that don’t effectively communicate with each other, have been unable to keep up with any sort of arms race.
Federal rules require states to cross-check applicants’ information against a handful of databases when determining eligibility for jobless benefits. These include a national directory of new hires, quarterly wage records submitted by employers, and an immigration database that allows states to verify applicants’ citizenship status. The Labor Department also recommends that states check a database aimed at preventing claims in multiple states, as well as the Social Security Administration, prisoner records and an interstate data hub meant to help flag foreign IP addresses, suspicious email domains and applicants, according to a May 2020 compliance bulletinbulletin.
But performing all those checks requires modern technology. Many states are running their UI systems on software so obsolete that it’s hard to even find anyone able to service it. North Dakota had to recruit programmers from Latvia to prop up its systems last year, since the tiny Eastern European nation is one of the few places that still teaches the software used by the state’s unemployment insurance system. The clunky mainframe was “miraculously patched together, at considerable cost, to get us through the pandemic surge,” the state’s governor said in his December 2020 budget proposal, which sought to replace the system.
Amid the surge in claims, databases frequently froze up or slowed to a crawl, according to the Labor Department’s inspector general. States also reported not having the mainframe capacity to perform cross-matches for the large volumes of claims they were getting.
The result was that many cross-checks simply didn’t happen. Twenty states did not perform all the required database cross-matches, and 44 states did not perform all recommended ones, the inspector general found.
Even when states perform the checks, they can still be fooled. After all, the extent of identity theft means that criminals often input the information of a real person. Validating that the data is accurate doesn’t necessarily verify whether the claim was filed by the person whose data was used. “Verification and validation are two different things,” said John Pallasch, an assistant secretary of labor during the Trump administration. “That was the inherent flaw in all of this.”
Violinist Philip Payton got caught on the wrong end of this after he lost his job playing in Disney’s “Frozen” musical. When the pandemic shut down all Broadway performances in March 2020, word got around the orchestra that musicians could apply for unemployment insurance. By early April, Payton was receiving $504 a week plus the extra $600 authorized by Congress, his account shows. “This just helped me stay normal,” he said. “I could pay my bills and pay my half of the rent.”
But things changed in mid-September when the weekly payments suddenly stopped. He called New York’s Department of Labor and was told, he said, that he had a claim in another state. The agent didn’t tell him which state. A follow-up conversation in October ended the same way.
Many have shared Payton’s plight. In 2020, consumers filed nearly 400,000 complaints claiming their identities were stolen and used to claim government benefits. That was up more than 2,900% from about 13,000 such complaints in 2019, according to Federal Trade Commission data.
Unsure what to do, Payton kept calling until he finally got through to someone who told him the other claim was in Texas. Payton called the Texas Workforce Commission’s fraud line, but couldn’t get through to anyone.
By then, it was January and Payton was beginning to run low on cash. He kept calling and leaving messages but couldn’t get a call back. Eventually, through a chain of contacts, Payton reached an agent at the Texas commission, who told him he was listed as having filed claims in multiple states. The agent told him to call New York’s labor department to get his benefits restarted.
That prompted yet another round of phone calls. It was now early April. Payton had drained his savings and was falling behind on rent. Sometimes he’d spend three to four hours a day on hold while practicing violin or browsing job ads on the internet. He also started contacting organizations he thought might be able to help. Eventually, he connected with a paralegal at the Legal Aid Society, who sent an email to two New York labor department officials asking to expedite his case.
A day later, after eight months of missed payments and little work, Payton’s unemployment benefits finally restarted (and covered the earlier missed payments). But the experience shook his faith in the program. “There just has to be a better system,” Payton said.
The state unemployment agencies in New York and Texas both declined to comment on Payton’s situation, citing privacy restrictions. But Bernsen, the spokesperson for the Texas Workforce Commission, said in a statement that the state generally blocks suspicious claims by placing a “fraud block” on them. “This becomes a problem when the legitimate person needs to access those funds.” He added, “Fundamentally, the system is trying to do two things simultaneously that are at odds with one another: ensure quick payments to individuals and prevent fraud.”
Of the two issues, fraud prevention is now much more on the minds of officials in Washington. Gene Sperling, President Biden’s top official in charge of the pandemic response, said the issue goes beyond just unemployment insurance. The deluge of fraudulent claims has slowed as the surge in federal aid draws to a close, but he sees the proliferation of identity theft for government benefits as the larger threat. “It’s always a bad thing when somebody cheats and gets a few thousand dollars by doing this or that,” Sperling told ProPublica. “But we seem to be seeing something much larger and systemic.”
Sperling said the White House asked federal agencies to provide preliminary recommendations by mid-July on what the government can do to prevent criminal syndicates from using stolen identities to access government aid, whether unemployment benefits, small business loans or disaster aid given out by FEMA.
One idea that’s already being implemented is improving the Labor Department inspector general’s access to states’ unemployment compensation data, so that federal watchdogs can analyze claims for fraud in real time instead of individually subpoenaing states for the data.
The administration is also planning to spend $2 billion to modernize states’ unemployment insurance programs and strengthen them against fraud. The Labor Department is still figuring out how to allocate the funds, which were appropriated under the $1.9 trillion coronavirus stimulus bill enacted in March. One approach under consideration involves having the federal government develop centralized technology to help the 53 states and territories manage their jobless aid programs, instead of having them all fend for themselves and scramble to implement changes during crises.
Recent increases in funding to bolster fraud detection have also been a boon for ID.me, a company that has been hired by 27 states since mid-2020 and recently won a $1 billion federal contract to provide its services to more states. ID.me verifies that claimants are who they say they are by having them take selfies or asking them to appear on video and checking to make sure their faces match the photos on identity documents used to apply for benefits.
ID.me’s chief executive, Blake Hall, made headlines last month when he told Axios that he thinks taxpayers’ losses from UI fraud will top $400 billion. Hall defends that estimate, which some commentators criticized as wildly inflated. Hall based the figure on the precipitous drop-offs in new claim applications that states have experienced after implementing ID.me verification. In New York, for instance, state data confirms that new claims for PUA fell by 89% after ID.me went live in late March. And more than 50% of people who have already filed for UI benefits don’t even try to confirm their identities when asked to do so, according to Hall, who cited data from five states the company has worked with.
Fraudsters are trying to adapt. Telegram forums have lit up with offers of sauces and software that sellers claim can bypass ID.me. Hall said his firm monitors such ads and maintained that he has yet to find any that work. “There is no bypass,” he asserted.
That may be true today. But, as one recent post on a dark web marketplace noted, “The fraud business is an ever-changing type of business, meaning methods are constantly being updated because of new security implementations on the market.”
Florida's chief financial officer must name new board members for the Birth-Related Neurological Injury Compensation Association, as his office undertakes an audit and an investigation prompted by our reporting.
This article was published on Friday, July 23, 2021 in ProPublica.
by Carol Marbin Miller and Daniel Chang, Miami Herald
Now that the Florida Legislature and governor have taken action to overhaul a Florida program that serves families with brain-damaged children, its future could pivot on a state Cabinet member following through on his promise to make the program answer to the parents of disabled children.
Florida Chief Financial Officer Jimmy Patronis, whose office oversees the Birth-Related Neurological Injury Compensation Association, initiated an audit and an investigation of the program after the Miami Herald and the journalism nonprofit ProPublica published a series of stories this year showing how NICA had amassed nearly $1.5 billion in assets while frequently denying care to children it serves.
Patronis, who demanded that NICA “do better” the day the series began publishing, is expected to name at least five board members to oversee the program — three to replace members who resigned last month and two new ones authorized by a law passed in the most recent legislative session.
“For a public official, this is truly an opportunity to have real impact in a positive sense for the people this program was designed to benefit,” said Pat Wear, a former director of the Florida Advocacy Center for Persons with Disabilities who, as Kentucky’s commissioner of mental health, oversaw that state’s Traumatic Brain Injury Trust Fund. “He can do great things here by appointing people who have insight into these families’ tremendous needs.”
But Patronis, Wear said, faces a choice: He “can serve the system, or he can serve the people.”
On Tuesday, Patronis announced his first new board appointment, and the move suggests he may be listening to disability advocates such as Wear. He added Jim DeBeaugrine, who oversaw the state Agency for Persons with Disabilities before becoming a consultant and lobbyist. Recently DeBeaugrine served as interim CEO of the Arc of Florida, an advocacy group for people with developmental and intellectual disabilities.
In an interview with the Herald on Wednesday, DeBeaugrine said he anticipates the NICA board will undergo significant changes, both in its composition and in its orientation toward the children and families who depend on the program for care.
“I will be going into this with a critical eye, to change the focus of this organization,” DeBeaugrine said. “Everything about how it operates needs to be on the table. If I didn’t think that, I probably wouldn’t take the assignment.”
He added, “We have an opportunity to go in and make some fundamental changes in how the organization interacts with the families it serves.”
The leader of a Tallahassee-based advocacy group praised the appointment, saying DeBeaugrine will rightly focus on the needs of children and their families.
“He has a strong sense of wrong and right,” Lori Fahey, president of The Family Cafe, said of DeBeaugrine, who is the chairman of her board of directors. “His priorities are set on providing what is best for individuals with disabilities and their families.” The Family Cafe provides information and networking opportunities for people with disabilities and their families, and advocates for better care and services.
