Vaccinations for the coronavirus are supposed to be free and available to all Americans regardless of insurance or immigration status. For some, that isn’t how it has been playing out. Here are common false barriers to look out for.
This article was published on Thursday, April 1, 2021 in ProPublica.
As the United States seeks to end its coronavirus crisis and outrun variants, public health officials recognize it is essential for as many people as possible to get vaccinated. Making that easy is a major part of the plan. According to the Coronavirus Aid, Relief, and Economic Security Act, the vaccine is supposed to be free to everyone, whether they’re insured or not. And the Biden administration has directed all vaccination sites to accept undocumented immigrants as a “moral and public health imperative.” But this promise has not always been fulfilled, ProPublica has found.
At vaccination sites around the country, people have been turned away after being asked for documentation that they shouldn’t need to provide, or asked to pay when they owed nothing.
In part, this has happened as businesses administering the vaccine try to recoup administrative fees they are allowed to charge to the government and private insurers. To aid them in passing along the bill, major pharmacies ask those being vaccinated for their Social Security numbers and insurance information. They aren’t supposed to deny a shot to people who aren’t covered or try to make them pay the fees. But both of those things have happened.
Workers at vaccine sites have also turned away people who they felt didn’t provide sufficient proof that they belonged to an eligible group, demanding to see medical records or other evidence of underlying conditions. While the vast majority of states don’t require such documentation, government officials haven’t always communicated that clearly.
The resulting barriers can be higher for those less equipped to advocate for themselves, such as undocumented people and those who do not speak English. Because of this, even as vaccines have become more widely available, they are still not easy for some of the most vulnerable people to access.
This is part two ofa series documenting barriers to access to COVID-19 vaccines. If you or your family members are experiencing difficulty getting a COVID-19 vaccine, or if you design vaccination plans and can share solutions or challenges related to fair distribution, please fill outour questionnaire. If you prefer to call or text, you can get in touch at 202-681-0779 in English or Spanish.
You Do Not Need a Social Security Number or Insurance to Get a Free COVID Vaccine. Your Immigration Status Does Not Matter, Either.
Camille lives in Baltimore with her 77-year-old mother. (She asked to be identified only by her first name for privacy reasons.) When a nonprofit organization helped her mother get a vaccination appointment an hour away in College Park, Maryland, Camille took time off from work to drive her there. They’d only brought along her mother’s state ID card. But when they went up to the counter at the CVS pharmacy, an employee asked for insurance information and a Social Security number. Camille’s mother, who is from Togo and is seeking asylum in the United States, doesn’t have either of those. Camille said the employee told her they’d have to pay if they wanted a vaccine.
No one is supposed to be charged for the COVID-19 vaccine, according to the CARES Act, and immigration status shouldn’t affect eligibility. Many vaccination sites ask for insurance and Social Security information so they can charge administrative fees to insurance companies or the federal government, but those aren’t requirements for being able to get vaccinated.
Camille told the CVS employee she wasn’t going to pay for a vaccine. Her mother, a French speaker who takes weekly English lessons, needed Camille to translate what was happening. “I felt so embarrassed, and my mom also when I was explaining to her,” she said. “She was like, ‘I’m not going to have it because of insurance?’”
Not wanting to drive an hour back without the vaccine, Camille called Tiffany Nelms, executive director of the Baltimore-based nonprofit Asylee Women Enterprise, which had set up the appointment for them. When Nelms asked the CVS employee why they were having trouble getting a vaccine without a Social Security number, the employee “quickly backpedaled,” Nelms said. The staffer told Nelms a supervisor would override the CVS computer system’s request for an insurance or Social Security number.
Nelms said she’s worried about others who have less access to support. “Not everyone has a bilingual relative to go with them who is even comfortable advocating in that way and also has an advocate that’s a phone call away,” Nelms said. “A lot of our clients, especially those who don’t have legal status yet, if they were asked a question like that, they would just leave.”
Camille said she’s thankful her mother got the one-dose Johnson & Johnson vaccine so they don’t have to go back to the CVS for a second shot.
“We are aware of these isolated incidents in Maryland and are committed to addressing inequities related to COVID-19 vaccine access in vulnerable communities, with a particular focus on Black and Hispanic populations,” a spokesperson for CVS said in a written statement regarding Camille’s experience and two other incidents that took place at Maryland CVS locations. “No patient, whether they are insured or uninsured, has been charged directly for a COVID-19 vaccine. If a patient does not have insurance, we are required by the Health Resources and Services Administration to ask the patient to provide either a Social Security number or valid driver’s license/state ID #. However, uninsured patients are not required to provide this information in order to receive a vaccine from us.”
Vaccination sites’ arbitrary documentation requirements have been a barrier for other Marylanders trying to get vaccinated as well. Several Montgomery County public school teachers formed Vaccine Hunters-Las Caza Vacunas to help find appointments for eligible Marylanders. In March, eight of their clients were initially denied vaccines when they showed up for appointments. Most were told they needed documentation that isn’t required by the state. All of them were immigrants, and most eventually got the vaccine after contacting someone from the group to advocate on their behalf.
In one incident Vaccine Hunters volunteers said they intervened in, a woman arrived for her appointment at a CVS in White Plains, Maryland, and presented her ID, a Salvadoran passport. She was told she would need an insurance card or Social Security number, which she does not have. In another, a woman who primarily speaks Spanish was initially turned away by a College Park CVS because she couldn’t respond when asked, in English, to identify her eligibility category.
The group’s volunteers have received complaints from local residents who were turned away for other reasons as well. At a Giant grocery store in Hyattsville, two Latina pastors were initially turned away because they did not have a letter from their employer, even though they brought W-2 forms proving their employment status.
“A COVID-19 vaccine provider may not refuse an individual a vaccine based on their citizenship or immigration status,” said Charles Gischlar, deputy director of communications for the Maryland Department of Health. However, Gischlar said, Maryland vaccine providers are required to take “reasonable steps” to determine whether someone is actually in a priority group: “A COVID-19 vaccine provider may require additional documentation or employee identification and may require that organizations submit institutional plans with identified individuals.”
A spokesperson for Giant Food said that its stores check patient information from their IDs or letters from their employers to identify who is being vaccinated and report demographics back to the Centers for Disease Control and Prevention. “Our goal is to assist in getting people immunized, not to police the vaccine by any means,” communications and community relations manager Daniel Wolk said. “As you can imagine, guidance from the state legislators and the Department of Health changes daily. We do our best to effectively communicate these changes to our over 400 pharmacists via email and weekly calls.”
Across the country in the Mission Hills neighborhood of Los Angeles, Rite Aid turned away a woman on March 14 after asking her to provide a Social Security number and a U.S.-issued ID, which she does not have. She had brought her consular ID, which Los Angeles County sites are supposed to accept for vaccination appointments.
“After being on a waitlist for a week, my mom was turned away because she has no social security and because she is UNDOCUMENTED,” her son Sebastian Araujo wrote on Instagram, adding on Twitter, “My mom was literally sobbing and I’m literally appalled.” After Araujo shared the incident on social media, Rite Aid responded to him on Twitter with an apology and reached out to reschedule a time to vaccinate his mother.
A Rite Aid spokesperson said the company advises its employees not to turn anyone away from a vaccine appointment, regardless of whether they have an ID, Social Security number or insurance. “This was an isolated incident, was a mistake and did not have anything to do with immigration status,” said Rite Aid public relations director Chris Savarese. “The store staff and regional teams have been retrained on our policy to not turn anyone away.”
A week after the Los Angeles incident, a Rite Aid in Orange County, California denied the vaccine to another woman who did not have a Social Security card or insurance, though she had brought her out-of-state ID and a letter from her employer.
At first, Araujo said, he was hesitant to post publicly about his mother’s experience because of the hateful comments he anticipated facing online. “But I think raising awareness is very, very important,” Araujo said in an interview with ProPublica. “If we would’ve just stayed quiet, honestly, nothing would have happened. Rite Aid probably would have continued rejecting people and LA County would’ve never brought this issue into a conversation.”
After Araujo and local media outlets publicized the incident, Los Angeles County officials spoke out and posted on social media to emphasize that proof of citizenship is not required to get a vaccine.
A COVID Vaccine Should Never Cost You Money — Ever. It’s the Law.
While the CDC has made it clear that vaccine providers should not charge patients anything, including administrative fees or copays, some patients have still received bills for the COVID-19 vaccine.
The day after Rosanne Dombek, 85, received her second shot at InterMed, a primary care practice in Maine, she opened her mail and found a bill. For “Covid-19 Pfizer Admin, 1st dose,” her charge was $71.01. “If your outstanding balance becomes 120 days past due, the balance will be transferred to the Thomas Agency for further collection action,” the bottom of the bill said. “It sounded rather final,” said Dombek, who is the mother of Lynn Dombek, ProPublica’s research editor. She immediately wrote out a check. “I was surprised to get the bill, but I’m old enough now that I don’t want any more battles.”
When asked about Dombek’s bill, InterMed spokesperson John Lamb first said that the $71 should have been billed to the patient’s insurance company, and that “the correspondence you referenced is likely a request for insurance information.” When shown a copy of Dombek’s bill, which did not include any such request, Lamb responded, “The statement should have included a notice to call us with her insurance information. We’re looking into why that was missing.” Yet InterMed’s website seemed to indicate that the bill was intentional. In its coronavirus FAQ section, the site said:
“The COVID vaccine will be provided to patients at no cost. However, there will be a vaccine administration fee charged to the patient.” When ProPublica questioned InterMed about this language, Lamb responded, “Good catch. It was confusing. We’ve corrected it to reflect the billing to the insurance provider.” The website was subsequently updated. Dombek did not end up mailing her check to InterMed. Some residents in New Mexico have also reported receiving bills after getting vaccinated. It’s unclear how the CDC or its parent agency, the Department of Health and Human Services, aims to prevent patients from being billed. A CDC spokesperson noted that individuals can call an HHS hotline to report any billing-related violations, but referred oversight questions to HHS. HHS didn’t respond to requests for comment.
Fear of potential bills has kept others from getting vaccinated to begin with. Nancy Largo of Bellport, New York, doesn’t have insurance, already carries about $7,000 in medical debt and has been out of work for almost two years because of a workplace injury. She knows the vaccine is supposed to be free, but she’s still worried. “What happens if they charge me?” Largo asked in Spanish.
Largo doesn’t speak English, and medical providers don’t always have Spanish-speaking staff, so she’s not confident that she'll be able to ask questions about billing and other details once she gets to a vaccination site.
Though nearby pharmacies are offering the vaccine, Largo is limiting herself to finding a shot through one clinic that she knows treats people without insurance and has Spanish-speaking staff. So far, they haven’t had an appointment for her.
In Nearly Every State, Providers Are Required to Believe What You Say About Underlying Conditions.
Sara Waldecker was worried about how she could prove that she was a high-risk patient eligible for a COVID-19 shot. Michigan had just opened up vaccinations to anyone ages 16 and up with disabilities or medical conditions that qualified. Waldecker, 37, said that a childhood illness left her with lung scarring and asthma, but she wasn’t sure how to get hold of those medical records because “the primary doctor I saw, up to five years ago, has died.” After that, Waldecker switched hospital systems, and her old records didn’t transfer with her. Then Waldecker’s husband lost his job during the pandemic, leaving them without health insurance. She said she couldn’t afford to see a doctor and have tests run to get diagnosed again. She’d spent the entirety of the pandemic isolated, buffeted by conflicted emotions. “If I catch it, there’s an overwhelming chance I’m not going to make it, but I also feel guilt from keeping my kid from her favorite places,” she said. “She’s healthy, the rest of my family is healthy — I’m the weak link. I’m the one keeping them in isolation.” In fact, Waldecker didn’t need to prove anything. In Michigan, “individuals attest to any medical conditions upon registration,” according to Lynn Sutfin, public information officer for the state’s
Department of Health and Human Services. “They do not need to provide proof.” That information is not evident on the state health department’s website, nor is it clear on the website of the health department for Macomb County, where Waldecker lives.
ProPublica surveyed all 50 states and found that, among those currently providing vaccines to individuals with underlying health conditions, almost all only require a patient to self-attest that they meet the criteria, and do not require any documentation or proof. Florida is one exception. It limits eligibility to “persons determined to be extremely vulnerable by a physician” and provides a form for doctors to fill out.
In Delaware, health providers and hospital systems are the only places where patients with health conditions can get a vaccine. “Delaware health providers, including hospitals, have been advised to use their clinical judgement to vaccinate individuals 16-64 with underlying health conditions, as they will have access to the patient’s medical information,” state public health department spokesperson Robin Bryson wrote in an email. Even in states that only require an attestation of someone’s underlying condition, that information was hard to find on state websites. Many did not mention it at all, and ProPublica was only able to learn about it by contacting press offices.
