Politics
FAQ: What You Need to Know About the NSA’s Surveillance Programs
This story was originally published on June 27, 2013.
There have been a lot of news stories about NSA surveillance programs following the leaks of secret documents by Edward Snowden. But it seems the more we read, the less clear things are. We've put together a detailed snapshot of what's known and what's been reported where.
What information does the NSA collect and how?We don’t know all of the different types of information the NSA collects, but several secret collection programs have been revealed:
A record of most calls made in the U.S., including the telephone number of the phones making and receiving the call, and how long the call lasted. This information is known as “metadata” and doesn’t include a recording of the actual call (but see below). This program was revealed through a leaked secret court order instructing Verizon to turn over all such information on a daily basis. Other phone companies, including AT&T and Sprint, also reportedly give their records to the NSA on a continual basis. All together, this is several billion calls per day.
Email, Facebook posts and instant messages for an unknown number of people, via PRISM, which involves the cooperation of at least nine different technology companies. Google, Facebook, Yahoo and others have denied that the NSA has “direct access” to their servers, saying they only release user information in response to a court order. Facebook has revealed that, in the last six months of 2012, they handed over the private data of between 18,000 and 19,000 users to law enforcement of all types -- including local police and federal agencies, such as the FBI, Federal Marshals and the NSA.
Massive amounts of raw Internet traffic The NSA intercepts huge amounts of raw data, and stores billions of communication records per day in its databases. Using the NSA’s XKEYSCORE software, analysts can see “nearly everything a user does on the Internet” including emails, social media posts, web sites you visit, addresses typed into Google Maps, files sent, and more. Currently the NSA is only authorized to intercept Internet communications with at least one end outside the U.S., though the domestic collection program used to be broader. But because there is no fully reliable automatic way to separate domestic from international communications, this program also captures some amount of U.S. citizens’ purely domestic Internet activity, such as emails, social media posts, instant messages, the sites you visit and online purchases you make.
The contents of an unknown number of phone calls There have been several reports that the NSA records the audio contents of some phone calls and a leaked document confirms this. This reportedly happens “on a much smaller scale” than the programs above, after analysts select specific people as “targets.” Calls to or from U.S. phone numbers can be recorded, as long as the other end is outside the U.S. or one of the callers is involved in "international terrorism". There does not seem to be any public information about the collection of text messages, which would be much more practical to collect in bulk because of their smaller size.
The NSA has been prohibited from recording domestic communications since the passage of the Foreign Intelligence Surveillance Act but at least two of these programs -- phone records collection and Internet cable taps -- involve huge volumes of Americans’ data.
Does the NSA record everything about everyone, all the time?The NSA records as much information as it can, subject to technical limitations (there’s a lot of data) and legal constraints. This currently includes the metadata for nearly all telephone calls made in the U.S. (but not their content) and massive amounts of Internet traffic with at least one end outside the U.S. It’s not clear exactly how many cables have been tapped, though we know of at least one inside the U.S., a secret report about the program by the NSA’s Inspector General mentions multiple cables, and the volume of intercepted information is so large that it was processed at 150 sites around the world as of 2008. We also know that Britain’s GCHQ, which shares some intelligence with the NSA, had tapped over 200 cables as of 2012, belonging to seven different telecommunications companies.
Until 2011 the NSA also operated a domestic Internet metadata program which collected mass records of who emailed who even if both parties were inside the U.S.
Because it is not always possible to separate domestic from foreign communications by automatic means, the NSA still captures some amount of purely domestic information, and it is allowed to do so by the Foreign Intelligence Surveillance Court.
The collected information covers “nearly everything a user does on the Internet,” according to a presentation on the XKEYSCORE system. The slides specifically mention emails, Facebook chats, websites visited, Google Maps searches, transmitted files, photographs, and documents of different kinds. It’s also possible to search for people based on where they are connecting from, the language they use, or their use of privacy technologies such as VPNs and encryption, according to the slides.