DeBeaugrine, Fahey said, has volunteered with the Special Olympics, as well as other service groups. For many years, he’s also cared for his brother-in-law, who is disabled. “Above all,” she said, “he’s a family member.”
Florida lawmakers created NICA in 1988 to immunize obstetricians — who claimed their malpractice premiums had become prohibitively high — from the consequences of a tragic birth that results in severe and lifelong brain damage. In most cases, parents are barred from suing the doctor who delivered their baby and the hospital where their child was born. In exchange, NICA promises to provide all “medically necessary” and “reasonable” care.
The Herald and ProPublica detailed how NICA earned more from its investments than it spent on profoundly disabled children who were routinely deprived of care, including medication, therapy, in-home nursing and equipment such as wheelchairs.
Within weeks of publication, Florida lawmakers rewrote the statute that governs the program, requiring administrators to cease delaying and denying care and making NICA more responsive to the needs of parents and family members.
Among other things, the new law says NICA must cover up to $10,000 a year in mental health care for family members of people in the program, spend up to $100,000 to make families’ homes accessible for wheelchairs and medical equipment, and make it easier for families to get and pay for care. The law also creates an avenue for appeal when treatment or therapy is denied.
It is a near-complete overhaul for an agency that has operated under the radar for 33 years, sometimes infuriating parents struggling to raise children with extraordinary needs.
Gov. Ron DeSantis signed the measure on June 21, and it took effect immediately. Now that the statute spells out how NICA must prioritize the health and best interests of children in the program, it’s up to the board of directors to set the tone for the program’s longtime administrators and case managers.
But the board, historically dominated by insurance and health care executives, is not functioning at the moment.
The legislation limits the tenure of the nonpaid board members to “no more than six consecutive years.” The provision affects four members of the board. Three of the four resigned in June, leaving the board without a quorum and forcing the cancellation of a meeting last month.
Those who resigned are Robert E. White Jr., who is the chief operating officer of The Doctors Company malpractice insurer; Dr. Steven Dukes, an obstetrician who is covered by NICA; and Bryan Anderson, vice president for government relations at hospital giant HCA Healthcare.
All had served more than six years consecutively. None of the three responded to an email from the Herald.
Filling at least five board seats presents Patronis with an opportunity to shape the program for years to come.
Even with its $1.5 billion in assets, NICA has remained one of the most obscure programs in state government, though certainly not free from politics and influence. The program has paid nearly $900,000 to lobbyists since 2011. It has paid nearly $200,000 to a public relations firm since 2020.
Though the new legislation greatly limits the discretion of NICA’s executive director, Kenney Shipley, to deny care and services to covered families, the Tallahassee-based program has not seen such a significant change in governance in its history. In the course of filling the two newly created board slots — one to be held by a NICA parent and another by an advocate for children with disabilities, which DeBeaugrine now fills — plus the three vacancies, Patronis can effectively transform the program’s oversight.
For some parents, a change in NICA’s management and culture is key to any meaningful reform, and that begins with the tone at the top.
“A change in leadership and governance is the only option,” said Michelle Perez, an Orlando-area mother of a 1-year-old boy in the NICA program.
“I hope that [Patronis] appoints board members who are qualified and impartial to both sides,” she added. Families served by the program “need a director to advocate for them too.”
NICA did not respond to a request for comment for this story.
As he seeks reelection to a second term, Patronis faces perhaps the most daunting task of his political career.
The son of a prominent Panama City family, Patronis managed his family’s seafood restaurant when term limits left then-House Speaker Allan Bense’s seat vacant in 2006. Patronis ran for the seat and won it, and he was reelected three times before he was term limited. His early endorsement of a little-known hospital executive, his longtime friend Rick Scott, for governor was rewarded in 2015 with an appointment to the Public Service Commission, which regulates utilities.
Scott propelled his career again in June 2017 by appointing Patronis — who has called Scott his mentor — to complete the term of Jeff Atwater, who resigned as CFO to take a similar job for Florida Atlantic University in Boca Raton. He beat his Democratic opponent, Broward businessman Jeremy Ring, in the 2018 election.
As the state’s top financial watchdog, Patronis’ office oversees NICA, but he had not previously made it a priority. In January 2019, shortly after Patronis’ election, the mother of a young woman with severe physical disabilities whose medical care is reimbursed by NICA asked Patronis in an email to “take notice, and, hopefully, take action” to reform the program.
Patricia Parrish of Titusville, whose daughter Delaina is now 23, told Patronis that NICA administrators showed favoritism toward some families, failed to apprise parents of benefits to which they were entitled, had failed for years to update written guidelines — when there were any — and lacked transparency.
“Our only option for ANY grievance, no matter how big or small, is [to appeal to an administrative judge], which is a burdensome and excessive demand on a parent whose job is the caregiving for one who is severely disabled,” Parrish wrote.
She added, “I don’t believe the original intent of NICA was to alienate and burden families who best know the needs of their children.”
Parrish, whose husband, Jesse J. Parrish III, has applied to be on the board, told the Herald that Patronis never responded.
The day the series was published, Patronis vowed in a prepared statement to “do some good on behalf of these families.” He initiated an audit of NICA’s finances, spending and investments, and announced a separate investigation by his office’s consumer advocate, Tasha Carter.
“NICA has got to do better,” Patronis wrote in the statement. “I cannot imagine or understand how difficult it is for families of children with neurological injuries, but we’ve got to figure out a way to make things easier for them.”
He added, “This program needs to treat these children with kindness instead of treating them as though they’re a liability for shareholders.”
After the resignations, the two remaining NICA board members were Dr. Samuel Wolf, an obstetrician who is covered by NICA and has served on the board since 2020, and Charles Lydecker, Foundation Risk Partners’ CEO, who has been on the board since September 2008. Lydecker, chairman of the board, has not only served more than six consecutive years, but his tenure would appear to be in jeopardy for another reason: The new law explicitly bars any representative of “a casualty insurer” from serving on the board’s “citizen” seat, which Lydecker now holds.
On April 30, one day after lawmakers passed the NICA reform bill, Lydecker contributed $1,000 to Patronis’ reelection campaign; four executives of his Foundation Risk Partners insurance agency added an additional $4,000 that day. Lydecker did not respond to phone calls and an email.
Previously, on April 5, Lydecker gave $25,000 to a political action committee, Treasure Florida, that is affiliated with Patronis. During the 2018 election cycle, Foundation Risk Partners gave $30,000 to Patronis.
Patronis’ spokesman, Frank Collins, declined Friday to discuss whether Lydecker wishes to remain on the board or whether Patronis will seek his removal. When asked whether the campaign contributions from Lydecker and his firm might influence those decisions, Collins said, “Absolutely not.”
“The appointments process is ongoing,” Collins said.
Michelle Perez, the Orlando-area NICA mother pushing for a clean slate at the top, said she experienced firsthand the difficulty getting needed equipment for her son, who turns 2 on Monday.
Perez said a hematoma at birth compressed her son’s spinal cord, resulting in permanent neurological damage. Jace cannot walk or talk, and he is cognitively impaired, though she does not believe severely.
Because Jace is so young, Perez said, both Medicaid and the boy’s private insurer rejected her request for a wheelchair, though both Jace’s pediatrician and physical therapist said he needed one. Jace is so floppy physically that he slumps in his stroller, and his doctor fears this will lead to scoliosis, a serious risk for youngsters in his condition.
“They were pointing fingers at each other,” she said. “We were getting the runaround.”
After reading stories in the Herald, Perez said, she contacted the consumer advocate in Patronis’ office, who called NICA on her behalf. She said NICA then agreed to pay for the wheelchair, which should be ready in about a month.
They are two sisters in two states. Both are dedicated healthcare professionals who watched in horror as COVID-19 swept through the nation's nursing homes, killing a staggering number of residents and staff alike.
One sister is now vaccinated. The other is not.
"Dude. Get vaccinated!" Heidi Lucas texted her sister Ashley in May from her home in Jefferson City, Missouri.
"Nope lol," Ashley Lucas texted back from Orbisonia, Pennsylvania.
"Don't you work with old people?"
"Yeah"
"What if you killed one of them? Get vaccinated," Heidi wrote.
Neither sister is budging as the Delta variant brings a new spike in coronavirus numbers across the nation.
Their divide mirrors America's larger one, where the vaccine to combat COVID-19 is eagerly embraced by some, yet eyed with suspicion and rejected by others.
It is the refusal group, including a significant percentage who work in the nation's nursing homes, that has confounded and alarmed healthcare officials who are at a loss as to how to sway them.
Nursing homes faced a shocking mortality rate during the pandemic. In the U.S., COVID-19 killed more than 133,000 residents and nearly 2,000 staff members between May 31, 2020 and this July 4, according to Centers for Medicare & Medicaid Services reports. The true toll is thought to be even higher as data gathering lagged in the early months of the crisis, health experts say.
Working in a nursing home became one of the "most dangerous jobs" in America in 2020, according to an analysis of work-related deaths by Scientific American.
Yet seven months after the first vaccines became available to medical professionals, only 59% of staff at the nation's nursing homes and other long-term care facilities are fully or partially vaccinated — with eight states reporting an average rate of less than half, according to CMS data updated last week.