Whatever a state says, however, specific vaccination sites may sometimes ignore official guidelines. When Ric Galvan, 20, went to the Alamodome stadium in San Antonio, Texas, for his shot on March 2, he recalled, he was questioned by a firefighter who was helping with intake: “He first sort of condescendingly asked, ‘How old are you, buddy?’ — likely because I’m young.” Galvan provided his ID and stated that he had chronic asthma. “He then asked if I had an inhaler or some sort of proof of having asthma, to which I said, ‘No, not with me.’ He then told me that the vaccine is only for ‘real asthmatics’ who ‘need their inhaler with them at all times.’”“As someone who has been under pulmonologist care since I was 4 years old, this really upset me,” Galvan said. He tried to push back, telling the firefighter that none of the confirmation emails said anything about medical proof, but the firefighter told him to leave the site. A full-time student who also works part time, Galvan added that he was frustrated because it had been so hard to get an appointment in the first place, and now he had to start over again.
“We must ensure individuals that have registered do in fact meet the criteria set by the state of 1A and 1B. This process entails verification of name, age, and if under 65, qualified pre-existing conditions,” replied Michelle Vigil, a spokesperson for the city of San Antonio. “Unfortunately we have seen instances where these conditions cannot be verified. In order to ensure that we are in compliance we have had to turn a very small number of people away.”
But Texas sites aren’t supposed to ask for proof of underlying medical conditions, according to Douglas Loveday, spokesperson for Texas’ health department. People seeking vaccinations “can self-disclose their qualifying medical condition,” he said. “They do not need to provide documents to prove that they qualify.”
Juany Torres, a community organizer and advocate in San Antonio, said she’s heard of several similar cases at the Alamodome.“Some undocoumented folks that showed up were questioned about their diabetes or their asthma, and they were turned away and lost their appointment,” Torres said. They had been diagnosed in their home country and didn’t have their medical records on hand, she said. None have health insurance or a primary care doctor in the U.S. “They lost the time they had taken off work, they were embarrassed, and I had to re-convince them that they were worthy to go and that they should get their shot,” she said. In Texas, at least, requests for medical documentation should no longer be an issue: On March 29, the state transitioned to allow everyone age 16 and older to sign up for a vaccine.
According to internal government statistics and interviews with former officials, legal observers, advocates and congressional staff, those decisions came weeks or months after the first warning signs late last year that the number of unaccompanied minors crossing the southern U.S. border was rapidly increasing, forcing a scramble to set up facilities in a matter of days.
This article was published on Thursday, April 1, 2021 in ProPublica.
The startling images have appeared in one news report after another: children packed into overcrowded, unsafe Border Patrol facilities because there was nowhere else to put them. As of March 30, over 5,000 children were being held in Border Patrol custody, including more than 600 in each of two units in Donna, Texas, that were supposed to hold no more than 32 apiece under COVID-19 protocols.
But as the Biden administration’s Department of Health and Human Services scrambles to open “emergency” temporary facilities at military bases, work camps and convention centers to house up to 15,000 additional children, it’s cutting corners on health and safety standards, which raises new concerns about its ability to protect children, according to congressional sources and legal observers. And even its permanent shelter network includes some facilities whose grants were renewed this year despite a record of complaints about the physical or sexual abuse of children.
“There may be no good choices,” Mark Greenberg, a former head of the Administration for Children and Families (which oversees the unaccompanied-children program) at the HHS, told ProPublica. “Everything has to be weighed against the alternative. And the alternative is the backups at Customs and Border Protection. And recognizing how bad that is, it means that people have to make unpalatable decisions.”
According to internal government statistics and interviews with former officials, legal observers, advocates and congressional staff, those decisions came weeks or months after the first warning signs late last year that the number of unaccompanied minors crossing the southern U.S. border was rapidly increasing, forcing a scramble to set up facilities in a matter of days. No safety standards are in place at the new facilities — unlike controversial “influx” facilities used in the past.
One new site in Midland, Texas, was briefly closed to new arrivals after the state warned that its water wasn’t drinkable. That site and others have been staffed with volunteers who may not have passed background checks and speak no Spanish. One potential site — a NASA research center in Moffett, California — was scuttled after local protesters pointed out it was near a known Superfund site with high levels of toxic chemicals.
While previous influx sites have been criticized by Democrats in Congress and immigration advocates for sometimes falling short of state standards for licensed facilities, HHS has generally agreed to hold operators to those standards, said attorney Leecia Welch of the National Center for Youth Law. But it hasn’t committed to that now. Nor has HHS offered any other standards it plans to hold the facilities to. In a statement provided to ProPublica, Homeland Security Secretary Alejandro Mayorkas said, “We are seeing progress, but it takes time. In the meantime, the CBP workforce has done heroic work under difficult circumstances to protect these children.” HHS did not respond to a request for comment.
It’s “the Wild West,” Welch said, reflecting a view shared by other advocates and congressional staff monitoring the children’s care.
Meanwhile, the federal government has tried to revive its COVID-19-battered network of permanent residential facilities. In January, it quietly renewed three-year grants to several state-licensed providers that previously faced complaints of physical or sexual abuse of children. The facilities have defended their care without denying the allegations.
One grant went to a Texas facility that children were removed from in 2018 amid allegations that staffers were drugging them, and that had previously fired a staff member for placing a child in a chokehold in 2019. Two organizations that have faced repeated allegations of sexual abuse also had their grants renewed: a foster-care provider in New York accused of placing children with abusers, and a shelter in Pennsylvania where children accused the staff of abuse. The New York organization told ProPublica, “The safety of the youth in our care is of the utmost importance to us and has always been,” and it stressed that both staff and potential fosterers go through “extensive background checks.” Neither of the other facilities responded to requests for comment.
By federal law, children are to be held no longer than 72 hours in Border Patrol custody before they are transferred to HHS housing, except in emergency situations. As of March 30, however, over 2,000 children being held at the main Border Patrol facility in Donna had been there for more than 72 hours, according to reporters.
In recent years, Border Patrol facilities for children have lacked toothbrushes or medical supplies, and the fact that Border Patrol agents aren’t trained to deal with children raises risks that a child will become ill or even die in U.S. custody. This has convinced many officials working in the system that deals with unaccompanied migrant children (including some within Customs and Border Protection) that releasing kids into any HHS care is better than leaving them in Border Patrol custody.
HHS normally places children in a network of shelters while their relatives in the U.S. are identified and vetted (a process that, during the pandemic, has typically taken at least a month). When needed, HHS has also opened influx centers that can be set up in weeks and do not require state licensing. Now, with the assistance of the Federal Emergency Management Agency, HHS is opening new “emergency intake sites” in a matter of days, including two in convention centers in Dallas and San Diego.
HHS also relies on a network of state-licensed shelters, which are required to self-report violations found by state regulators to the federal government. A 2020 Government Accountability Office report found that HHS offered unclear instructions on how such violations should be reported. One grantee, which was cited by state auditors 70 times in two years for violations at three facilities, mentioned none of those violations in its reports to HHS.
A review by the Texas Impact Foundation, an advocacy organization, found that shelters in the state were cited for 68 violations involving physical abuse or unnecessary restraint of a child. In two cases, children were placed in chokeholds by staff members attempting to restrain them. (In both cases, the staffers responsible were fired.)
In an incident at a shelter near Houston in 2019, a child reported being held in a chokehold for over two minutes. The facility operator (initially operating under the name Daystar Residential Centers) closed in 2011 after a string of abuse allegations, only to reform under the name Shiloh Treatment Centers a few years later. In 2018, the facility was accused in a legal filing of sedating children with antipsychotic drugs. In response, a federal judge ordered the removal of all children who weren’t considered at risk of harming themselves or others. (The shelter did not respond to a ProPublica request for comment.)
Shiloh was among the 23 facilities awarded new three-year contracts on Jan. 1, receiving two grants totalling $2.6 million. The facility has held only a few children during the pandemic, and Welch said it’s possible that conditions have improved. At her last monitoring visit, she said, she heard none of the horror stories that children had told her in the past. But as the GAO report noted, HHS doesn’t explicitly look at past performance when evaluating grant renewals.
The HHS housing crunch has been badly exacerbated by the coronavirus pandemic. Children’s shelters, like other kinds of congregate housing, are under severe capacity restrictions that reduce available bed space.
The HHS shelter population was growing last fall, even before a federal judge ruled in November that the Trump administration had to take unaccompanied migrant children in, rather than expelling most of them from the U.S. immediately under a March public-health order issued by the Centers for Disease Control and Prevention. From Oct. 31 to Nov. 30, the number of children in HHS custody rose from about 2,000 to about 3,000. In mid-December, with about 3,500 kids in custody, HHS officials said in a briefing that shelters near the U.S.-Mexico border were already at 67% of their capacity limits under COVID-19. But HHS took no action to add capacity until Jan. 15, when it sent a message to other government agencies asking them to scout locations for potential influx sites.
Former DHS officials said that HHS has long resisted taking emergency measures, straining the agency’s relationship with Border Patrol. During a similar crunch in 2019, one former DHS official told ProPublica that HHS “refused to acknowledge the operational challenges” that were leading children to be marooned in Border Patrol custody for days, out of a belief that “immigration was kind of a third rail.”
“It’s no coincidence that in each of the surges since 2014, FEMA — the emergency-management arm of DHS — has had to step in,” another former DHS official said. “When the [HHS] system is overwhelmed by the number of intakes, they don’t have the FEMA-like capacity to think improvisationally, to rush resources, or to modify processes, and they become the bottleneck.”
On March 5, the CDC waived the COVID-19 capacity caps for migrant child shelters so HHS could take more children out of Border Patrol facilities. The Biden administration is now working with states to allow shelters to house more children while complying with state licensing requirements. But shelters are struggling to hire staff, as many qualified professionals still fear working in congregate housing because new coronavirus variants are spreading. HHS recently informed Congress that it has upped its incentive pay to help recruiting, but it’s unclear if that will be enough.
A senior administration official acknowledged in March that the number of beds being made available would at best be a few hundred a week — far too few compared to the number of children arriving.
When the Biden administration announced it was reopening the influx care facility in Carrizo Springs, Texas, in February, immigration advocates and some Democrats condemned it as another way to keep “kids in cages.” Meanwhile, the other influx facility opened by the Trump administration in 2019, at Homestead Air Reserve Base in Miami, was held in reserve. At present, it appears it won’t be reopened; Axios reportedthat Biden himself stepped in to veto the possibility.
But HHS policy requires influx facilities to “comply, to the greatest extent possible, with State child welfare laws and regulations (such as mandatory reporting of abuse), as well as State and local building, fire, health and safety code.” There are no such commitments in place for emergency facilities, according to Welch and congressional staff. It’s still not clear who will operate the facilities after the initial setup is completed, or whether HHS will require them to provide support services to children, such as mental health counseling or legal assistance.
People who work in the system often point out that the ultimate goal is to get children reunited with their U.S.-based relatives as quickly and safely as possible. The lack of support services might matter less if children did not end up staying at the new emergency sites for months, they argue.
“We would always want children in a good, safe, developmentally appropriate setting,” Greenberg told ProPublica. “But the issue is just really different for a child who is going to be somewhere for 30 days” compared to longer-term stays.
Ultimately, how long emergency sites remain open depends on how long children keep coming to the U.S. in numbers beyond what HHS can accommodate. Internal government estimates obtained by The Wall Street Journal predict that as many as 25,000 children could cross into the U.S. in May.
Without a federal system of NICU-specific oversight, regulation of the units falls to each state — and New Mexico isn't doing much. But over 30 other states show it can be done.
This article was published on Wednesday, March 31, 2021 in ProPublica.
New Mexico parents worrying over the health of an extremely preterm baby have another reason to be concerned: Their state government provides almost no oversight of the care provided by neonatal intensive care units.
Thirty-one states, including neighboring Arizona, Oklahoma, Texas and Utah, have laws or rules requiring oversight of neonatal intensive care hospitals, according to a 2020 Centers for Disease Control and Prevention study. Some of these states make sure that hospitals provide care at the levels they claim to, and some periodically review data on patient admissions, transfers and outcomes to identify potential problems.
Some states, like California, do both. New Mexico does neither.
The federal government does not set standards for NICUs.