Twenty-three individual facilities had vaccination rates of under 1%, the data showed.
Staff vaccinations have lagged even as the overall rate for residents climbed to 83%, according to the CMS data.
The strong vaccination percentage among nursing home residents is credited, in part, to an early campaign to bring the vaccine directly to facilities. That suggests availability is not necessarily the issue behind staff going without.
So, what is?
The question defies easy answers. Vaccine refusal is regional and often aligns not only with individuals' political alignment but also with their preferred news sources and which social media they follow.
Last week, President Joe Biden took aim at Facebook and other social media giants for failing to police vaccine misinformation that amplifies conspiracy theories and discourages people from getting vaccinated. "They're killing people," he said, directly blaming the platforms. On Monday, he recast the accusation to say it was specific individuals posting dangerous information who are culpable.
On Tuesday, U.S. Sen. Mitch McConnell, R-Ky., pleaded to "anyone out there willing to listen: Get vaccinated." While not mentioning skeptics specifically — including those in his own party — the Republican leader urged the unvaccinated to ignore "demonstrably bad advice."
COVID-19 cases are now surging in every state, with new hospitalizations and deaths almost entirely occurring among the unvaccinated. "This is becoming a pandemic of the unvaccinated," Centers for Disease Control and Prevention Director Rochelle Walensky warned last week during a White House briefing.
In May, CMS began requiring weekly reports on vaccinations of residents and staff at nursing homes and other long-term care facilities. The emerging data confirms many healthcare experts' worst fears, especially for Southern states.
Louisiana has the lowest statewide average: Just 44.5% of the staff at its long-term care facilities have been at least partially vaccinated, according to CMS data released last week.
Florida, the second lowest-vaccinated state, had a rate of just under 46% among its nursing home and long-term care staff, with Missouri, Oklahoma, Tennessee, Georgia, Mississippi and Wyoming all showing rates of less than 50 percent, according to the data.
Vaccination rates in assisted living facilities are not included in the data.
A separate American Association of Retired Persons analysis, released last week, showed that only one in five of the nation's more than 15,000 nursing homes were able to hit a goal, set by two industry trade groups, of vaccinating 75% of their staff by the end of June.
While cases in nursing homes have recently slowed, and most of the new COVID-19 infections are among younger people, some experts still worry of a return to darker days.
The CDC recently launched an investigation into deaths of residents at several western Colorado senior facilities possibly linked to unvaccinated staff, the Associated Press reported Wednesday.
"We need to sound the alarm," said Susan Reinhard, senior vice president of AARP and director of its Public Policy Institute. "Nursing homes were devastated by COVID-19, and many residents remain highly vulnerable to the virus."
Nationally, more than 89% of people 65 or older have received at least partial vaccination, the CDC reported this week. Still, public health experts have warned that even if fully vaccinated, the elderly may be vulnerable to "breakthrough" coronavirus infection because of compromised immune systems and other underlying health problems.
In Missouri's southern region, the overall rate of full vaccination in some rural counties is less than 20%, according to state health department and CDC tracking. The latest surge of the delta variant has turned the area into a "tinderbox," Steven Edwards, CEO of the CoxHealth hospital system in Springfield, recently told reporters.
On Thursday, 160 patients were being treated for COVID-19 at CoxHealth, a spokesperson told ProPublica. On May 14, there were 18.
Heidi Lucas directs the Missouri Nurses Association. She is pro-vaccine and has been pushing hard for nurses to get vaccinated, especially those on the front lines of patient care.
Lucas said it is impossible to separate the lack of vaccination among staff from the lack of vaccinations in individual communities. "Nurses are people too," she said. "They are on social media and are inundated with false information. How do you fight it?"
Her sister, Ashley Lucas, lives 900 miles away in Orbisonia, a small town of around 500 people about an hour south of State College. She's a traveling certified nursing assistant at area nursing homes and chose to skip the vaccine.
Her fiance and her children, ages 12 and 13, are also unvaccinated. "I don't consider myself an anti-vaxxer," she told ProPublica, bristling that some might see her as reckless or ill-informed.
Instead, she said her decision was carefully considered. It never made sense to her, she said, that the virus seemed to strike randomly, with some residents getting sick while others did not. She said she is not convinced the vaccine would change the odds.
She's also concerned after hearing that the vaccine could interfere with fertility — a contention that has been deemed false by the Centers for Disease Control and Prevention and the World Health Organization. It all leads her to believe more research is needed into the vaccines' long-term effects.
"This is just a personal choice and I feel it should be a free choice," she said. "I think it's been forced on us way too much."
Certified nursing assistants make up the largest group of employees working in nursing homes and other long-term care facilities, providing roughly 90 percent of direct patient care. They are typically overworked and underpaid, most earning about $13 per hour and receiving no paid sick leave or other benefits, said Lori Porter, co-founder and CEO of the National Association of Healthcare Assistants.
Porter said she is not completely surprised by the low vaccination rate. It comes down to trust, she said, both of the vaccines and of facility administrators who now say staff must get vaccinated. Refusal may feel like empowerment. "It's the first time ever they have had the ball in their court," Porter said.
On March 31, Houston Methodist Hospital mandated that all of its 26,000 employees be vaccinated by June 7 or lose their jobs. Jennifer Bridges, a nurse, sued along with 116 other employees, claiming the healthcare system had overstepped its rights and that she and the others refused to be "human guinea pigs," evoking the Nuremberg Code, a set of ethical standards established in response to Nazi medical experimentation in concentration camps.
On June 12, U.S. District Judge Lynn N. Hughes dismissed the closely watched case, taking offense to likening the vaccine to the Holocaust, which he called "reprehensible." Ten days later, 153 Houston Methodist employees either were fired or quit after refusing the vaccine. The judge's ruling has been appealed.
A handful of long-term care chains have similarly sought to mandate worker vaccines, but such action is far from widespread in the industry. One sticking point has been whether vaccination can legally be required, since all three available vaccines have only emergency use authorization, not full approval from the U.S. Food and Drug Administration.
The thornier issue, though, is whether the facilities can risk losing staff when they're already short-handed. Many workers have vowed to quit rather than be forced into vaccinations.
Aegis Living, a long-term senior care provider in three Western states, made vaccines mandatory for its roughly 2,600 employees on July 1. Dwayne Clark, founder and CEO, said initially 400 employees refused but when the deadline arrived, only about 100 left rather than be vaccinated.
"We lost some staff that we didn't want to lose," Clark told ProPublica, "but it felt like the right moral protocol to impose."
Recently the U.S. Equal Employment Opportunity Commission issued guidelines stating that employers can require workers to be vaccinated as long as medical or religious exemptions are permitted.
"Nursing home workers certainly have the right to make decisions about their own health and welfare, but they don't have the right to place vulnerable residents at risk," said Lawrence Gostin, a health law professor at Georgetown University. "Nursing homes don't just have the power to require vaccinations, they have the duty."
Still, the issue is far from resolved.
"America is a highly litigious country," Gostin said, "I expect the courts to consistently uphold nursing home mandates, because they are entirely lawful and justified. But there will likely be lawsuits at least until it is quite clear they are futile."
Diane Peters is a registered nurse in the Chicago suburbs who last year worked at a nursing home and is now working at a senior rehabilitation center. She does not trust the science behind the vaccine and is unvaccinated. So is her fiance.
Everything about the rollout felt like propaganda, she said. Development was too rushed. Clinical trials typically take years, she said, not months. "I don't think it's safe right now, it needs more time," she said she tells patients if they ask.
Most don't, she said. Neither do her co-workers. She has only been asked once by her employer if she was vaccinated, she said, declining to name the company.
Peters guesses about 40 percent of her colleagues are also unvaccinated, but said no one likes to talk about it because the divide surrounding the vaccine is "surreal." Staff members are tested regularly and are required to wear masks, she said.
She is doubtful mandates would stick. "They can threaten," she said, "but a lot of nurses would walk."
She trusts her instincts and her own research for now. When asked what would change her mind, she had one word: "Nothing."
Amid the current surge in COVID-19 cases in Missouri, a recent Facebook conversation between two Republican state lawmakers is telling.
Around Independence Day, State Rep. Bill Kidd, from the Kansas City suburbs, revealed that he has been infected by the coronavirus.
“And no, we didn’t get the vaccine,” he wrote in a post that has since been deleted. “We’re Republicans 😆”
State Rep. Brian Seitz, a Republican from Taney County, home to the tourist destination of Branson, commented on the post by falsely claiming that the virus had been developed by top government scientist Anthony Fauci and billionaire Microsoft founder Bill Gates. They “knew what was coming,” Seitz wrote.
“The jury is still out on the ‘vaccine’ (who knows what’s in that),” he wrote.
As the number of coronavirus infections rises around the country, lawmakers like Kidd and Seitz have adopted responses that trouble many health officials. In Tennessee, Republicans legislators threatened to shut down the state health department, saying it was targeting minors for mass vaccinations without the consent of parents. In Ohio, lawmakers allowed a doctor to testify at a legislative hearing last month that coronavirus vaccines could leave people magnetized (they can’t). During a hearing in the Montana Senate, a senator said he had read articles about “putting a chip in the vaccine.” (There are no chips in vaccines.)
Just as with his insistence that he won the election, former president Donald Trump’s attitudes about COVID-19 hold great sway with his supporters. Trump routinely bashed Fauci and infectious disease experts throughout the pandemic and questioned the severity of the coronavirus.
He also strongly carried Missouri’s southwest corner in the November election. While Trump beat Joe Biden by 15.4 percentage points statewide, in rural Taney County, the margin was 57.8 points.
Those supporters now tend to oppose efforts to get everyone vaccinated, believing they are being led by Democrats, said Ken Warren, a professor of political science at Saint Louis University who tracks state and local politics. “It’s a sad reality,” he said. “We can’t get together on anything, even fighting COVID.”
Such attitudes are accelerating an anti-vaccine sentiment that has run strong in the state legislature for years, particularly with lawmakers from the area of Missouri now facing increased infection rates. In 2018, Republican state Rep. Lynn Morris, a pharmacist from southwest Missouri, pushed a proposal to prohibit discrimination against unvaccinated children. Public school children are required to be vaccinated against several diseases, but families can claim a medical or religious exemption. The Legislature took up a similar proposal in 2019. Each failed.
Late last year, state Rep. Suzie Pollock, a Republican from south-central Missouri, proposed a bill to prohibit discrimination against people who choose not to be vaccinated against the coronavirus. She claimed the vaccine against the virus had “been rushed” and that its efficacy was “in question,” myths that have been relentlessly amplified by right-wing media.
The bill did not advance, but Gov. Mike Parson signed into law a related bill blocking local governments from requiring proof of coronavirus vaccination for people seeking to access transportation systems or other public services.
It’s not enough for some. “Now people are pushing back even against the idea of private employers like hospitals and health care providers telling their employees you have to be vaccinated,” said state Rep. Shamed Dogan, a Republican from the St. Louis suburbs. “I think that some of the legitimate concerns of government overreach have turned into this broader resistance to any vaccination, which is something I don’t agree with.”
Late in this year’s legislative session, Pollack pushed a proposal that would allow more parents to opt out of vaccinating their children against diseases including polio, measles and mumps. Pollock insisted she was not against vaccines, but said that people should have the freedom to choose. The House Elementary and Secondary Education Committee voted 10-6 in favor of the bill.
The full House defeated it on April 28 in a 79-67 vote.
“There is a tremendous skepticism about the good that government can do,” said Dan Ponder, a political science professor at Drury University in Springfield and director of the Meador Center for Politics & Citizenship there.
Ponder said many residents of southwest Missouri question the motives behind the policies that governments are pushing and show “a tremendous skepticism about information.” He added, “People don’t believe the vaccines are working. People don’t believe the federal government isn’t going to come down here and … basically strong-arm them into taking a vaccine.”
Indeed, when the Centers for Disease Control and Prevention deployed a two-person “surge response” team to southwest Missouri this month to combat an outbreak attributed to the dangerous delta variant, both Parson and U.S. Rep. Jason Smith, from south-central Missouri, tweeted opposition to federal agents going door to door to compel vaccines, something President Joe Biden’s administration said it never had any intent to do.
On Sunday, Springfield Mayor Ken McClure told CBS’ Face the Nation that his community was “being hurt” by rampant vaccine misinformation. He said people were sharing “health-related fears, what it might do to them later on in their lives, what might be contained in the vaccinations. And that information is just incorrect.”
Taney County is near the heart of the surge of the delta variant, which health officials say spreads more easily than earlier versions of the virus. The county is leading the state with the highest rate of coronavirus cases over the past seven days, according to Missouri health department data. Surrounding counties have similarly high rates, raising alarms for federal health officials.
Despite the spike, just 28% of Taney County’s residents are fully vaccinated, below the state average of 40%.
Seitz, who once owned a newspaper that promoted Branson’s entertainment industry, boasted in an interview that the Ozark tourist town was doing gangbuster business after a year of being mostly shut down.
“There were 27,000 people at our July 3 celebration,” he said, noting that he attended with U.S. Rep. Billy Long and “he said something like, ‘I’m so glad to see there are very few chin diapers in the crowd.’ The roar was huge … we’re so happy not to be forced by government to either wear a mask or take a vaccine.”
Seitz said he had no business telling his constituents how to live. The media has shifted its focus from deaths to the raw numbers of cases, he said, glossing over that most people who catch the virus don’t die. While 600,000 American deaths have been attributed to COVID-19, Seitz questioned whether people were dying from the disease or from existing health problems: “If a person is grossly overweight and caught a very virulent virus, did they die because they were in very ill health or did they die because of the virus?”
Seitz falsely claimed that COVID vaccines have not been tested and are unsafe. He backed down on his comment about Fauci on Kidd’s Facebook post, acknowledging that the virology expert did not create the coronavirus but asserting that he had been engaged for years in experiments to make viruses more dangerous or transmissible. Fauci has insisted the U.S. government did not participate in experiments that could have caused the pandemic.
Seitz said he had nothing against people who take the vaccine or wear masks. It’s their choice, he said. He said it wasn’t his job to keep people safe, but to keep people free.
“I haven't had the flu even since 1994,” he said. “Why would I take a vaccine? ... My life was normal for the past year, very few instances of wearing a mask, and so forth, and I’m just fine.”
Betsy Fogle, who recently completed her first session as a Democratic state representative from Springfield, said it was “fascinating kind of watching the narrative and the rhetoric” in the state capital of Jefferson City surrounding COVID-19, “and then watching it all get politicized and polarized. And then seeing that real-life impact that has on our neighbors back in Springfield when our hospitals are full and our hospital CEOs are begging people to get vaccinated and people just aren’t doing it.”
She said there was a mentality among Republican leaders “that COVID is a hoax, or that vaccines are a hoax, and that trickles down.”
She said she has several constituents who didn’t get vaccinated “because they think that this is a joke, and then these people reach out a month later to say, ‘I’m sorry I didn’t listen.’”
Kidd, the Republican from the Kansas City area, posted almost two weeks after his initial Facebook post that he was seeking prayers because he was “having a difficult time with COVID” and “really sick.” Kidd posted again on Thursday that he was “doing better” after the virus “kicked my butt.” He did not respond to a message from a reporter.
Fogle said she hoped Kidd recovered, “but that’s the frustrating part about it, is that our hospitals, our doctors, our people who are in charge of making these decisions are telling us how severe it is, and we refuse to accept that severity.”
She said she makes daily calls to everyone she knows who isn’t vaccinated “and what I hear is, ‘No, it’s my right, it’s my body, it’s my choice, like, stop bringing this up.’ And it’s hard to win those arguments.”
The limited response to postal workers' repeated appeals for help provides a window into the failures of two federal agencies: the Postal Service, which is one of the country's largest employers, and OSHA, which is supposed to protect workers.
This article was published on Friday, July 16, 2021 in ProPublica.
Last November, just as Minnesota was suffering through a punishing wave of COVID-19, managers at a St. Paul U.S. Postal Service distribution center allowed employees to hold a going-away party in the building.
Alejandra Hernandez, a mail handler at that center, was shocked when she saw the gathering: Almost everything about it seemed to violate pandemic safety policies. More than 15 of her colleagues were together in a break room meant for six, chatting, eating and not wearing masks.
That day, she filed her second of three complaints to the Occupational Safety and Health Administration. "I hoped that someone would come and make them take this seriously," Hernandez recalled.
She wasn't the only one complaining about problems at the facility — another employee had filed a complaint in July, alleging that workers weren't being alerted of potential exposures and the building didn't have proper ventilation. Others filed three more complaints in September alleging that the site's sanitation practices, personal protective equipment and quarantine measures were insufficient.
The limited response to Hernandez and her colleagues' appeals for help provides a window into the failures of the Postal Service, one of the country's largest employers, and OSHA, which is supposed to protect workers, in responding to the pandemic. Approximately 55,600 postal workers have tested positive for COVID-19 nationwide, and at least 197 have died.
In response to the complaints, OSHA conducted two remote inspections, done via phone calls and emails. It found "incidental deficiencies" that did not merit any fines or corrective action. Its report mentioned in passing a problem that was far from incidental for Hernandez and others: Managers weren't always notifying workers about possible exposure.
According to the USPS' official count, about 200 of the St. Paul facility's 1,500 employees have fallen sick with COVID-19. But state health department records obtained by ProPublica show that the Postal Service often missed or didn't disclose cases. The state tracked clusters of cases linked to the St. Paul building, many of which do not show up in the USPS's count.
Hernandez herself became one of those cases in March, when she got COVID-19 and spent six weeks in the hospital. She still struggles to keep her oxygen levels up, and her doctor has instructed her not to stand for more than 15 minutes at a time. She reported her illness to management, but no COVID-19 cases show up in daily case counts sent by management to union officials anytime near the day she got sick. The USPS did not respond to a question about the discrepancy.
That same month, one of Hernandez's colleagues at the plant died from the virus. Mary Ellen Moore, 62, had worked at the St. Paul plant for 35 years. According to her family, the USPS hadn't informed her of any possible exposures at work, and she wasn't aware of any cases in the building. But according to state health department records, there was a cluster of at least 11 cases on her side of the building when she got sick. Only three cases appear in the USPS' case report to unions.