A New Mexico In Depth and ProPublica analysis published Tuesday found that an Albuquerque hospital, Lovelace Women’s, had a death rate for extremely preterm babies roughly twice that of Presbyterian, a nearby maternity hospital that has a comparable NICU. Clinicians voiced concern about aspects of neonatal care at Lovelace. The hospital defended the care it delivered and objected to the news organizations’ focus on extremely preterm babies, noting that these newborns represent only 2% of the hospital NICU’s admissions. The hospital also questioned comparing its performance to that of another hospital rather than to national benchmarks. But experts said the disparity warranted further investigation.
It is unclear, however, who would conduct such an inquiry because New Mexico requires little oversight of neonatal intensive care facilities and does not monitor their patients’ outcomes. New Mexico’s hospital regulators have not set foot in Lovelace’s NICU, or the other two Albuquerque NICUs, Health Department spokesperson James Walton acknowledged.
Other states take a variety of steps to ensure the quality of neonatal care. Experts point to Texas and California as gold standards for NICU oversight.
Twenty-two states, including California, Nevada, Utah and Illinois, have legislation or policies describing plans that advise lower-level hospitals on where preterm babies should be sent to receive the best care, according to a 2017 CDC study. But New Mexico has no perinatal-care regionalization plan, Walton said. Medicaid records indicate that some extremely preterm babies wind up at New Mexico hospitals that are not equipped to care for them. Statewide, between 2015 and 2019, more than 300 extremely preterm babies were admitted to hospitals that didn’t have a NICU, according to state Medicaid program records. (More than 70% of births in the state are covered by Medicaid.)
Regional plans allow hospitals to specialize and make better use of their expertise in caring for preterm babies, said Dr. José Antonio Perez, a clinical professor of pediatrics at the University of Washington in Seattle and the NICU medical director at Swedish Issaquah Medical Center.
Lovelace and Presbyterian are both level 3 neonatal intensive care hospitals, which the American Academy of Pediatrics defines as facilities equipped and staffed to care for high-risk infants. In California and Illinois, top-tier, level 4 NICUs, which care for the sickest premature babies, monitor level 3 hospitals. In New Mexico, such an agreement would give University of New Mexico Hospital oversight of Lovelace and Presbyterian.
Some states assemble groups of hospital officials, experts and community members to study and make recommendations about hospital practices and policies. But New Mexico’s version of these perinatal-care collaboratives focuses on maternal rather than neonatal care, noted Dr. Scott A. Lorch, a professor of pediatrics and associate chair of the Division of Neonatology at the Children’s Hospital of Philadelphia, and a NICU oversight and outcomes expert.
In Arizona, Oklahoma, Utah and Texas, officials conduct on-site inspections to confirm each NICU’s level of care.
In Texas, inspections are done before the state officially designates a facility as a level 1, 2, 3 or 4 neonatal hospital. The American Academy of Pediatrics conducts the Texas inspections using teams that include clinicians who care for newborns at similar facilities, including a neonatologist, a NICU nurse and, if surgeries are performed on-site, a pediatric surgeon. The inspections include checking staff credentials and reviewing patient records.
“You can really tell by reading patient charts and seeing what they do, whether they adhere to their own policies, if they’re consistent,” said Harvard Medical School professor Dr. Ann Stark, who pioneered the American Academy of Pediatrics’ guidelines for levels of neonatal care and who leads its NICU Verification Program.
Evaluations are repeated every three years.
“We learn from every survey,” Stark said. “The more you do something, the better you get.”
But in New Mexico, the state government has no legal authority to verify whether hospitals meet specific standards. Any level-of-care requirements, if they exist at all, would be set in contracts between the hospital and Medicaid managed-care organizations hired by the state, according to Jodi McGinnis Porter of the state Human Services Department. Those agreements are secret. Not even the state can access them. “They’re proprietary,” McGinnis Porter said.
For the public, the shortcomings of New Mexico’s system — and the disparity in hospitals’ death rates for extremely preterm infants — are nearly invisible. The state does not analyze or publicly disclose specific hospitals’ outcomes, which could inform parents’ decisions about where to seek care.
Parents facing the birth of an extremely premature baby “literally have no way to tell or to compare” if their baby might do better at another hospital, said a Lovelace clinician who asked not to be named for fear of retribution. Making hospitals’ newborn outcomes public could force them to identify the causes of problems and address them, the clinician said. “Hospital transparency could save babies’ lives and save New Mexico families in the future from devastating heartbreak.”
Lovelace did not respond to questions about lax state oversight and later declined to respond to any comments made by clinicians who had been granted anonymity by New Mexico In Depth and ProPublica.
New Mexico parents are not the only ones in the dark about how well their local neonatal intensive care hospitals perform. Across the country, expectant parents have no way to assess which maternity hospitals have the best newborn outcomes, neonatal hospital experts and clinicians noted.
“A mom comes into labor at 25 weeks, and at one center you have 21% mortality, and at the other one you have 36% mortality. That information is not provided to the family,” said Perez.
For adult patients, a hospital’s survival or success rates for stroke, heart surgery or cesarean sections are available online. But similar information isn’t available for newborns. No government website compares babies’ outcomes like Medicare’s hospital comparison site does for adults. The Vermont Oxford Network, a hospital research collaborative that tracks infant care, does not publicly disclose hospitals’ NICU statistics. U.S. News & World Report has ranked 50 neonatal hospitals, but not Lovelace or Presbyterian.
There’s a “wall of silence that families and the public face with regard to the quality of care in NICUs,” said Dr. David C. Goodman, a professor at the Dartmouth Institute for Health Policy & Clinical Practice at Dartmouth College. Goodman has studied dozens of U.S. hospitals’ track records in caring for extremely preterm babies.
This dearth of information on neonatal hospital care also slows academic research that could improve outcomes, said Lorch and Goodman. (Lorch’s research team was unable to obtain data on outcomes at New Mexico NICU hospitals, data that researchers can readily obtain in other states, thanks to legal restrictions on the disclosure of the patient-level information.)
Experts said expectant parents should not have to wonder about the quality of newborn care when they choose a maternity hospital.
“It points to the need for greater transparency in health care outcomes, particularly for our most vulnerable populations,” Goodman said. “We can only improve care if it’s measured routinely and shared.”
House Democrats investigating the COVID-19 response say Trump adviser Peter Navarro pressured agencies to award deals worth hundreds of millions of dollars.
This article was published on Wednesday, March 31, 2021 in ProPublica.
A top adviser to former President Donald Trump pressured agency officials to reward politically connected or otherwise untested companies with hundreds of millions of dollars in contracts as part of a chaotic response to the COVID-19 pandemic, according to the early findings of an inquiry led by House Democrats.
Peter Navarro, who served as Trump’s deputy assistant and trade adviser, essentially verbally awarded a $96 million deal for respirators to a company with White House connections. Later, officials at the Federal Emergency Management Agency were pressured to sign the contract after the fact, according to correspondence obtained by congressional investigators.
Documents obtained by the House Select Subcommittee on the Coronavirus Crisis after a year of resistance from the Trump administration offer new details about Navarro’s role in a largely secretive buying spree of personal protective equipment and medical supplies.
But they also show he was among the first Trump officials to sense the urgency of the building crisis, urging the president to push agencies and other officials to “combat the virus swiftly in ‘Trump Time’” and cut through the red tape of the federal purchasing system.
In another communication, Navarro was so adamant that a potential $354 million contract be awarded to an untested pharmaceutical company that he told the top official at the Biomedical Advanced Research and Development Authority, or BARDA, “my head is going to explode if this contract does not get immediately approved.”
Navarro did not immediately respond to a request for comment.
The committee’s work backs up investigations by ProPublica and other news outlets into the more than $36 billion the federal government has awarded, much of it without traditional bidding and with little scrutiny, to address the COVID-19 pandemic.
At least five of the committee’s lines of inquiry are exploring issues reported by ProPublica, including the $96 million no-bid deal for respirators that was ordered by Navarro, a $34.5 million deal signed by the U.S. Department of Veterans Affairs that fell apart and ended with a contractor pleading guilty to fraud, a contract for masks awarded to a former Trump administration official, and the revelation that FEMA had paid millions to a contractor with a history of fraud allegations for unusable and unsanitary fake test tubes.
In a letter describing the subcommittee’s findings, Democrat James Clyburn of South Carolina and members of the committee told President Joe Biden’s emergency response team that Trump’s lack of action worsened the health crisis.
“The President rejected calls from governors to ensure that the country had sufficient (personal protective equipment) and other supplies to address the crisis, leading to severe shortages and forcing states and cities to compete on the open market,” they wrote.
The committee asked officials overseeing FEMA and the U.S. Department of Health and Human Services, along with the director of the National Archives, to provide records detailing Navarro’s actions and the circumstances behind several questionable contracts awarded in response to the pandemic, which has left more than 550,000 Americans dead and many more suffering.
“In the absence of a coordinated national plan, various White House officials pursued ineffective, ad hoc approaches to procuring certain supplies. Recently obtained documents show that White House officials pushed federal agencies to issue non-competitive contracts for certain pharmaceutical ingredients and other items — some of which would not be ready for many months or even years — even as acute shortages for surgical masks, nitrile gloves, gowns, and other items continued,” members of the subcommittee wrote.
The respirator deal, with Airboss Defense Group, a subsidiary of Canadian company Airboss of America, was reported by ProPublica in April 2020 after a highly unusual entry in federal procurement data indicated the contract had been directly ordered by the White House. The Trump administration provided few answers about the award, but records the company provided to Congress indicate the firm used an influential consultant to connect Navarro with Airboss CEO Patrick Callahan.
Retired four-star Army Gen. John Keane, whom Trump had recently awarded the Medal of Freedom, reached out to Navarro on behalf of Airboss and the company got a phone meeting with the White House Coronavirus Task Force, emails show. The emails indicate that the company delivered an initial batch of respirators to FEMA before any contract was awarded, and the company upped its production on the promise that the White House, and Navarro, would make a contract official. Emails indicate the company expected to be paid upfront, at contract signing. The federal government typically doesn’t pay until a contract is agreed to and a product is delivered.
Airboss’ parent company nearly tripled its sales in large part because of the deals Navarro helped broker, the subcommittee wrote, and saw a $12 million increase in profit from April to June 2020. The company said it hadn’t seen the subcommittee’s letters but defended its work with FEMA.
An Airboss spokesperson said in a statement that the company is “proud of its successful efforts to rapidly respond to the urgent requests of the then White House Coronavirus Task Force to help supply the U.S. Government with urgently-needed PPE equipment to save lives, and protect our front-line healthcare professionals in the battle against the COVID-19 pandemic. Within days of the request, ADG mobilized its extensive U.S. PPE manufacturing capabilities, and vast supply chain network to produce and begin delivering this critical equipment.”
In a separate contract negotiation, this time for generic pharmaceuticals, Navarro pressured FEMA and officials leading the effort to beef up a depleted national stockpile to award a potential $354 million deal to Phlow to make drug ingredients. In an email pressing BARDA officials Navarro wrote:
“This is a travesty. I need PHLOW noticed by Monday morning. This is being screwed up. Let’s move this now. We need to flip the switch and they can’t move until you do. FULL funding as we discussed.”
Democrats on the subcommittee noted that Phlow had never before received a federal contract and had incorporated just a couple months earlier, in January 2020. ProPublica left a message with a company spokeswoman, who has not yet responded.
In another public letter this month, the subcommittee expressed concern that Robert Stewart, the CEO of Federal Government Experts LLC, which was awarded a no-bid $34.5 million contract with the VA and a smaller deal with FEMA, wasn’t cooperating with its investigation.
This contradicts statements his lawyer made before a federal district judge just weeks before, that Stewart was helping congressional investigators, as he pleaded guilty to multiple counts of fraud. Stewart did not immediately respond to calls and text messages.
The two largest maternity centers in this state have drastically different death rates for extremely preterm babies. Here's how we analyzed the data for our investigation.
This article was published on Tuesday, March 30, 2021 in ProPublica.
A New Mexico In Depth and ProPublica investigation found that the tiniest, most premature babies born at Lovelace Women’s Hospital in Albuquerque died at higher rates than they did at a hospital a few miles away, Presbyterian.
The for-profit Lovelace and nonprofit Presbyterian are New Mexico’s largest maternity centers.
Data Sources
The most comprehensive data on newborn hospital outcomes is collected by the Vermont Oxford Network, or VON, an international neonatal intensive care unit research collaborative. VON maintains patient-level intake and care data for member NICUs, including those at Lovelace, Presbyterian and the University of New Mexico Hospital. The data can be used to calculate death rates at individual hospitals. Maternal and newborn demographics, prenatal care, medical procedures and complications, neonatal hospital transfer history and babies’ outcomes are also captured in the data.
VON data, however, is not public; the network discloses outcomes only to member hospitals. The group declined the news organizations’ request for mortality rates of extremely preterm babies at Lovelace and Presbyterian. UNM, which runs the state’s highest-level NICU, shared its de-identified VON database and annual reports in response to a public records request, but neither Lovelace nor Presbyterian would do the same. The hospitals and VON also refused to share the network’s national average death rate for extremely preterm babies.
Since we did not have access to VON data for Lovelace and Presbyterian, the news organizations obtained aggregate birth and death certificate data for extremely premature babies from the state Health Department’s Bureau of Vital Records and Health Statistics. Hospitals submit data on each live birth and in-hospital newborn death for babies born to legal residents of New Mexico. We initially analyzed data for the most recent available five years (2015-2019), broken down by gestational age and birth weight. We used this data to calculate hospital death rates. To do a more detailed secondary analysis, the news organizations obtained data for babies born during the most recent available 10 years, 2010-2019, based on gestational age. Because the longer time period included more births, it allowed comparisons of additional patient subgroups and variables.
Hospitals also report diagnostic and billing code data to the state Health Department’s Hospital Inpatient Discharge Database, or HIDD, which collects diagnosis and treatment information about patients admitted to every hospital in the state, except those operated by the federal government. We obtained aggregate HIDD data from the Health Department.
In devising our analysis, we worked with national experts in neonatal intensive care, including Dr. Scott A. Lorch, a professor of pediatrics and associate chair of the Division of Neonatology at the Children’s Hospital of Philadelphia and a leading authority on NICU outcomes, and Dr. David C. Goodman, a professor at the Dartmouth Institute for Health Policy & Clinical Practice at Dartmouth College. Goodman helped analyze the data, and the analysis was reviewed by Lorch.
What We Found
Babies born weighing less than 1,000 grams (or about 2 pounds) are called extremely low birth-weight, while those born before 28 weeks of pregnancy are labeled extremely preterm. (A full-term pregnancy is 39-40 weeks.) While most babies born before 28 weeks are also extremely low birth-weight babies, that is not always the case. To account for that, the news organizations initially evaluated death rates using both birth weight and gestational age for the most recent five years for which Health Department data was available: 2015-2019.
Using the Health Department birth and death certificate data, we calculated a neonatal death rate at each hospital, which measured the percentage of live-born babies who died at their birth hospital within 28 days of delivery. We found that:
Between 2015 and 2019,34% of Lovelace’s 88 extremely low birth-weight infants died at the hospital, compared to 17% of Presbyterian’s 197.
In those same years, 36% of Lovelace’s 84 extremely preterm babies died there, compared to 21% of Presbyterian's 170.
The extremely preterm neonatal death ratesat each hospital didn’t change much when calculated for the entire 10 years between 2010 and 2019: 36% for Lovelace vs. 22% for Presbyterianwhen calculated by gestational age, and 33% vs. 20% using birth weights.
The news organizations’ analysis found no disparity between the hospitals’ death rates for babies born at older gestational ages and higher birth weights.
Hospital-wide death rates were calculated, accounting for deaths regardless of whether babies were admitted to the hospitals’ NICUs. Goodman, who was the lead author of the September 2019 report Dartmouth Atlas of Neonatal Intensive Care, advised New Mexico In Depth and ProPublica that the most accurate comparisons include the deaths of all extremely preterm babies, whether or not they were admitted to a NICU.
Only babies born at each hospital were counted toward the number of births. Only those who died at their birth hospital within 28 days were counted toward the number of deaths. (Including babies who died after being transferred to UNM’s NICU raised Lovelace’s extremely preterm neonatal death rate to 39%. Because Presbyterian transferred only one extremely preterm baby to UNM, in 2013, and they survived, that hospital’s death rate was unaffected.)
The analyses omitted babies considered “pre-viable” (those delivered before 21 weeks of pregnancy or weighing less than 350 grams), because they would likely die regardless of medical intervention, according to the state Health Department.
As discussed, some babies born at Lovelace and Presbyterian were transferred to UNM for care. Additionally, neonatal transport team logs suggest each hospital sent a handful of babies to out-of-state hospitals. The transport team logs were not detailed enough to allow us to remove all extremely preterm babies who were transferred out of state from our death-rate calculations. Therefore, our death rate treated all babies transferred out of Lovelace and Presbyterian as if they had received care at their birth hospital and lived, almost certainly making our death rates underestimates.
In addition to in-hospital deaths, we also examined how frequently Lovelace and Presbyterian transferred newborns to UNM Hospital, the state’s only top-tier, level-4 NICU hospital.
Having the UNM NICU’s VON data allowed us to analyze the frequency of transfers to UNM, and the condition of and outcomes for those transferred babies. We found:
Lovelace transferred more than three times as many newborns as Presbyterian to UNM between 2015 and 2019. Lovelace sent 66 babies, both full term and preterm, while Presbyterian transferred 17 babies, none of them preterm.
Close to half (46%) of Lovelace-born extremely preterm babies either died at the hospital or were transferred to UNM between 2015 and 2019.
Of 18 babies with necrotizing enterocolitis, or NEC — an inflammatory intestinal disorder and leading cause of extremely preterm newborn hospital deaths — who were transferred to UNM since 2012, 15 came from Lovelace. Twelve required intestinal surgery, and two died within hours of their arrival. Only one Lovelace baby was transferred with NEC and survived without surgery.
We also found a discrepancy in the number of Lovelace babies diagnosed with NEC when we compared the HIDD data and UNM’s VON intake logs. The hospital reported four cases of neonatal NEC to the state between 2015 and 2019, but the UNM VON data documented the arrival of 11 Lovelace babies with NEC during those years. Lovelace declined to explain the discrepancy.
In addition to comparing Lovelace to Presbyterian, the news organizations sought a national comparison rate for extremely preterm babies’ death rates at level-3 neonatal hospitals, but found a dearth of publicly available data. Most published studies are based on data that is more than a decade old.
In response to questions from the news organizations, however, the Centers for Disease Control and Prevention provided a national death rate for extremely preterm infants. The CDC’s rate included all hospitals, regardless of the facility’s level of care, using the same gestational age and birth weight parameters used in New Mexico In Depth and ProPublica’s analysis. The CDC found a national, hospital-wide extremely preterm neonatal death rate for 2010-2018 of 28%, near the midpoint between Lovelace’s 36% and Presbyterian’s 22% for 2010-2019.
The CDC’s national death rate might be higher than a rate for only level 3 hospitals would be, because it includes hospitals with level 1 and 2 neonatal designations, which are less equipped to care for these babies.
Experts advised against comparing level 3 facilities like Lovelace and Presbyterian to level 4 neonatal hospitals like UNM, because level 4 hospitals treat the sickest newborns and have more medical subspecialists and surgical experts on staff, making it difficult to interpret differences. However, for completeness, we calculated death rates for UNM, using the Health Department data and the same methods described above for Lovelace and Presbyterian. The 2015-2019 death rates for extremely low birth-weight babies and extremely preterm babies born at UNM were 29% and 33%, according to the news organizations’ analysis.
Scrutinizing Risk Factors
The cause of the disparity in Lovelace’s and Presbyterian’s extremely preterm neonatal death rates is not clear. Possibilities include one hospital having a sicker patient population, differences in patient care, or both.
The Health Department provided additional breakdowns of outcomes by patient demographics and treatment details, none of which alone explained the difference in death rates. The summary-level data did not allow us to examine several variables in combination.
Babies born at 21 to 23 weeks’ gestation are considered “peri-viable” and resuscitation practices for these babies vary between hospitals, experts and Albuquerque clinicians said, which may lead to differing outcomes.
After excluding babies born at 21-23 weeks’ gestation who died without being resuscitated at delivery from the analysis, Lovelace’s extremely preterm neonatal death rate was 29%, compared to 19% at Presbyterian. Excluding all babies who died within an hour of delivery, regardless of gestational age or resuscitation reports, Lovelace’s death rate was 26%, compared to 18% at Presbyterian and a CDC-provided national rate of 22%.
(Goodman warned that resuscitation numbers are unreliable because hospitals frequently fail to report them.)
By 24 weeks’ gestation, resuscitation at delivery is always attempted, experts and clinicians said. When only babies born at 24-27 weeks’ gestation were included in the analysis, the death rate at Lovelace was 23% vs. 9% at Presbyterian for 2010-2019. The CDC-provided national rate for this group was 15%.
Another explanation for the death-rate disparity could have been if Lovelace had a disproportionate number of 21- or 22-week-gestational-age babies, who have poorer outcomes than babies born at 24-27 weeks. But we found that the distributions of births by week of gestation at the two hospitals were very similar.
The state Health Department provided demographic and medical treatment details for extremely preterm babies born at 24-27 weeks’ gestation. Lovelace’s higher death rate persisted in analyses of that data. For example, extremely preterm twins and triplets often fare worse than single-born babies. But this did not explain the hospitals’ death-rate disparity. Nor did maternal race or ethnicity, differences in the proportion of extremely preterm babies who were boys (boys tend to have worse outcomes than girls), or differences in prenatal therapies. Medically induced labor and other risk factors for extremely preterm babies, such as the proportion of teen mothers, mothers who underwent infertility treatment or mothers who had cesarean-section deliveries also did not account for the disparity.
Discrepancies in numbers for NICU admissions and birth defects precluded analysis of that data. All extremely preterm babies who survive delivery should be admitted to the hospitals’ NICUs, clinicians and experts agreed, but there were babies at both hospitals for whom there were neither NICU admissions records nor death certificates. Neither Lovelace nor Presbyterian reported birth defects with extremely preterm babies’ birth certificate data, but a handful of death certificate reports note birth defects as a cause of death. There was only one record of a Lovelace extremely preterm baby being transferred to UNM in the first 24 hours after delivery, so transfers should not explain the missing NICU admissions data. When asked for comment, the hospitals did not acknowledge or explain the discrepancies.
Identifying the causes of the hospitals’ extremely preterm neonatal death rate disparities would require access to patient records or to completely reported, patient-level records, experts said.
Lovelace Responds
Lovelace presented several objections to our analyses. The hospital objected to comparing its extremely preterm newborns’ death rates to those of Presbyterian or any other individual hospital, arguing that comparisons should only be made to national benchmarks.
Goodman defended comparisons of outcomes between nearby level 3 neonatal hospitals: “A comparison within the same community, serving similar populations, operating under similar state policies and regulations, is of the highest value.”
And the news organizations obtained a national rate from the CDC, as described above, which was lower than Lovelace’s death rate.
In addition, the hospital contested the decision to look at hospital-wide outcomes for babies, regardless of whether or not they were admitted to the hospitals’ NICUs. Lovelace asserted that only NICU deaths should be measured because hospital-wide rates include deaths in the delivery room and could include nonviable babies. Presbyterian officials did not object to a hospital-wide comparison.
Lovelace said its NICU-only 2015-2019 death rate for extremely low birth-weight newborns was 22%. They would not say how the 22% NICU-only death rate compared to national rates in the VON. Presbyterian refused to disclose its NICU-only death rate.
Goodman rejected Lovelace’s objection to hospital-wide comparisons, noting that NICU staff should be present at the delivery of extremely preterm babies and that his research team includes “every extremely preterm baby who dies ... in our research. They are cared for by the NICU team and are the responsibility of the NICU team whether or not they are administratively admitted to a hospital’s NICU.”
Another objection from Lovelace was the decision to calculate death rates for extremely low birth-weight newborns in the first place, noting that babies born weighing less than 1,000 grams represent only 2% of the hospital’s NICU-admitted babies. “This sample size is too small from which to derive any conclusions about the overall quality of care being provided,” Lovelace Vice President for Marketing Serena Pettes wrote in an email.
But extremely preterm babies are a formally recognized and widely studied patient population at neonatal hospitals. The American College of Obstetricians and Gynecologists defines as extremely preterm babies born before 28 weeks of gestation, the definition we employed. While extremely preterm babies do make up a small portion of all NICU admission, between 2010 and 2019, more than 500 such babies were born at Lovelace and Presbyterian.
Lax state oversight leaves unanswered questions about the deaths of extremely preterm babies at Albuquerque's Lovelace Women's Hospital, which markets itself as a state-of-the-art newborn facility. Experts say transparency could save lives.
This article was published on Tuesday, March 30, 2021 in ProPublica.
Note: This story contains a description of the death of an infant.
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It was morning shift change at Lovelace Women's Hospital in Albuquerque, New Mexico. In the neonatal intensive care unit, the lights were dimmed, as usual. People spoke in hushed tones typical of the NICU. But an arriving clinician knew immediately that something had gone wrong.