In response to detailed questions from ProPublica, the Postal Service said it put comprehensive policies and practices in place at the start of the pandemic that help ensure the health and well-being of its employees. "We continue to follow the strategies and measures recommended by the Centers for Disease Control and Prevention (CDC) and public health departments," spokesperson David Partenheimer wrote in an email.
Postal workers have routinely sought help from OSHA during the pandemic, but their complaints have had little effect. Since February of last year, USPS employees across the country have filed more than 1,000 complaints alleging COVID-19-related hazards. Following those complaints, OSHA issued citations for four violations, all of which the Postal Service has contested. The USPS hasn't been obligated to make changes or pay penalties for any of the reported safety hazards.
Postal workers weren't alone in seeking help that never came. OSHA has often been absent during the pandemic. The Wall Street Journal identified more than 500 COVID-19 outbreaks in workplaces where workers had already warned OSHA of unsafe conditions.
A report earlier this year by the Department of Labor's inspector general criticized OSHA's handling of complaints during the pandemic. The watchdog specifically flagged concerns about remote inspections — the kind the government did at the St. Paul distribution center — in which problems "may go unidentified and unabated longer, with employees being more vulnerable to hazardous risk exposure."
OSHA is still investigating possible COVID-19 safety lapses at the USPS in 20 open cases, an agency spokesperson said, and it's possible that it will identify more violations. OSHA has also updated its pandemic enforcement plan to prioritize in-person inspections. "Our goal is to investigate every complaint we receive thoroughly, and our updated enforcement approach better ensures that we are doing that," the agency said.
Hernandez had access to protections and privileges that many U.S. workers don't: She's a union member, a citizen and a federal employee with access to paid sick leave, and she knows she has a legal right to a safe workplace. She and other colleagues used all the channels available to them.
But by the time she got sick, she said, she had stopped trying.
"The more I kept fighting it, the more it felt like I was just beating a brick wall," Hernandez said.
In high school, Hernandez was suspended for getting in the middle of fights, trying to help other kids who got picked on. "I'm not going to sit there and watch kids get beat up," she said. Now she's 35, with three kids, and she still can't sit back and not say anything.
Hernandez clung to the pandemic guidelines developed by the CDC. They were the closest thing she had to instructions on how to survive a pandemic while working alongside 1,500 colleagues. She was especially afraid that she might take the illness home — her sister had just had open heart surgery, her other sister has asthma, her mother is diabetic.
On March 19, while she was still waiting to hear back from OSHA about her November and December complaints, she took her son to the doctor for an ear infection. The nurse noticed red patches on his skin that Hernandez thought were an eczema flare-up, but that can actually be a symptom of COVID-19 in children. Hernandez felt like she had a cold. The county health department called the next day — both she and her son had tested positive. She doesn't know how she contracted the virus, but said that, besides her children, no one she spent time with outside of work tested positive.
Hernandez called in sick. That weekend, she started hallucinating, a symptom of her fever and lowered oxygen levels. She has no memories of the next few days, but her kids say she was trying to talk to people who weren't actually there. Soon, she was rushed to the hospital in an ambulance. She woke up in diapers, hooked up to an oxygen machine.
Though she called in to the USPS' absence reporting line the day she got her diagnosis, her case does not appear in daily case totals that district management sends to local union leaders. As ProPublica has previously detailed, the USPS hasn't consistently told workers when they've been exposed to sick colleagues, or how many cases have been reported in the buildings where they work.
Six weeks passed before Hernandez was released. While she was fighting off COVID-19, her 16-year-old daughter and extended family took over caring for Hernandez's 1- and 4-year-old kids. By the time her doctor cleared her for release, she could barely walk half a block without losing her breath.
On May 6, days after she came home, OSHA sent her a letter. The agency was responding to the complaint she filed five months earlier, when she reported that the USPS wasn't always following proper quarantine procedures — someone on her shift who had been sick came back to work even though they were still symptomatic. For the second time, OSHA did a remote inspection and concluded that there wasn't a problem; the USPS had policies that lined up with CDC guidelines. OSHA didn't do inspections following her complaints about maskless parties.
Though OSHA has issued safety guidelines pertaining to COVID-19 in the workplace, the recommendations don't have the force of law. President Joe Biden promised to issue an emergency standard that would give OSHA more power to enforce COVID-19-specific measures. When the standard came into effect in June, it applied only to healthcare workers, leaving out other hard-hit industries.
When Hernandez came back to work in late May, her colleagues didn't know she'd been sick. Rumors had spread that she'd gone on maternity leave. "They actually asked me if I had a baby," Hernandez said. When she first reported her illness to the USPS, she named five colleagues she'd had contact with to the agency nurse, so that they could be notified and quarantined. When she later checked with her colleagues, the USPS had only contacted and quarantined one of them, she said. (The USPS said it would not comment on individual cases.)
As ProPublica and the USPS inspector general later detailed, the USPS doesn't have enough healthcare staff to identify and quarantine every exposed worker. The inspector general also reported that the agency had no strategy to fill those roles. At the time, 21% of the USPS' nurse positions were vacant. The nurses are responsible for interviewing sick workers, doing contact tracing to identify exposed workers and clearing people to come back to work.
On the other side of the building from Hernandez's work area, Moore, a mail clerk, had started feeling sick in early February, a few weeks before Hernandez. Moore told her family she thought it was just the sinus infection and allergies she usually got around this time of yearBut a few days later when she visited her doctor, her breathing was so labored that the doctor had her sent to the hospital in an ambulance.
At first, it didn't seem like she would be there for long. She and her family stayed in touch with video calls and texts. When her grandson won student of the month for his grades, she celebrated with him over the phone. But her condition worsened. On Feb. 19, she was transferred to the intensive care unit and put on a ventilator soon afterward.
As the days went by, Moore used up her sick leave, then her vacation days. After those ran out, she had to take leave without pay. Once Moore could no longer speak, her older daughter took over calling her USPS supervisor to tell her how to allocate Moore's leave.
"My mom literally, up until she could no longer talk, was texting her supervisor, making sure how to do her time," said Vanessa Vasquez, Moore's daughter. "She was so worried about me talking to her supervisor, and how to divide her annual and sick leave and no pay."
On March 12, Moore's lungs collapsed. While she was on the ventilator, her two daughters, her grandchildren and her partner of 30 years visited to say goodbye.
"We were best friends," Vasquez said. "We were only 20 years apart. Everybody had different bonds with her." In an interview over Zoom, Vasquez's 12-year-old son Tony sat with his head in his hands. "She was everything," he said, before his voice broke.
The family tried hard to limit their exposure to COVID-19, avoiding grocery store visits and contact with anyone outside of the family. They were worried about infecting Moore's 87-year-old mother. No one in the family tested positive other than Moore's partner, who didn't show symptoms. He works for a PPE engineering company and said his employers always sent alerts when there were COVID-19 cases among workers. There hadn't been any alerts recently.
"I think that if they would've told her she'd been exposed, she would've gotten tested and maybe her outcome would've been different," her daughter said. "We don't know that, and we'll never know that."
Maryam Jameel is an engagement reporter working on community-sourced investigations out of ProPublica's Washington, D.C. newsroom.
Many American businesses received millions in federal pandemic aid intended to protect workers, but exploited loopholes and rule changes to lay off those employees anyway.
This article was published on Wednesday, June 30, 2021 in ProPublica.
Late last summer, after churning along through the pandemic with only a two-week pause, managers at FreightCar America called hundreds of workers into the break area at the company’s factory near Muscle Shoals, Alabama, to tell them that the plant was closing for good.
For some employees, the news wasn’t a shock: They’d been hearing rumors that management would move the work elsewhere for years. The timing, however, seemed odd. Only a few months earlier, the publicly traded company had received a $10 million Paycheck Protection Program Loan — the maximum amount available under a pandemic relief program designed to keep workers employed. Some had believed the funds would keep the doors open for a little while longer.
Nevertheless, the plant’s managers announced that all production would move to FreightCar’s new facility in Mexico, which meant most of the assembled workers would lose their jobs.
Jim Meyer, FreightCar America’s CEO, told ProPublica in an email that he had not intended to shutter the plant when he received the PPP money, and that it had allowed the company to keep workers on the job through most of 2020 despite a sharp dropoff in new orders.
Robert Bulman, however, thinks the $10 million just helped FreightCar’s Shoals plant keep producing while company officials got ready to shut it down.
“When the Mexican plant opened, we were told at the beginning they would just be helping Shoals and making parts for the trains,” said Bulman, who worked at the Alabama plant for seven years before getting laid off last year. “But the whole time, it was a setup, we were gone.”
FreightCar America isn’t the only large company to have taken out a multimillion-dollar Paycheck Protection Program loan and then laid off a substantial chunk of its workforce. An analysis of applications for trade adjustment assistance, which the federal government provides to workers whose jobs have disappeared due to imports, shows that at least half a dozen companies that applied for more than a million dollars apiece in PPP loans terminated more than 50 workers in 2020 after their aid was approved.
To be clear, the companies may have complied with program rules, which put a premium on getting money out fast. The regulations changed frequently in the months after the Congress established the PPP as part of the CARES Act in March 2020, and the law was later amended to allow more of the money to be used for non-payroll expenses. The law also contained many exemptions that stretched the definition of what qualifies as a small business.
A paper mill in northeast Washington state called Ponderay Newsprint, for example, went bankrupt and laid off 150 workers, two months after being approved for a $3.46 million loan. Its bankruptcy trustee John Munding said the money was used to pay workers and the government forgave the loan, while the company’s assets were acquired by a private equity firm.
A Nebraska aircraft parts manufacturer called Royal Engineered Composites was approved for $2.74 million in April 2020 in order to support 250 jobs, but laid off 99 workers by mid-May. The company declined to comment.
Canadian-owned Supreme Steel took $1.69 million in May 2020 for its plant in Portland, Oregon, which it closed five months later, terminating 112 employees. Spokesperson Rhandi Berndt said that “the closure was the result of market forces” and declined to answer further questions.
In order for PPP loans to be forgiven, the federal Small Business Administration initially required borrowers to spend 75% of the funds on payroll over eight weeks. Since the maximum PPP loan amount was for 2.5 times companies’ average monthly payroll in 2019, that should have guaranteed that wages and hours could be maintained, as required by the CARES Act.
In the case of FreightCar and some other borrowers, the original eight-week “covered period” of the PPP loan passed before layoffs occurred, allowing the companies to have their loans fully forgiven. But the other cases may have easily qualified as well, because Congress changed the rules.
Last June, after businesses protested that they couldn’t spend their PPP money fast enough in a stalled economy, the legislation was amended to require only that 60% of a loan go toward workers’ pay, and the covered period was extended to 24 weeks. Since borrowers had to spend less of the loan on payroll over a longer period to keep the money, they had wide leeway to let people go as they saw fit.
“It wouldn’t be difficult to lay off 50% of your workforce and still get full forgiveness,” said Eric Kodesch, an attorney at Lane Powell who has helped many clients with their PPP applications.
The SBA has not publicly released data on forgiveness of specific loans, but aggregate statistics show that so far, out of all applications processed, more than 99% of the total dollar value has been forgiven. The SBA declined to comment on individual borrowers or identify loans that have been forgiven.
There’s another reason why a casual reader of the CARES Act might think companies would not qualify for PPP money: Many are actually very large businesses.
In general, the CARES Act set an upper size limit of 500 employees. With a few exceptions, the law required SBA to count all “affiliate” companies toward that total. That would include companies owned by private equity firms as well as subsidiaries contained within holding companies. It exempted hotels, restaurants and franchises, but no other industries. (That’s why Shake Shack and Ruth’s Chris Steak House qualified for loans, though each returned the money after a barrage of negative press coverage.)
However, a number of program nuances allowed large companies to obtain PPP loans.
FreightCar laid off 550 people with the Shoals plant shutdown, according to a notice filed with the state of Alabama. Along with its headquarters employees, that alone would exceed the PPP’s ostensible 500-employee cap. But FreightCar availed itself of a loophole baked into the PPP. The SBA’s alternative size standards, a complex set of industry-by-industry thresholds that have been debated for decades, allowed it to qualify with up to 1,500 workers.
Originally, the SBA allowed foreign-owned applicants to count only their U.S.-based employees under the 500-person cap. That guidance changed last May, requiring foreign-owned applicants to count their entire global workforce. But plenty of companies had already gotten PPP loans, and were allowed to keep them.
For example, Ledvance LLC, a Chinese-owned global lightbulb manufacturer operating in the U.S. under the brand name Sylvania, was approved for a $9.36 million PPP loan in April 2020. Then, between May and July, it laid off 50 people while closing down a distribution center near Bethlehem, Pennsylvania. Ledvance spokesperson Glen Gracia said in an email that the layoffs were “unrelated to the pandemic and in full compliance with LEDVANCE’s participation in the Paycheck Protection Program.”
Then there’s Chick Master Incubator Company, which took $1.34 million in April 2020. In June, its corporate parent — a Zurich-based private office that invests the fortune of a long-established industrialist family — announced it would combine Chick Master with its other hatchery holdings and close the plant, laying off 68 people in Medina, Ohio, by year’s end. Chick Master didn’t reply to a request for comment.
One type of applicant, however, still likely should not have qualified: companies controlled by private equity firms whose total holdings exceed the SBA’s size standard for the borrowers’ specific industries. Cadence Aerospace, a supplier of aerospace and defense parts that itself has bought three companies in the last three years, is majority-owned by Arlington Capital, a private equity firm managing billions of dollars. Cadence was approved for a $10 million PPP loan in April 2020, and later that month laid off 72 people at its Giddens Industries subsidiary in Washington state, according to a notice filed with the state. Arlington Capital did not respond to a request for comment.
The Shoals plant was the last remaining U.S. manufacturing facility for FreightCar, a 120-year-old company headquartered in Chicago that had been shrinking its U.S. footprint for years. In 2008, it shuttered its plant in Johnstown, Pennsylvania. In 2017, it shut down its factory in Danville, Illinois. In 2019, it closed its plant in Roanoke, Virginia and announced it would open a new facility under a joint venture in Castaños, Mexico. When executives informed investors in September that the Shoals facility would also close and manufacturing would shift to Mexico, they projected $25 million in overall savings, including a 60% reduction in labor costs.
“Our manufacturing transformation is now largely complete, and we have taken control of our own destiny,” Meyer said on an earnings call in March. “We have dramatically repositioned our competitive profile and in so doing created a new company, one that is able to win.”
In 2013, the future looked different. When the Shoals plant opened, it offered about $12 an hour to start and a chance at advancement. One worker, who asked not to be named in order to protect her future employment prospects, left a tile-making job to become a welder, constructing a variety of rail cars, from hoppers to gondolas. Soon, she moved up to air brake tester, sliding underneath the massive steel vehicles to fix pipes.
“I went to FreightCar to retire,” said the worker. “I wasn’t planning on leaving when I got there.”
In the following years, safety, pay and management concerns led to a union drive. During the campaign, anti-union employees circulated flyers warning that the plant would shut down if workers voted to organize, and in 2018 they voted decisively against it.
As it turned out, the Shoals facility wouldn’t last long anyway.
Leading up to 2020, FreightCar touted the Shoals plant’s competitiveness. A marketing video showed production lines run by industrial robots and skilled workers. “This is the largest, newest, most purpose-built factory in North America,” boasted Meyer. “A modern, state-of-the-art factory in every sense of the word.”
But the company was still losing money, to the tune of $75.2 million in 2019. When the pandemic further slowed down orders, executives started talking up the new facility in Mexico instead.
“The Mexico labor rate is approximately 20% of that in the U.S.,” Meyer said on an earnings call in August 2020. “And the new plant provides other sources of savings beyond just labor.”
Also on the August earnings call, executives explained that loan proceeds had made up for some of the cost of the company’s move to Mexico. Chris Eppel, then the company’s chief financial officer, said that the money also “partially offset” operating losses and inventory purchases. Meyer still got his $500,000 base salary in 2020, plus stock options worth nearly that and a $1 million bonus for securing a $40 million loan from a private investment company.
FreightCar did not take out a second-draw PPP loan; updated rules excluded publicly traded companies.
After the plant closure announcement, the air brake tester found a job making dashboards and bumpers for Toyota. It takes three times as long for her to get to her new job as the 20-minute drive she had to FreightCar, and she’s paid six dollars less per hour. Although FreightCar gave employees a few thousand dollars in severance payments, she said all of hers went towards bills.
“It’s like starting all over again,” she said. “If they did right by us like they did their supervisors, maybe we’d be in more decent shape than what we’re in now.”
To qualify for Florida's NICA program, infants must suffer "substantial" damage to both body and mind. Though her body was broken, Brooklyn Grant’s mother and teachers knew she was smart. This is how they stood their ground — and won.
This article was published on Thursday, June 24, 2021 in ProPublica.
By Carol Marbin Miller and Daniel Chang, Miami Herald
COCOA, Florida — It is homework time at Ashley Grant’s house on a tidy, tree-lined street here. Grant places six crayons on a countertop. Her daughter, Brooklyn, still wearing her red school polo, sits in her wheelchair. She looks directly at a video camera and smiles.
“Four plus one is five,” says Kyle Stromquist, Grant’s boyfriend. “What about four plus two? How many is that?”
Brooklyn stares with purpose at a computer tablet displaying words and images and letters. As her hazel eyes gaze at the screen, the device gives voice to her answers.
Six, says the tinny, computer-generated voice.
“Bam!” Stromquist shouts. “Good!”
Brooklyn straightens in her chair and beams.
Brooklyn’s determination to learn is no surprise to the teachers who have observed her grit and resolve. They have come to embrace what her mom fought long to prove: that inside that broken body is a nimble mind.
“She’s smart,” Karen Rush, Brooklyn’s former special education teacher, said during videotaped testimony. “Never lets anything stop her.”
Not her disability. Not the expectations of strangers. And not the lawyers for a state-created program who fought for two years to persuade a judge that Brooklyn’s mind was as damaged as her body.
What Brooklyn’s mother sought was the chance to file a malpractice lawsuit against the medical providers who she believes made serious errors during Brooklyn’s birth. Such suits are severely curtailed in Florida under the 1988 law that created the Birth-Related Neurological Injury Compensation Association, or NICA.
NICA uses money from assessments paid by doctors and hospitals to offer parents like Grant an upfront payment and the promise of “medically necessary” care for the rest of a child’s life.
Grant believed her daughter had not suffered the severe cognitive disabilities necessary to qualify for the program.