A "crash cart" carrying resuscitation equipment was positioned next to a newborn incubator, the enclosed cribs that keep preterm babies warm. Nurses stood nearby with grim expressions.
The incubator light illuminated an infant's swollen, discolored belly.
"I'll never forget what this baby looked like," recalled the Lovelace clinician, who asked not to be identified for fear of retribution. "His abdomen was black and taut and almost the size of a grapefruit."
The day before, the infant had been a little cold and had spit up, which wasn't particularly unusual. "It was something to watch, but nothing was horribly wrong," the clinician said.
Overnight, the baby's condition had worsened. Now, he was on a ventilator, his tiny heart's contractions slowing. His swollen abdomen prevented staff from administering chest compressions.
"There was nothing we could do," the clinician said. "He died."
The infant's gut had stopped functioning, clogging his feeding tube with undigested food. That is sometimes a sign of an inflammatory condition of the intestines, called necrotizing enterocolitis or NEC, that's a leading cause of hospital deaths among extremely preterm babies.
These babies' problems can spiral into life-threatening conditions in a matter of hours. There's no indication that Lovelace improperly handled the infant's treatment. But extremely preterm babies died at the hospital with striking frequency, according to an analysis of state health data by New Mexico In Depth and ProPublica.
A yearlong investigation by the news organizations found that at Lovelace, the tiniest, most premature babies died at up to twice the rate as they did a few miles away, at Presbyterian Hospital, another major maternity and newborn facility.
New Mexico In Depth and ProPublica also found that Lovelace transferred more than three times as many newborns as Presbyterian to the University of New Mexico Hospital, the state's only top-tier, level-4 regional referral NICU, where the sickest of the state's newborns are sent for care.
All told, between 2015 and 2019, close to half — 46% — of the 84 extremely preterm babies born at Lovelace either died at the hospital or were transferred to UNM, according to Health Department data and UNM NICU records. Twenty-one percent of the 170 extremely preterm babies born at Presbyterian died, and none was transferred to UNM during those years.
Experts said the findings should be investigated.
The disparity "should be of concern to families, the community, and the state of New Mexico," said Dr. David C. Goodman, a professor at the Dartmouth Institute for Health Policy & Clinical Practice at Dartmouth College. Goodman, who was the lead author of the September 2019 report Dartmouth Atlas of Neonatal Intensive Care, has studied the track records of dozens of U.S. hospitals that care for extremely preterm babies.
It is also a concern to Albuquerque medical professionals who care for these babies. Three Lovelace and UNM Hospital clinicians who contacted New Mexico In Depth and ProPublica about Lovelace voiced concerns about extremely preterm babies' outcomes and pointed to broader issues related to their care. Those issues included the lack of an on-site surgeon and other specialists, the timing of transfers to UNM when babies needed higher-level care, and disagreement over how best to care for these fragile newborns.
Lovelace and Presbyterian initially agreed to share detailed data on their neonatal outcomes with New Mexico In Depth and ProPublica, but ultimately refused to provide most of the promised information. To investigate the clinicians' concerns, the news organizations obtained state Health Department data on these newborns' deaths.
To better understand the disparity in outcomes between Lovelace and Presbyterian hospitals, New Mexico In Depth and ProPublica also obtained UNM hospital-transfer and intake logs, along with emails and other documents, and interviewed more than two dozen people, including current and former Albuquerque clinicians, neonatal transport team members, hospital officials and nationally recognized NICU experts. NICU administrators at Lovelace and Presbyterian spoke to the news organizations in early 2020. Since then, Lovelace has not made administrators available for comment.
Lovelace rejected any comparison that focused only on extremely preterm babies or that contrasted their death rates to Presbyterian's.
"Comparing us to only one other hospital as opposed to national benchmarks is flawed and not an appropriate basis for drawing broad conclusions," Lovelace Vice President for Marketing Serena Pettes wrote in an email.
Pettes said the news organizations were "seeking to undermine our quality of care" through a "misinterpretation of data." Asked how the hospital's data had been misinterpreted, she did not respond.
Three experts told New Mexico In Depth and ProPublica that it's cause for concern when level 3 neonatal hospitals, a designation that covers both Lovelace and Presbyterian, have higher death and transfer rates than neighboring facilities. Without access to patient records, numbers for neighboring hospitals were the best proxy to use in gauging outcomes, they said.
"Anytime you have a hospital that is delivering a lot of tiny babies that it has to send out or that die before you can send them out, you really have to ask the question, 'Are the mothers delivering at the right place?'" said Dr. Jeffrey B. Gould, a professor of pediatrics at Stanford University. A pioneer in NICU quality improvement, Gould is co-founder and chief executive of the California Perinatal Quality Care Collaborative.
Moreover, lax state oversight and a lack of hospital transparency about outcomes severely curtails the public's ability to know just how well hospitals are serving this vulnerable population. The state's loose regulations stand in sharp contrast to other states, like Texas and California, which mandate periodic inspections of neonatal intensive care hospitals and scrutiny of newborn outcomes.
The Lovelace clinician who witnessed the baby boy's death said New Mexico's lack of oversight is one reason families are in the dark about extremely preterm babies' outcomes at the hospital. Another is a culture of silence at the hospital when things go wrong: "We don't even talk about it within the NICU, but especially to the parents."
Comparing Lovelace and Presbyterian
Lovelace delivered about 2,700 babies in 2019; nearby Presbyterian delivered about 3,000, making those two hospitals the state's largest maternity centers. They are also the state's only level 3 neonatal intensive care hospitals, according to the state Health Department. Together, they delivered 28% of babies born statewide between 2010 and 2019, and 37% of the state's extremely preterm babies.
"If your pregnancy falls into the high-risk category, you can rest assured you'll be getting the best medical care available anywhere in the region," a Lovelace advertisement states.
Overall, Lovelace and Presbyterian had similar newborn death rates, the news organizations found — except when it came to the tiniest and most premature newborns.
Babies weighing less than about 2 pounds at birth are called extremely low birth weight, while those born before 28 weeks of pregnancy are labeled extremely preterm. While most extremely preterm babies are also extremely low birth-weight babies, that is not always the case. To account for all of these vulnerable infants, the news organizations evaluated death rates using both birth weight and gestational age.
Between 2015 and 2019, 34% of Lovelace's 88 extremely low birth-weight infants died, compared to 17% of Presbyterian's 197, according to the New Mexico in Depth and ProPublica analysis, which compared birth and death certificate data at the two hospitals. The calculations excluded babies who were born elsewhere and transferred to Lovelace or Presbyterian, and babies born weighing less than 350 grams, who are not considered viable.
The analysis also found a disparity in the death rate when calculated by gestational age, instead of by birth weight. Lovelace's hospital-wide death rate for extremely preterm babies was 36%, compared to Presbyterian's 21%.
"The differences are meaningful," Goodman said of the hospitals' death rates. "They're not slight differences. These are large differences."
"Thirty-six percent is higher than expected for this gestational age group," Goodman said. "It raises the question as to whether the care provided meets the needs of the newborn patients."
The news organizations also found that Lovelace transferred 66 infants, both full term and preterm, to the level 4 NICU between 2015 and 2019, while Presbyterian sent 17 babies, none of them preterm, UNM records showed.
"Every time we have a tiny baby, I cringe. We have a terrible track record with them," said the Lovelace clinician who was present when the baby died.
Another Lovelace NICU clinician voiced similar concerns about extremely preterm babies' outcomes, both in the delivery room and the NICU.
"They have only rudimentary policies in place for micropreemies, but not nearly as comprehensive as things that I've seen at other hospitals," the second Lovelace clinician said. (A copy of Lovelace's NICU infant care guidelines, reviewed by the news organizations and dated Feb. 1, 2017, briefly mentions extremely preterm and extremely low birth-weight babies' care in sections about nurse-to-patient ratios, thermoregulation and water loss, skin care, and body positioning.)
The clinicians were two of eight current and former Lovelace care providers who spoke to New Mexico In Depth and ProPublica about newborn care at the facility on the condition that they remain anonymous because speaking publicly could hurt their employment within New Mexico's small medical community. Not all of them were critical of the hospital.
"It's a well-run unit," a former Lovelace clinician said of the NICU. "I wouldn't hesitate to have my own child in that unit."
Pettes declined to respond to clinicians' concerns and criticized the news organizations' decision to grant them anonymity. "We are not able to respond to anonymous sources," she wrote in an email, calling the clinicians' comments "opinions, and not facts."
New Mexico's NICU Hospitals Face Little Regulatory Scrutiny
The American Academy of Pediatrics defines level 3 NICU hospitals as facilities equipped to care for high-risk babies. Unlike lower-level hospital nurseries, they are staffed by specialists experienced in treating the most at-risk and medically complex newborns.
In New Mexico, however, there's no legal definition of what constitutes a level 3 NICU. The state has no NICU-specific legal or regulatory oversight authority. Nor does the state have a role in certifying NICUs or monitoring newborn outcomes. The state has not conducted on-site inspections of any of the three Albuquerque NICU hospitals and has not analyzed neonatal death rates at the facilities, state Health Department spokesperson James Walton acknowledged.
The New Mexico Department of Health collects some details from the hospitals about mothers and newborns, including which mothers received infertility treatments to become pregnant, whether labor was induced and whether the delivery was by cesarean section. But the state cannot impose penalties on hospitals that fail to report such data, Health Department officials confirmed.
For example, New Mexico In Depth and ProPublica identified a discrepancy in Lovelace's reporting of cases of NEC, the dangerous intestinal condition. Lovelace reported only four neonatal NEC cases to the Health Department between 2015 and 2019, but NICU intake records at UNM showed 11 babies who were transferred from Lovelace with NEC during those years, including four in 2019 alone.
Goodman helped New Mexico In Depth and ProPublica analyze the Health Department's birth and death data.
The causes of disparities in outcomes between institutions are not always clear. Possibilities include a sicker patient population and less effective care, Goodman said.
Lovelace repeatedly declined to identify demographic or patient factors that might explain the disparity in the hospitals' extremely preterm neonatal death rates.
Identifying those factors requires careful review of patients' medical records, experts said. New Mexico In Depth and ProPublica did not have access to patient records. But the news organizations attempted to identify possible explanations using the data Lovelace and Presbyterian reported to the state Health Department from 2010 to 2019.
Babies born at 21 to 23 weeks' gestation frequently die shortly after delivery, and resuscitation practices for the age group vary, which could lead to differing outcomes. But a 2-to-1 death-rate disparity persisted when the analysis included only babies born at 24-27 weeks' gestation, who are less likely to die shortly after delivery. The number of extremely preterm twins and triplets, who often fare poorly, also did not explain the death-rate disparity. Nor did differences in maternal race or ethnicity, prenatal therapies or other potential risk factors for extremely preterm babies, including the proportion of boy births, teen mothers, mothers who underwent infertility treatment or induced labor, or mothers who had cesarean-section deliveries.
Pettes claimed that for all NICU-admitted newborns — including lower-risk full-term babies and premature babies — Lovelace's neonatal death rate is "significantly lower than the national average," and has declined over time. "As a whole, our mortality rate is less than half of the national NICU average."
But according to the Health Department data, full-term babies make up a much larger proportion of the hospital's NICU population than extremely preterm newborns, obscuring the death rate for the hospital's most at-risk babies.
Pettes declined to share the national benchmark she cited from a neonatal intensive care unit research collaborative, the Vermont Oxford Network. The network discloses outcomes only to member hospitals and declined the news organizations' request for extremely preterm babies' mortality rates at Lovelace and Presbyterian.
Pettes also objected to the news organizations' comparison of hospital-wide death rates.
Pettes disclosed that 22% of Lovelace's extremely low birth-weight babies died after admission to the NICU during 2015-2019.
But Goodman said NICU-only rates are not a true reflection of a hospital's outcomes.
"We include every extremely preterm baby who dies … in our research," said Goodman. "They are cared for by the NICU team and are the responsibility of the NICU team whether or not they are administratively admitted to a hospital's NICU."
Lovelace did not provide a hospital-wide death rate for these fragile babies.
Hospital-wide death rates are important indicators because labor and delivery unit practices can also affect survival, and babies who die in the NICU are not always recorded as NICU deaths, a Lovelace clinician noted.
It was impossible for the news organizations to compare NICU-only data between the hospitals. Presbyterian would not provide its NICU-only death rate. In addition, birth and death certificate data showed discrepancies in the Health Department's data on NICU admissions. Extremely preterm babies who survive delivery should always eventually be admitted to NICUs, experts said, but the news organizations found infants for whom there was no record of a NICU admission or a death certificate.
The hospitals did not acknowledge or explain the discrepancies.