To get her day in court, Grant would have to prove her daughter’s intelligence.
The legal battle over whether NICA could shield Brooklyn’s doctor and hospital from all liability would last 836 days.
There is a perverse irony at the root of NICA. Hundreds of parents facing financial ruin desperately want to get into the program but can’t because the circumstances of their child’s birth don’t fit the precise parameters. Maybe their son or daughter weighed 5 pounds, 4 ounces, instead of the minimum 5 pounds, 5 ounces. Others, mostly those whose children have the most severe disabilities, want out so they can try to impose a measure of accountability on their doctor by pursuing a lawsuit.
Those who want out of NICA sometimes meet M. Mark Bajalia, a lawyer for NICA and part of the legal and emotional gantlet they must successfully navigate. He has represented NICA in administrative court dozens of times, making him one of the program’s most prolific attorneys.
On Dec. 3, 2018, Bajalia came to Cambridge Elementary School — then Brooklyn’s school — to depose her teachers and therapists, who had reported that she was, as Rush said, “smart.” Under the law, Brooklyn’s neurological injuries at birth had to “substantially” harm both body and mind in order for her to be accepted by NICA.
Bajalia had never laid eyes on Brooklyn. And yet to the staff and teachers he interviewed, it seemed he was suggesting that they were embroidering her mental abilities.
“It’s your testimony as you sit here today that [Brooklyn] does not have any cognitive or intellectual impairment?” the lawyer asked Rush.
He was seeking to judge Brooklyn by standardized test scores, not by what her family and teachers knew by being with Brooklyn and watching her develop alongside her peers.
As Bajalia fired off pointed questions, the teacher had an epiphany: While Rush and the other educators, therapists and aides marveled at Brooklyn’s resilience, Bajalia seemed to her to see only the child’s flaws.
“You just want me to say what you want me to say,” she snapped.
Bajalia did not respond to phone calls and an email from the Miami Herald. Reporters also asked a NICA administrator to pass along a request for comment.
NICA was Florida’s answer to obstetricians’ complaints about the cost of malpractice insurance. Only one other state, Virginia, has a similar program.
Since NICA’s inception, families received a one-time $100,000 payment and a promise of lifelong care that was “medically necessary” and “reasonable,” as determined by the program.
In exchange, families could not sue the doctor or hospital. Aside from annual premiums — obstetricians paid $5,000 and hospitals contributed $50 per live birth — the medical providers paid nothing; the costs were borne by the fund.
NICA accumulated nearly $1.5 billion in assets.
Gov. Ron DeSantis signed a bill into law this week to increase the one-time payment to $250,000 after a series of reports by the Miami Herald and ProPublica documented how some parents felt NICA was hoarding money while depriving them and their children of services and support — from wheelchairs to modified vans to therapies that could improve their children’s lives. The law, designed to reform the program, significantly improves benefits for families.
Ashley Grant could escape NICA and sue the doctor, potentially for much more than what NICA would pay, but only if she could prove that Brooklyn was cognitively whole. When cases involving major birth injuries go to court, they can and often do generate millions.
“Brooklyn on paper is not who she is. She is very intelligent,” Grant said of her daughter, who turned 8 in April. “She shows you who she is by getting to know her. And you’re never going to see that on paper.”
Grant said it hurt to see the grilling over her daughter’s disabilities by a man who appeared to know little of Brooklyn’s struggles and triumphs.
“Obviously, it is devastating,” she said. “It didn’t matter to NICA. ... They don’t know who your child is. You can argue until you’re blue in the face. But they want to hear what they want to hear, and that’s it. They didn’t hear us telling them how intelligent she is.”
So, she had to prove it.
The quiet is pierced by giggles and a high-pitched primal scream. Brooklyn doesn’t like physical therapy.
She is wearing high-top sneakers in her trademark hot pink. Stromquist, Grant’s boyfriend, fastens orthotic braces on top with velcro. The braces — pink, of course — have been customized, decorated with ice cream cones, donuts, stars and unicorns.
Precious as they may be, the braces leave marks on her legs, especially after therapy.
Brooklyn wobbles on rubbery knees, gamely trying to stand upright, even for 10 seconds.
Stromquist, a Cape Canaveral firefighter and a father figure for Brooklyn, grips her tiny hands in his to steady her and speaks tenderly as he puts her through the grueling routine:
“Look at me. Look at me. Look at me. Look at me.”
“Lean forward like you’re giving Daddy a hug. ... If you want to walk one day, this is how you’re going to have to do it.”
Brooklyn betrays no bitterness that her vibrant mind is trapped inside an uncooperative body. As digitized voice technology advances, perhaps she will someday be able to discuss “hypoxic-ischemic encephalopathy” — one of her diagnoses — even if she cannot physically overcome it.
The sight of her in her wheelchair is jarring: That little body in a big person’s machine.
Brooklyn recently arrived home from school, her bright hair pulled back in a ponytail. Her hazel eyes danced over the computer screen. Juice, said the artificial voice. Brooklyn was thirsty.
She asked to sit on her mom’s lap.
It shouldn’t have been this way, her mother said. It didn’t have to be.
Grant was 23 and healthy, working full time as a sales associate for Bath and Body Works. Her pregnancy had been uneventful.
She expected to deliver at Wuesthoff Medical, now called Rockledge Regional Medical Center, a 298-bed hospital just southwest of the Kennedy Space Center. Dr. Hae Soo Lim — a 1993 graduate of the University of Florida’s medical school, whose obstetrics residency was at the University of Miami — handled the delivery when Grant’s water broke about 4 a.m. on April 1, 2013.
Doctors estimated Grant had been pregnant for about 39 weeks, making it a full-term delivery. She was given a drug commonly used to speed up contractions and hooked up to a fetal heart monitor to measure and record her baby’s vital signs, Grant alleged in court papers.
At about 8:35 that night, the monitor showed signs that Brooklyn was in trouble, the family alleged in court filings. By 9:57, the family said, the monitor had recorded three decelerations of Brooklyn’s heart rate — indicating the baby was in distress. The nurses overseeing Grant’s delivery failed to appreciate and act on the warnings, Grant’s court papers said.
Grant remembers a hospital staff surrounded and badly distracted by a major, messy renovation. “The hospital was under complete construction,” she said. “It was chaos. And I feel like they shouldn’t be able to have such chaos going on in a hospital when people’s lives are at stake.”
Eighteen hours in, Grant was told she was no longer dilating, her daughter was “sunny side up” — head down, facing inward — and unable to transition through the birth canal, she said. Brooklyn was delivered via an emergency C-section. But by then, Grant said, Brooklyn had sustained catastrophic neurological damage. Brooklyn had to be revived. She began to have seizures almost immediately.
At some point during labor, Grant said, the hospital and the doctor had thrust a stack of papers in front of her to sign. Buried among them was an acknowledgement of NICA. Grant said she signed it without understanding what it meant.
Grant did not see her daughter for three hours, she said. She could not hold her for seven days. While Grant recovered at Wuesthoff, her daughter was driven in a mobile intensive care unit to Florida Hospital, then to Winnie Palmer Hospital for Women & Babies in Orlando, the latter better equipped to handle a newborn with extensive neurological damage.
Within an hour or two, Grant said her obstetrician came into her recovery room and apologized. “She did say, ‘I’m sorry, I’m sorry.’ But that was it.”
Attorneys for the hospital declined to comment, adding that, “We can say that the health and well-being of our patients is our top priority.”
In court pleadings, Wuesthoff’s lawyers said the hospital bore no responsibility for any injuries Brooklyn sustained. “The injuries and damages alleged to be suffered by [Brooklyn] were caused by persons and/or entities over whom [the hospital] had no control or duty to control,” lawyers wrote, specifically mentioning Lim and a nurse, who did not work for the facility.
An attorney representing Lim, who works for the Florida Department of Health, said in an email that his client will not comment “on pending legal matters or individual patient cases.”
In court records, the Health Department, speaking for Lim, wrote that “it is not guilty of any negligence which was the legal cause of [Brooklyn’s] injuries.” DOH blamed Brooklyn’s brain damage on “acts or omissions by other persons, independent contractors, corporations, or professional associations or entities other than” the department.
To this day, no one from the hospital has expressed regret, Grant said. As for the doctor’s apology: “It’s not going to give my daughter the life that she deserved.”
Anyway, Grant said, she wants answers, not remorse.
Despite the restrictions placed by the NICA law, Grant began her quest to hold the hospital responsible. She sued the hospital and Lim in 2015. As happens in the NICA process, the judge suspended the lawsuit and required Grant to start all over, this time in front of an administrative judge, the kind that adjudicates NICA cases.
After 10 months, NICA made its standard offer: Drop the litigation. Collect $100,000 now and get Brooklyn lifelong medical care, provided it is “medically necessary.” The care would mainly come through Medicaid — Florida’s safety-net insurer for indigent and disabled people, which has frequently been accused of relegating patients to an inferior health care system.
NICA says it is responsible for anything Medicaid declines to cover.
But Brooklyn was already in Medicaid, and Grant had no desire to stay there. She already had grown weary of Medicaid’s denials of care and equipment — and she wanted her daughter to be treated by “the best” doctors, not just the ones willing to accept Medicaid’s low reimbursement rates.