"Lovelace Specials"
Lovelace transferred more than three times as many newborns to UNM's level 4 NICU as did Presbyterian, UNM intake logs show. Ten of the Lovelace transfers were extremely low birth-weight infants, three of whom died at UNM. None of Presbyterian's transferred babies were extremely preterm or extremely low birth-weight infants.
Information about neonatal transfers can help regulators identify facilities that aren't meeting babies' needs or find problems that hospitals should address, experts say.
Comparing UNM NICU intake logs with state data showed that close to 90% of Lovelace and Presbyterian's transfers to UNM were not captured in Health Department data, because the state only requires hospitals to report transfers occurring in the first 24 hours after delivery.
"If you don't have the data, you can't make change," said Dr. Scott A. Lorch, a professor of pediatrics and associate chair of the Division of Neonatology at the Children's Hospital of Philadelphia, and a leading authority on NICU outcomes.
At UNM Hospital, babies who arrived in dire condition were sometimes called "Lovelace Specials," according to two former UNM NICU clinicians who asked not to be named for fear of retribution.
Some of the Lovelace babies who had NEC arrived at UNM without needed X-ray reports, or with X-rays taken from angles that can miss signs of a worsening condition, a UNM pediatric radiologist said.
"That's what I've seen based on imaging: Patients often arrived at UNM in more advanced stages of NEC," the radiologist said. Unlike UNM and Presbyterian, Lovelace does not have a pediatric radiologist on staff, the radiologist noted. Lovelace declined to comment.
One of the two former UNM clinicians said that when babies arrived from Lovelace, "you just had no idea what you were getting into."
Clinicians questioned not only the number of newborn transfers but their timing.
Lovelace is sometimes too slow to send babies in crisis to UNM Hospital, where surgery can be performed if needed, four clinicians from both Lovelace and UNM said. Lovelace declined to respond to their allegation.
The pace of transfer matters because NEC can progress in a matter of hours from subtle symptoms to a life-threatening condition requiring emergency surgery. It is not unusual for level 3 NICUs to have surgeons on call or to have a transfer agreement with other hospitals. But if a surgeon cannot perform emergency procedures on-site, timely transfers to surgical hospitals can be a matter of life or death.
Of 18 babies with NEC who were transferred to UNM since 2012, 15 came from Lovelace. There isn't a hard-and-fast rule about when to transfer a sick infant to a higher-level facility, but transfer logs showed that of the 15 Lovelace babies sent to UNM, 12 were in a condition that required surgery when they got there, and two — a 5-day-old girl and a 12-day-old boy — died within hours of their arrival. Only one Lovelace baby with NEC was transferred and survived without surgery.
When NEC is caught early, it can be treated with antibiotics, a former UNM clinician said. "But you don't want to wait until they're so, so, so, so sick and then try to send them," the clinician said.
"They just wait too long," said the Lovelace clinician who witnessed the boy's death, referring to cases the clinician handled. "Babies that might otherwise have survived did not because they didn't get them to a place where they could have a surgeon if they needed it."
The former UNM clinician added a key explanation: "That's really where we get a lot of the kids, especially from Lovelace, is not having those pediatric surgeons available."
Does Lovelace Have a Pediatric Surgeon?
The question of whether Lovelace does, in fact, have an on-site pediatric surgeon, as Presbyterian does, is subject to debate.
In March 2019, the New Mexico Health Department and the Centers for Disease Control and Prevention informed Lovelace that a survey of the state's maternity and neonatal hospitals had concluded that Lovelace was not operating a level 3 NICU, but instead a level 2 special-care nursery. State officials based their conclusion on the lack of a pediatric surgeon and a pediatric anesthesiologist at Lovelace.
Hospital administrators successfully appealed that determination, claiming in an email obtained by the news organizations that among the "providers available" at Lovelace was a pediatric surgeon and other experts "on site 24/7."
But Lovelace clinicians told New Mexico In Depth and ProPublica that the claim was misleading.
"They've been saying they're going to have pediatric surgery for almost a decade," one Lovelace clinician said.
In some states, hospitals are required to support such claims with documentation. But emails indicate the state Health Department's chief medical officer, Dr. Thomas Massaro, prevented other Health Department staff from asking Lovelace to provide the names and board certifications of medical specialists. Massaro told New Mexico In Depth and ProPublica, "Neither we nor CDC required documentation of any of the hospital claims or submissions."
There's a reason hospitals fight for level 3 status.
Lovelace Women's Hospital opened its $11 million NICU in September 2007, positioning itself to compete with Presbyterian and UNM in the state's lucrative newborn acute healthcare market. Lovelace markets itself as a state-of-the-art maternal and newborn hospital. Expectant parents are told that should anything go wrong, maternal and neonatal medical specialists are available to provide expert care. Front and center in that promise is the "Level 3 Neonatal Intensive Care Unit."
Extremely preterm babies cared for in the NICU are known as "million-dollar babies," several clinicians said. That's no exaggeration: Hospital price sheets suggest care for these babies may bring Lovelace more than $1.2 million per baby from insurers.
Newborn intensive care has brought a lot of money to Lovelace and its privately owned parent company, Nashville-based Ardent Health Services. Between 2015 and 2019, Lovelace Women's 53-bed facility received more than $99 million in payments from Medicaid for NICU patient care, while Presbyterian's 58-bed NICU received $75 million during the same period, according to state data.
"It is no secret that the NICU is Lovelace Women's Hospital's golden goose," said Wendy Walter, a former adult ICU charge nurse at Lovelace who provided "helping hands" when the NICU was short-staffed. (Walter was fired by the hospital in January for working more hours than authorized. She contends that she worked additional hours at shift's end to properly document patients' treatments.)
Months after successfully defending its level 3 status, Lovelace went further, informing the state Health Department last year that the facility merited recognition as a level 4 NICU. That could put it in competition with UNM, where extremely preterm babies can bring in more than $2 million per infant.
In a Jan. 10, 2020, email to Massaro, Lovelace's director of women's services, Dr. Abraham Lichtmacher, wrote that the hospital now had "pediatric surgery, which is represented by the pediatric surgeons from UNM as they have finalized and obtained their privileges at Lovelace Women's Hospital allowing them to perform their procedures on site."
Three current and former Lovelace clinicians expressed dismay that an administrator at the hospital made such a claim.
"They don't have surgical support staff, pediatric surgical nurses — or even a place to do baby surgeries," one said.
A few weeks after Lichtmacher emailed the state, UNM pediatric surgeon Dr. Jason McKee contradicted Lichtmacher's claim in an interview with New Mexico In Depth and ProPublica. Asked if he had surgical privileges at Lovelace, McKee told the news organizations in early 2020: "I have consulting privileges at Lovelace so I can go and see a child, but as of now we don't do surgery over there."
McKee was noncommittal when asked if that would change in the near future, but noted that it would require Lovelace to hire surgical support staff.
Lovelace recently declined to say if any pediatric surgeries have been performed at the hospital or if it has surgical support staff available to perform such operations.
"We have, and continue to maintain, pediatric surgeon availability for our patients but defer to the surgeon's clinical judgement as to the best place for those surgeries to occur to achieve the best outcomes for the patient," Pettes, the Lovelace vice president for marketing, wrote in an email. She declined to say if Lovelace employed a pediatric surgeon or pediatric surgery support staff, or if any neonatal surgeries have been conducted at Lovelace in recent years.
Job listings for Lovelace Women's posted as recently as Feb. 27 stated that the hospital "hopes to establish Pediatric Surgery in the future."
Lovelace last sought the Health Department's acknowledgement of its NICU as a level 4 facility in August, according to Walton, the department spokesman.
Lovelace refused to comment on its efforts to be recognized as a level 4 neonatal hospital.
A November 2020 Health Department document still listed Lovelace as a level 3 neonatal facility.
Why Lovelace Might Lag
One situation that experts say can cause disparities in outcomes at neonatal facilities is the number of patients they treat, or what researchers call "patient volume."
Hospitals that care for a larger number of high-risk babies have better outcomes, likely the product of their experience, said Lorch, the authority on NICU outcomes. Teams need practice working together to meet the needs of high-risk babies, experts said.
While it is unclear whether patient volume was a factor in higher death rates among the tiniest babies at Lovelace, the hospital had less than half the patient volume of extremely preterm babies that Presbyterian had. Each year, between 2010 and 2019, Lovelace delivered on average 16 extremely preterm babies, compared to 38 at Presbyterian.
Research by Lorch and others shows that patient volume can predict survival rates for more developed "very" preterm babies, those born at 28 to 32 weeks' gestation.
"You need experience caring for those babies," said Harvard Medical School professor Dr. Ann Stark, who pioneered the American Academy of Pediatrics' guidelines for levels of neonatal care.
The role hospitals' patient volumes plays in survival among extremely preterm babies — those born before 28 weeks of pregnancy — has not been studied. But research has shown that dedicating an expert clinical team to care for extremely preterm babies can improve outcomes. In that light, having three Albuquerque hospitals within a few miles of each other that each care for a relatively small number of extremely preterm babies might not make sense, some experts said.
"Maybe having one high-volume center is better than having two or three centers that take care of those same babies," said Dr. José Antonio Perez, a clinical professor of pediatrics at the University of Washington in Seattle and the NICU medical director at Swedish Issaquah Medical Center.
One way neonatal hospitals improve the quality of care after things go wrong is by convening formal staff morbidity and mortality, or "M&M," case reviews. New Mexico regulators do not require M&M case reviews, but NICU staff at both Presbyterian and UNM hold them anyway.
Lovelace officials repeatedly declined to say if they do.
New Mexico In Depth and ProPublica asked eight current and former clinicians who worked at the Lovelace NICU over the past decade if they had participated in M&M case reviews at Lovelace. None had. They spoke with the news organizations without the hospital's permission.
It would be "egregious" for a facility to not conduct M&M case reviews, Goodman said.
"Each newborn with a significant event, be it death or a significant morbidity that could even possibly be related to the care administered, I think those all require careful discussion to see if there is any systemic cause," Goodman said.
ProPublica's deputy data editor, Hannah Fresques, reviewed the analysis.
Like every other storefront in downtown Lincoln, Nebraska, the Coffee House — a cavernous student hangout slinging espresso and decadent pastries since 1987 — saw its revenue dry up almost overnight last spring when the coronavirus pandemic made dining indoors a deadly risk. Unlike most, however, the business wouldn’t have access to the massive loan fund that Congress made available for small enterprises in late March.
The reason had nothing to do with the business itself, which had been having one of its best years ever, according to its owner, Mark Shriner. Rather, it all came down to one box on the application for the Paycheck Protection Program money, which asked whether the company or any of its owners were “presently involved in any bankruptcy.” Shriner had filed for Chapter 13 in 2018 after a divorce and was still making court-ordered debt payments, so he checked “yes.” He was automatically rejected and lost about $25,000 in payroll and other costs that the program would have covered.
“My money is my store’s money. When I got divorced and she was entitled to half, it’s not like a company can raise money real quick,” Shriner said, noting the way in which many small businesses are structured as pass-through entities that pay taxes on any profits as individual income. “All these businesses that had a tough time and are trying to make payments at the same time are getting kind of hosed.”
Thousands of people file for Chapter 13 bankruptcy every year — 282,628 did so in 2019 alone. Although it’s not clear how many of them own businesses, all of those individuals were barred from the PPP program, along with the thousands of businesses currently working through a reorganization plan under Chapter 11 and the family farms that file under the lesser-known Chapter 12.
In December, Congress allowed the Small Business Administration to give exceptions to some debtors. But so far the SBA has stuck to its position that debtors in bankruptcy aren’t entitled to government aid. “Currently, the SBA is administering the law as written,” SBA spokeswoman Shannon Giles emailed in response to questions.
Although Shriner did receive the $10,000 Economic Injury Disaster Loan advance payment, which doesn’t have to be repaid, the SBA turned him down for a larger Economic Injury Disaster Loan because of his personal credit. Instead, he took out two loans worth $107,000 from Square — with total fees of nearly $12,000 — to keep the lights on and the staff paid as they operated on a drastically limited basis, still down by more than half since before the pandemic.
“The biggest consequences are that we haven’t had the time to take a week and shut down and plot our way forward, come up with a to-go menu or some new things, because we’re busy working the counter trying to save money,” Shriner said. “A lot of other businesses that got PPP have been able to hire people to help them head in a different direction, get apps made, fix their websites, that kind of thing.”
The prohibition on PPP loans going to debtors began with the SBA’s original concept for the program: It extended its 7(a) loan program, its most common credit offering for small businesses, which already bars bankrupt companies. New pandemic relief measures were basically grafted on to those rules, which reflect an agency position dating back to its beginnings in the 1950s that bankrupt companies were more likely to default.
“SBA has an institutional prejudice against people who file bankruptcy,” said Ed Boltz, a North Carolina bankruptcy lawyer who serves on the board of the National Association of Consumer Bankruptcy Attorneys. “The attitude of government in a lot of things is, ‘Bankruptcy is hard and confusing and these people are probably bad people.’”
Almost immediately, this position was challenged in courts across the country. In Hidalgo County, Texas, for example, an emergency medical transportation company in bankruptcy sued after it was denied a PPP loan. A bankruptcy judge issued a temporary injunction against the SBA, saying it was in the public interest during the pandemic to make sure the company’s trucks and helicopters could keep ferrying patients to hospitals. In June, the 5th U.S. Circuit Court of Appeals vacated that decision, saying the judge had exceeded his authority.
Meanwhile, the SBA hastily published a rule explicitly barring companies in bankruptcy from participating in its pandemic relief program. “The Administrator, in consultation with the Secretary, determined that providing PPP loans to debtors in bankruptcy would present an unacceptably high risk of an unauthorized use of funds or non-repayment of unforgiven loans,” the rule read. “In addition, the Bankruptcy Code does not require any person to make a loan or a financial accommodation to a debtor in bankruptcy.”
Around the same time, a Florida radiology center also serving COVID-19 patients received a PPP loan, even though it was reorganizing under Chapter 11 bankruptcy. When it filed for approval with its bankruptcy court to take on the additional debt, the SBA objected again. The bankruptcy court found in favor of the radiologists in June, writing that “it is plain Congress did not intend to exclude chapter 11 debtors from the Paycheck Protection Program.” In December, however, the 11th Circuit overturned the lower court and sided with the government.
Maury Udell, the radiology company’s lawyer, said he plans to appeal to the Supreme Court. The PPP is more of a grant than a loan, he argues, since all companies had to do in order for the money to be forgiven is spend most of it on payroll. Bankrupt companies are arguably more likely to do so, given that they’re on court-ordered plans for how they must manage their expenses. Besides, the program did not require that companies demonstrate their ability to repay — plenty of businesses on very shaky footing applied for and received funding, sometimes filing for bankruptcy later.
“The SBA’s argument for not allowing Chapter 11 debtors is that the risk of nonpayment is high,” Udell said. “That’s not a factor in whether you were approved. It’s just as high as anyone else, because there’s no other underwriting guidelines.”
Frustration with the SBA’s position mounted through the fall until December, when Congress passed a fresh round of $900 billion in pandemic-related relief, along with the regular budget. It included $285 billion for a second draw of PPP loans, and a bit of potential relief for debtors: an amendment to the U.S. Bankruptcy Code that allows PPP loans to businesses that have filed for bankruptcy under Chapters 12, 13 and Subchapter V, a new category for small businesses established in 2019. (Chapter 11 debtors were left out.)
However, there was a catch: In order to trigger the exemption, the SBA would have to write a letter to the Executive Office of the U.S. Trustee, an division of the Justice Department that oversees U.S. bankruptcy courts, alerting it to the change. So far it has not done so, even as Congress has extended the deadline for PPP applications to May 31, with $103 billion in authorized funds yet to be expended.
President Joe Biden’s choice to run the SBA, Isabella Guzman, was confirmed on March 16. The SBA would give no indication of whether she plans to change course. Spokespeople for senators on the committees of jurisdiction either had no comment or said they were looking into the issue.
Last week, as his hope of getting a PPP loan waned, Mark Shriner set up a GoFundMe page to try to keep his doors open. More than $21,000 has flowed in. Meanwhile, he also learned about the Restaurant Revitalization Program established by the $1.9 trillion American Rescue Plan. So far, since it’s a straightforward grant rather than a loan, it doesn’t seem to prohibit applications from companies — or company owners like him — who’ve filed for bankruptcy. But he’s not counting on anything, since aid programs have been so disappointing.
It’s a difficult contrast, he said, when he looks around town and sees all the federal money that helped people who didn’t always need it.
“I’m not a wealthy person at all, but I have many millionaire friends who own businesses, insurance firms, architecture firms,” Shriner said. “These millionaires got money and money and money and money from the government, and they’re all driving on the golf course. It is tough when I think about it.”
When Congress earmarked hundreds of billions of dollars for the Paycheck Protection Program, ProPublica believed the public had a right to know how the money was being spent. A federal judge agreed.
This article was published on Friday, March 12, 2021 in ProPublica.
On March 16, 2020, our world, like everyone else’s, was falling apart. We were suddenly homebound. Our incredible staff was juggling pandemic fears, upended home lives and uncertainty. But one thing was immediately clear: We would not stop reporting.
Our reporters and editors immediately scheduled a Zoom meeting with me, their newly minted general counsel. They were interested in public records requests. They needed a strategy. Now. This was an unprecedented health crisis that would require action at every level of local and federal government. It is the press’ responsibility to hold them accountable, but to figure out how effective the government response was, we’d need information.
That afternoon, I wrote to my lawyer colleagues at The New York Times, The Washington Post and The Wall Street Journal (yes, we all know one another; no, we have no other friends). “Not sure if this is a dumb idea,” I wrote, but these extreme times might call for deep collaboration among competitors. Let’s strategize together, sue together and share documents together. This moment is too overwhelming, and government agencies were in disarray.
For all their rivalry, news organizations actually work together all the time, especially on the legal side. The reaction was enthusiastic.
But it wasn’t until the end of April that my colleague at the Post had a brilliant idea. Congress had earmarked hundreds of billions of dollars for the Paycheck Protection Program (the PPP) to help small businesses weather the crisis. But as gobs of money flew out of the government, it was quickly clear that there were issues. The rollout was a mess. Money seemed scarce. And we couldn’t answer basic questions: Were the people who were supposed to get help actually getting it? Were the politically connected disproportionately benefiting? What about small businesses? Rural businesses? Minority-owned businesses? Were they getting enough? Too much? We had no idea.
Of course, all of the major news organizations had similar questions. But the government — specifically, the Small Business Administration — was stonewalling everyone. The agency would make the data public when it damn well pleased (and with the virus, who could say when that would be?), and then only the information it thought we should have. The public interest in this data seemed so obvious. There were livelihoods at stake and astonishing amounts of taxpayer money cascading into the economy. Readers needed to know whether we, as a society, could meet the moment. It was bigger than one news organization. Maybe together, we wouldn’t be ignored.
The Post led the charge into federal court, welcoming a motley crew. First the group from the March email chain. Then Bloomberg. Soon The Associated Press was there too. NBC. ABC. CNN. Reveal. American City Business Journals. They had hired a law firm, Ballard Spahr, where I used to work. (I highly recommend turning your old boss into your client who has to tell you your ideas are great. The tables have turned, Chuck!)
After we sued, the SBA finally posted some information. But, in the words of the judge, it contained “glaring gaps”; the agency wouldn’t give the precise amounts of loans over $150,000 and the identities of many recipients. We pressed. As the judge would later write, there were many reasons to think that shoving billions of dollars out the door needed public scrutiny. Among them, this was likely “the ideal environment for fraud.”
The judge also pointed out that everyone who applied for a PPP loan was told that their information could be public, and that the nature of the PPP program rules meant that people looking at the data would generally not be able to discern other potentially sensitive information about the recipients, like the size of their payroll or individual salaries. As we note on our site, the data reflects loan applications that have been approved, but not necessarily money distributed to or used by a given company.
In November, the judge issued a 40-page . He said it better than we ever could: “Here, the Court has little doubt that disclosure of the withheld information would serve the public interest. In light of SBA’s awesome statutory responsibility to administer the federal government’s effort at keeping the nation’s small businesses afloat amidst an economic and health crisis of unprecedented proportions, the public interest in learning how well the agency fulfilled its charge is particularly pronounced.” (That’s the judge equivalent of lighting fireworks in the street.) In the end, he said, the decision was “not particularly close.”
ProPublica decided to turn this trove of data into a to let the public see in an organized way what its government has been up to. It’s a journalistic strategy that has become a ProPublica signature. Recent projects have included a collection of that showed the extent of the insurrection at the Capitol on Jan. 6, a tracker for all of the “” the Trump administration tried to impose in its waning days (and of the Biden administration’s efforts to undo them) and thousands of that give an unprecedented look into how internal police discipline actually works.
We included some, but not all, of the information we got from the SBA (we didn’t include street addresses, for example). The data helped our reporters . And the app, originally published in July and since updated, has continued to be a valuable resource for and many readers.
Interestingly, we have heard recently from a number of people — mostly small-business owners — who found themselves in the app. Some swere upset and disagreed with the finding that the public interest in scrutinizing the government justified making this information available, saying that this data should be private. Some were confused, saying that they don’t think they ever applied for a loan in the first place (if this happened to you, our reporters ). What’s clear is that the range of businesses that used the PPP reflects the fact that the pandemic a swath of our nation. That includes many people who never thought they would be on the receiving end of taxpayer assistance.
What this tragedy, and our attempt to make this information available, also shows us, I think, is that there isn’t, and shouldn’t be, any stigma. This is a story about government doing big things and quickly, both a sign of relief working as intended and a way to identify how it fails. And the only way we can parse it out is if we can actually look at what happened.
The court ordered the government to pay more than $100,000 in lawyer fees for making us fight so hard, but we are pressing for the release of even more critical information. ProPublica separately filed suit against the Department of Health and Human Services for information about the federal stockpile that was woefully lacking in the early days of the pandemic. And we’ll keep digging for more. Agencies around the country have been stalling in getting us records, but we haven’t given up.
Who knows. We may just get the coalition back together again.
Jim Malatras stood by a Cuomo administration report on nursing home deaths he knew undercounted the true loss of life. Today, he is chancellor of New York State's public university system.
This article was published on Thursday, March 11, 2021 in ProPublica.
Last July, when the New York State Department of Health issued a absolving the Cuomo administration of responsibility for the soaring number of COVID-19 deaths in the state’s nursing homes, Jim Malatras was tasked with handling what quickly became a storm of criticism.
Health care experts and lawmakers had derided the report as deeply flawed and designed to provide political cover for Gov. Andrew Cuomo. But Malatras, a former administration official who had been brought back from a job in higher education to assist Cuomo in responding to the pandemic, did not shrink from his assignment.
In an interview with ProPublica days after the report’s release, Malatras defended the integrity of the report, which he said had been developed by health department experts with data analysis help from the consulting firm McKinsey & Company.
Malatras said the report’s authors had used a sophisticated statistical model to reach a persuasive conclusion: Infected nursing home staff had been the chief driver of the spread of disease and death, not the thousands of potentially still-contagious patients transferred from hospitals to the homes under a Cuomo administration policy adopted early in the pandemic.
Malatras told ProPublica the report should silence the administration’s many critics, who he said had engaged in a cynical effort to blame Cuomo for contributing to the deaths of more than 6,000 nursing home residents by early last summer. He said he looked forward to the report’s critics doing their own studies.
“Write a public letter countering the report, run their own tests, and we’ll see what it looks like,” Maltatras said. “Let’s see their tests.”
One month after the release of the report, Malatras was appointed chancellor of the State University of New York system, one of the largest public university systems in the country, with scores of campuses and about 400,000 enrolled students. At the time, the SUNY Board of Trustees described Malatras as a “visionary” whose work with Cuomo made him uniquely qualified to run the sprawling higher education system at a critical moment in its history.
In the wake of new reporting by and , it is clear Malatras had not told the full story of the health department’s report. The Cuomo administration, it turned out, had removed from its analysis the state’s count of nursing home residents believed to have died of COVID-19 after being transferred from the homes to local hospitals. The administration’s changing of the report meant that the sophisticated analysis offered to the public last July had failed to account for thousands of additional COVID-19 deaths among nursing home residents, and the administration knew it.
In a statement, Malatras said he had played a role in shaping and editing the health department report, but had not been the one to remove the hospital deaths data. Beth Garvey, counsel to Cuomo, said in a statement the hospital deaths had been omitted at the time because the state was then still trying to make sure the count was accurate. The administration did not release the true total of nursing home deaths due to COVID-19 until last month, and when it did, the number grew by some 50%, from more than 8,000 to more than 12,000.
Gary Holmes, a spokesperson for the health department, said in a statement that the department in fact performed an analysis last July that included all deaths of nursing home residents — those who died in facilities and in hospitals — and the result was the same: The greatest surge in deaths at the homes resulted from infected workers and not the state’s policy requiring homes to accept potentially contagious patients who had tested positive for COVID.