Grant indicated she would reject the offer. Two months later, Bajalia was brought in to represent NICA’s interests. That largely involved trying to prove that Brooklyn was intellectually impaired, a finding that would force the family to accept NICA compensation.
Bajalia went to Cambridge to depose four of Brooklyn’s teachers, therapists and aides. They all marveled at Brooklyn’s mental abilities. Bajalia was not having it. He seemed to dismiss their testimony, Grant said, as the magical thinking of supporters who were personally and heavily invested in Brooklyn’s success.
The friction between Bajalia and Brooklyn’s teachers showed in the language they chose, including Bajalia’s use of the word exceptionality, as in “exceptional education.” “Exceptionality,” Bajalia said, is “just a politically correct way of saying because of her physically handicapped limitations.”
He asked Sheila Burkhardt, Brooklyn’s former speech pathologist: “Now, [Brooklyn] is in a normal classroom, correct?”
“A general education classroom, yes,” Burkhardt answered, emphasizing the words.
“I mean no disrespect,” Bajalia continued, “just because she’s in a normal classroom doesn’t mean that [Brooklyn] is normal, correct?” Normal is another term that parents of children with disabilities and their advocates find objectionable.
He asked about testing. Brooklyn had been tested well over two years before — when she was 35 months old — and that testing showed her significantly behind her peers. Why not judge Brooklyn based upon the tests? he asked.
“It’s considered old data,” Burkhardt said.
“It’s your testimony, as you sit here today, that [Brooklyn] does not have any cognitive or intellectual impairment?” Bajalia demanded of Rush, Brooklyn’s former teacher.
“I do not see her having any cognitive or intellectual impairment.”
Bajalia then asked Rush about Brooklyn’s physical disabilities: “You didn’t feel the need to test her motor abilities?”
“Obvious,” Rush interrupted. “She’s not going to stand on one foot. I’m not going to ask her to stand on one foot.”
“Come on up Brooklyn.”
An aide pushes Brooklyn’s wheelchair to the front of an auditorium on awards day. The other children fidget in their seats and whisper. One little boy raises his hand.
“Perseverance is the ability and self-control that forces you to work through challenges,” the speaker says. “Having perseverance means that, when you are facing a challenge, you use your mind and your body to overcome it. Perseverance means you are able to wait and to work through difficulties.”
“Brooklyn shows perseverance every day. She overcomes obstacles with grace and never gives up. She has taught the class what perseverance looks like. I am blessed to be her teacher, and her classmates have learned incredible things from her. She is an amazing little girl and I am so proud of her.”
The classroom erupts into applause.
The sparring with Bajalia, unpleasant as it was for Brooklyn’s teachers, helped determine the outcome. NICA had hired a neurologist, Laufey Sigurdardottir, to review the case, which eventually included the teachers’ observations. Her final report, dated Dec. 29, 2018, concluded that Brooklyn was not substantially mentally impaired.
She was, therefore, ineligible for NICA. An administrative law judge issued a final order dismissing the administrative law case in February 2019.
In an email, NICA administrators said the legal process in Brooklyn’s case worked exactly as intended: Two medical experts reported that Brooklyn met criteria for NICA participation. When Brooklyn’s mother disagreed, Bajalia elicited testimony “for fact-finding purposes, asking questions of each witness to better understand the circumstances of the case.”
“The initial medical review produced a determination that the child met NICA qualifications, information during deposition to explore that determination indicated otherwise, and, as a result, the medical experts changed their determination.”
Although it did not comment specifically on Bajalia, NICA said that the program’s lawyers question family members and other witnesses to gain information only, and that “sometimes those questions challenge the witnesses’ positions in order to draw out a full picture of the case.”
The statement added: “NICA expects all of its attorneys to act in a professional and respectful manner while representing NICA. NICA does not instruct its attorneys to portray children in any specific manner during these depositions, although we certainly hope and expect that children and their families will be treated with courtesy and respect.”
Michelle DeLong, one of Brooklyn’s lawyers, said Bajalia kept insisting that Brooklyn be evaluated by standardized intelligence tests, though Brooklyn was simply not capable of wielding a pencil — let alone filling in little bubbles for answers. “He got caught up in standardized testing to prove she was cognitively impaired.”
As to Bajalia’s language, “tone deaf is the right word,” DeLong added. “I think he really believed he was doing a good thing by offering these NICA benefits to Brooklyn, and he just couldn’t understand why the family wouldn’t take them,” she said, adding that the $100,000 NICA proffered fell far short of Brooklyn’s needs.
“It was a battle, because he could not put himself in the shoes of the family and understand their perspective,” DeLong said.
After more than two years, Ashley Grant had won the right to pursue her lawsuit, to try to hold to account the medical providers whose negligence she believes harmed her daughter. And though Grant’s exit from NICA was a victory for the 31-year-old, her quest is far from over. Her medical malpractice claim in Brevard County Circuit Court has been set for trial in June 2022.
She’s deeply in debt with Brooklyn’s medical bills, some already in the hands of collectors.
At least, she said, they have a chance. If she had stayed with NICA, “there’d be no justice for Brooklyn.”
Selling blood plasma in the U.S. could net Mexican residents hundreds of dollars a month — if they donated often enough. But some were putting their health at risk to do so.
This article was published on Thursday, June 24, 2021 in ProPublica.
By Dara Lind, ProPublica, and Stefanie Dodt, ARD German TV
A federal agency is closing a legal loophole that allowed U.S.-based blood plasma companies to harvest plasma from thousands of Mexicans a day, who were lured by bonus payments and hefty cash rewards, as a 2019 ProPublica and ARD German TV investigation showed.
U.S. Customs and Border Protection announced on June 15 that effective immediately, it would no longer permit Mexican citizens to cross into the U.S. on temporary visas to sell their blood plasma. A statement provided to ProPublica and ARD said that donating plasma is now considered “labor for hire,” which is illegal under the visitor visa most border residents use to cross into the United States to make donations.
The U.S.-Mexico border is still mostly closed to “nonessential travel” due to the COVID-19 pandemic, and the Biden administration has said those restrictions will remain in place through at least July 21. The travel restrictions have greatly reduced the cross-border plasma business. However, Paul del Rincon, a customs chief based in Eagle Pass, Texas, estimated in an interview posted to Facebook with broadcaster La Rancherita del Aire that even during the pandemic, 300 to 400 people crossed daily to donate plasma. In other border cities, like El Paso, Texas, donors have not been allowed to cross since the restrictions went into effect.
Before the pandemic, donors could make up to $40 a donation and over $4,000 a year for those who donated as often as possible. U.S. law caps donations at 104 a year, compared to Europe’s recommended frequency of 33 times per year. In Mexico, selling plasma is entirely illegal.
However, with COVID-19 causing a 20% decrease in plasma donations in 2020, according to the industry group the Plasma Protein Therapeutic Association, prices have soared. Plasma centers in El Paso offered as much as $700 a month for twice-weekly donations in summer 2020, according to the El Paso Times. At the beginning of June, Facebook posts by plasma centers showed offers of up to $1,000 a month.
“We know a lot of people depend on what they receive from selling plasma to support themselves in Mexico,” del Rincon said. “And we know the plasma centers also count on them. And this is going to hurt them.”
The U.S. is the biggest global exporter of blood plasma — a market that reached $21 billion in 2019 — and plasma centers openly relied on cross-border donations to keep their supplies up. The industry group told ProPublica and ARD that they plan to lobby against the new restriction: “The Plasma Protein Therapeutics Association looks forward to working with CBP and the Biden administration to quickly reverse this policy,” a spokesperson wrote.
However, as ProPublica and ARD found, frequent plasma donation was also hurting the Mexican citizens who relied on the system for money. Frequent donors were underweight and showed low levels of antibodies.
The B1/B2 visitor visa used most often by Mexican border residents permits some business activity, but it does not permit Mexican citizens to work in the U.S. Before the new announcement, plasma donation fell into a legal gray area, with some CBP agents refusing to let people cross for donations but others allowing it.
Del Rincon told La Rancherita del Aire that in most cases people with appointments to donate plasma would just be asked to return to Mexico. However, he said, they risked losing their visas if they heard about the new instructions and went ahead with plasma donations anyway. “What’s important is that people not put their visas at risk,” del Rincon said.
It’s not clear how CBP will enforce the new policy beyond simply asking people why they’re crossing. Even before the guidance was issued, regular plasma donors often lied to agents about the purpose of their visits, claiming they were going shopping or visiting relatives.
Mexican residents are required to present their B1/B2 visa Border Crossing Cards at the plasma center when they donate, so plasma centers will know when donors are violating the new policy. Grifols, a company that operates several border plasma centers, answered what it said were “hundreds” of messages from donors on its Spanish-language Facebook page last week: “The answer is that for the moment (indefinitely) you can’t donate plasma,” the company wrote. But if any plasma centers do continue to accept cross-border donations in violation of the new policy, it’s not clear whether the U.S. would crack down.
U.S. Citizenship and Immigration Services told ProPublica and ARD in 2019 that companies could face criminal charges if they engaged in a “pattern or practice of knowingly hiring” people who aren’t authorized to work in the U.S. — including B1/B2 visa holders. However, the CBP statement doesn’t mention any consequences for plasma centers if they violate the new policy.