Holmes offered no explanation for why the health department had not said so at the time. The department, he said, had now made public both the truncated July report and the more complete report including all nursing home deaths. He said the department stood by both reports.
Ron Kim, the Democratic chair of the State Assembly Committee on Aging, said anybody involved in the July report ought to resign from their positions.
“In my personal opinion, they conspired in a coordinated fraud,” Kim said.
In February, Kim accused Cuomo of personally threatening to ruin him over Kim’s criticism of the state’s handling of nursing home deaths. Cuomo has denied he ever threatened Kim.
ProPublica contacted Malatras again this week, and asked why he hadn’t previously disclosed the removal of the hospital deaths from last July’s report, whether he’d agreed at the time with the decision to remove the additional deaths, and whether he stood by the integrity of the health department’s work and his defense of it.
Citing ongoing federal and state investIgations into the Cuomo administration’s handling of the COVID-19 crisis in the state’s nursing homes, Malatras issued a short statement: “Thank you for your follow up. As I’m sure you can appreciate, given the nature of the various inquiries, I’m not going to respond to any questions beyond what I said the other day. My focus and my energies are on my job as Chancellor of SUNY, which I will continue to do every day.”
Malatras, who from 2017 to 2019 ran the Rockefeller Institute of Government, a SUNY-affiliated think tank, directed ProPublica to remarks he had made last week about his involvement with the health department report.
“Given my expertise in public policy including public health issues such as opioid misuse and health care, I was asked to help review feedback on the scientific language in that public report to make it more accessible for a general audience,” Malatras said on Mar. 5 at an event in the Bronx. “That’s the exact role I played while at the Rockefeller Institute of Government on dozens of reports as they neared publication. As with many reports, there were back and forth with structure, citations and other language during the process, but to be clear, I included the fatalities data provided by the New York State Department of Health which I did not alter and change.”
ProPublica reached out to Merryl Tisch, chair of the SUNY Board of Trustees, to ask if she had any concerns about the role Malatras had played in the July report on nursing home deaths, but received no response. Cesar Perales, the board’s vice chair, would not comment when asked about Malatras.
The Cuomo administration’s official count of nursing home deaths due to COVID-19 has been a source of controversy almost from the outset of the pandemic. At first, New York state only counted confirmed cases of deaths from COVID-19, while other states reported both confirmed and presumed cases. New York eventually began to formally record both confirmed and presumed cases, but refused to include deaths of residents that occurred at hospitals in nursing home figures, record keeping that was routine in many other states.
Republican and Democratic lawmakers in both Albany and Washington hammered the administration for refusing to disclose the deaths in hospitals, and accused Cuomo of trying to hide the full scale of the state’s failures to protect the population most at risk of being killed by the virus.
For months, the Cuomo administration claimed it couldn’t release the number of additional deaths because it was struggling to make sure they were accurate, an assertion ridiculed by public health experts and nursing home industry leaders. Counting COVID-19 deaths of nursing home residents no matter where they died was not complicated, they said, especially for a health department regarded as among the best in the nation.
Questions about the true scope of nursing home deaths in the state intensified after the Cuomo administration issued a policy on Mar. 25, 2020, stating that nursing homes had to accept patients who were released by hospitals after testing positive for COVID-19 and deemed “medically stable” enough to be transferred. The homes were barred from testing the patients to see if they were still infected.
Nursing home operators and families of residents objected to the policy, saying it needlessly put already vulnerable residents at greater risk. Republican critics of Cuomo claimed the policy led to thousands of needless deaths.
The July report issued by the Department of Health asserted that such claims were not true. It said data showed that the greatest peaks of deaths in the homes mostly followed peaks in infections of staff members, and preceded peaks in nursing home admissions from hospitals. It dismissed the idea that the Mar. 25 policy had any strong impact on the number of deaths.
The revelations of the last week, however, make clear that the July report had omitted many deaths from its analysis. The health department indeed tracked the numbers of residents who died of COVID-19 in nursing homes and at local hospitals, and was confident enough of the accuracy of the numbers to include them in a draft of the July report, according to interviews and a review of documents by The New York Times. Those numbers showed that the true death toll was closer to 9,000 by July than the publicly acknowledged 6,000.
“The health department knew what the numbers were, and wanted them in the July report,” said Bill Hammond, a policy analyst at the Empire Center, an Albany think tank. “They were the ones with the Ph.D.s. They were the scientists. They had done the work. Taking the numbers out was simply indefensible.”
Denis Nash, an epidemiologist who is executive director of the City University of New York’s Institute for Implementation Science in Population Health, agreed.
“The original approach was flawed from an epidemiological and causal inference standpoint,” Nash said. “The missing deaths was one of several red flags. Would any study be valid if it excluded deaths known to occur in hospitals versus in a nursing home? No, that would be a fatal flaw.”
The Empire Center, which successfully sued the Cuomo administration this fall to force the release of the hospital deaths, recently issued on the possible impact of the administration’s Mar. 25 directive, which led to more than 6,000 transfers of COVID-19 patients from hospitals to nursing homes. Hammond said that while the study showed the directive had not been the primary cause of the greatest surges in nursing home deaths, there was still reason to believe it had led to as many as 1,000 additional deaths in the homes.
“The entire thrust of our report was that the health department’s claims that the Mar. 25 directive did not have any meaningful correlation to deaths in the homes was wrong.”
The administration did not respond when told of Hammond’s assertions.
Malatras is a longtime confidante of Cuomo, having served as his chief of operations from 2014 to 2017. He rejoined Cuomo as the pandemic worsened last spring, and became one of the governor’s three or four closest advisers on the state’s response.
The New York Times reported late last week that Malatras and several other senior advisers to Cuomo reworked the health department’s July report, and that a decision was made to remove the hospital deaths for fear the complete numbers would be an embarrassment for the governor.
Garvey, Cuomo’s counsel, issued a statement after the Times’ report, saying that the ultimate decision to remove the hospital deaths was made by “the Chamber.” Hammond said he regarded “the chamber” to be a coy way of conceding without saying so directly that the governor himself made the decision. An administration spokesperson did not respond when asked what Garvey meant by “the chamber,” and about Hammond’s interpretation.
Garvey said the Cuomo administration had long acknowledged it wasn’t making public the count of deaths in hospitals, but noted that the deaths had always been included in the total figures for COVID-19 deaths in New York state.
Back in July, days after the health department report was made public, ProPublica asked Malatras about what methodology the report had used, who had written it and why the administration had claimed it was peer-reviewed. Malatras would not say who authored the report and conceded the analysis had not been peer-reviewed in the way a report in a medical journal would have been.
At the time, Malatras said nothing about the removal of hospital deaths or whether he or any other senior aide to Cuomo had played a role in reworking aspects of the report.
“Some people alleged that the spread of infection came from early cases; some people said it was due to the amount of personal protective equipment; some said it was the relative age of residents; some said it was the quality of the facilities,” he said of the questions the report tried to answer. “So we measured that. We took the independent variables and measured it against the fatalities.”
Malatras added at the time: “This is a sort of academic study. You can’t with 100% certainty say none of the cases were due to admissions or age or other things. Of course not. That’s not what an academic study does; it takes data and says what are the strongest variables. We found it was the workforce.”
ProPublica asked a McKinsey spokesperson if the firm had been aware of the removal of the hospital deaths and whether it was comfortable with that decision and with the limited report that was released last July. The firm said it could not comment.
When the SUNY Board of Trustees named Malatras as chancellor last August, the board said it had forgone a national search, instead looking only at candidates within its ranks, because of the urgency of the moment, as colleges across the country wrestled with how to deliver for their students during the pandemic. Malatras had served as chancellor at a SUNY campus, Empire State College, prior to rejoining the administration during the pandemic.
“A critical lesson learned from Covid-19 is that a pandemic demands urgent action,” board member Stanley Litow wrote after Malatras had been appointed. Of Malatras, Litow wrote, “Importantly, New York Governor Andrew Cuomo turned to him to help manage the overall effective response to the pandemic where he worked closely with all agencies, especially those in health and economic development areas.”
Lawmakers from both major parties raised alarms about the appointment of Malatras, objecting to the decision not to conduct a national search and questioning whether someone so close to Cuomo could truly be an independent protector of the state university system. The Board of Trustees was unmoved.
“Covid-19 is a pandemic with no precedent,” Litow wrote. “Finding the right new leadership for SUNY required prompt and effective action. Breaking with tradition will prove to be the right decision.”
Litow did not respond to a request for comment on Malatras and his role in crafting and defending the July report.
Oportun Inc., a small-dollar loan company, disclosed to investors that it is the subject of a probe by the Consumer Financial Protection Bureau following reporting by ProPublica and The Texas Tribune.
This article was published on Monday, March 8, 2021 in ProPublica.
A federal consumer watchdog agency has launched an investigation into a company that aggressively sued thousands of Latino borrowers in Texas during the coronavirus pandemic while depicting itself as a financial ally of the community.
Oportun Inc., a Silicon Valley-based installment lender, which was founded to help Latino immigrants build credit so they can go on to achieve the American Dream, disclosed to investors last week that it had received a from the Consumer Financial Protection Bureau.
The company indicated that it was part of a larger probe of small-dollar lenders by the federal watchdog, which was formed by Congress in the wake of the 2008 financial crisis in an effort to better guard Americans from abusive lending practices.
The investigation comes after ProPublica and The Texas Tribune last year that Oportun had become the most litigious personal loan company in Texas, suing thousands of lower-income borrowers at a rapid pace even as other lenders halted or slowed legal action during the pandemic.
An analysis of court records in nine of Texas’ 10 largest counties — home to the vast majority of the 80 kiosks and strip mall storefronts the company operates in the state — found that Oportun sued Texas borrowers more than 47,000 times from May 2016 through July 2020. More than 5,000 lawsuits were filed after the World Health Organization declared the coronavirus a pandemic.
The company also routinely charged high interest rates and kept borrowers on the hook, sometimes for years, by offering increasingly larger loans with slightly lower rates, the news organizations found.
In its latest quarterly financial , Oportun told investors that the federal investigation would “focus on the company’s legal collection practices from 2019 to 2021 and hardship treatments offered during the COVID-19 pandemic.”
Company officials told investors that they were unable to predict the outcome of the federal probe and did not know if it would “result in any action or proceeding against the company or in any changes to its practices.”
In a statement to ProPublica and the Tribune, Oportun said it would cooperate with the investigation but that it “believes our practices have been in full compliance with CFPB guidance” and that it has “followed all published authority on these matters.”
The CFPB didn’t respond to a request for comment.
The federal investigation comes as President Joe Biden’s administration began staff at the bureau in anticipation of more enforcement activity.
In a letter to staff in January, acting Director Dave Uejio said his two top priorities are to assist consumers who have been economically impacted by the COVID-19 pandemic and to address racial inequality.
“On COVID-19, we need to take swift action now, in order to make sure our actions help people in the middle of the crisis, rather than just cleaning up after the fact,” Uejio . “(W)e will also look more broadly, beyond fair lending, to identify and root out unlawful conduct that disproportionately impacts communities of color and other vulnerable populations.”
Horacio Mendez, president and CEO of the Woodstock Institute, a nonprofit policy group that advocates for fair lending and economic equality, said that, in the past, many bureau investigations ended in settlements that he and other advocates believed were too lenient to change behavior.
In Oportun’s case, he said the behavior was particularly egregious because the company was certified as a , an esteemed federal designation for banks, credit unions and other lenders that largely serve low-income or underserved communities of color.
“What they showed us before is that the drive for profitability often overrides ethical behavior,” Mendez said of Oportun. “And the fact that they were a CDFI and did that, it was an extra cross in their obituary.”
In December, the Woodstock Institute and dozens of other consumer advocacy organizations and Latino civil rights groups to become a national bank, citing the ProPublica and Tribune investigation and another by The Guardian into the company’s prolific legal debt collection practices in California.
Oportun made some changes to its debt collection and business practices last year.
After ProPublica and the Tribune began asking questions about its debt collection practices, the company announced that it would drop all pending lawsuits, temporarily suspend new filings and file 60% fewer cases in the future. It also vowed to cap interest rates on its loans at 36%.
Consumer advocates have said those measures don’t go far enough.
Ann Baddour, director of the Fair Financial Services Project at the nonprofit advocacy group Texas Appleseed, described the bureau’s investigation of Oportun and other small-dollar lenders as encouraging.
“Families in Texas are suffering right now from a double whammy with financial setbacks due to the pandemic compounded by the winter storm,” she said, referencing the cold blast last month that left millions of residents without power and water. “It is essential that businesses that lend in our state are held accountable to the law and that they treat customers fairly.”