This is a massive amount of data. The full contents of intercepted Internet traffic can only be stored for up to a few days, depending on the collection site, while the associated “metadata” (who communicated with whom online) is stored up to 30 days. Telephone metadata is smaller and is stored for five years. NSA analysts can move specific data to more permanent databases when they become relevant to an investigation.
The NSA also collects narrower and more detailed information on specific people, such as the actual audio of phone calls and the entire content of email accounts. NSA analysts can submit a request to obtain these types of more detailed information about specific people.
Watching a specific person like this is called “targeting” by the Foreign Intelligence Surveillance Act, the law which authorizes this type of individual surveillance. The NSA is allowed to record the conversations of non-Americans without a specific warrant for each person monitored, if at least one end of the conversation is outside of the U.S. It is also allowed to record the communications of Americans if they are outside the U.S. and the NSA first gets a warrant for each case. It’s not known exactly how many people the NSA is currently targeting, but according to a leaked report the NSA intercepted content from 37,664 telephone numbers and email addresses from October 2001 to January 2007. Of these, 8% were domestic: 2,612 U.S. phone numbers and 406 U.S. email addresses.
How the NSA actually gets the data depends on the type of information requested. If the analyst wants someone's private emails or social media posts, the NSA must request that specific data from companies such as Google and Facebook. Some technology companies (we don't know which ones) have FBI monitoring equipment installed "on the premises" and the NSA gets the information via the FBI's Data Intercept Technology Unit. The NSA also has the capability to monitor calls made over the Internet (such as Skype calls) and instant messaging chats as they happen.
For information that is already flowing through Internet cables that the NSA is monitoring, or the audio of phone calls, a targeting request instructs automatic systems to watch for the communications of a specific person and save them.
It’s important to note that the NSA probably has information about you even if you aren’t on this target list. If you have previously communicated with someone who has been targeted, then the NSA already has the content of any emails, instant messages, phone calls, etc. you exchanged with the targeted person. Also, your data is likely in bulk records such as phone metadata and Internet traffic recordings. This is what makes these programs “mass surveillance,” as opposed to traditional wiretaps, which are authorized by individual, specific court orders.
What does phone call metadata information reveal, if it doesn’t include the content of the calls?Even without the content of all your conversations and text messages, so-called “metadata” can reveal a tremendous amount about you. If they have your metadata, the NSA would have a record of your entire address book, or at least every person you’ve called in the last several years. They can guess who you are close to by how often you call someone, and when. By correlating the information from multiple people, they can do sophisticated “network analysis” of communities of many different kinds, personal or professional -- or criminal.
Phone company call records reveal where you were at the time that a call was made, because they include the identifier of the radio tower that transmitted the call to you. The government has repeatedly denied that it collects this information, but former NSA employee Thomas Drake said they do. For a sense of just how powerful location data can be, see this visualization following a German politician everywhere he goes for months, based on his cellphone’s location information.
Even without location data, records of who communicated with whom can be used to discover the structure of groups planning terrorism. Starting from a known "target" (see above), analysts typically reconstruct the social network "two or three hops" out, examining all friends-of-friends, or even friends-of-friends-of-friends, in the search for new targets. This means potentially thousands or millions of people might be examined when investigating a single target.
Metadata is a sensitive topic because there is great potential for abuse. While no one has claimed the NSA is doing this, it would be possible to use metadata to algorithmically identify, with some accuracy, members of other types of groups like the Tea Party or Occupy Wall Street, gun owners, undocumented immigrants, etc. An expert in network analysis could start with all of the calls made from the time and place of a protest, and trace the networks of associations out from there.
Phone metadata is also not “anonymous” in any real sense. The NSA already maintains a database of the phone numbers of all Americans for use in determining whether someone is a “U.S. person” (see below), and there are several commercial number-to-name services in any case. Phone records become even more powerful when they are correlated with other types of data, such as social media posts, local police records and credit card purchase information, a process known as intelligence fusion.
Does the NSA need an individualized warrant to listen to my calls or look at my emails?It’s complicated, but not in all cases. Leaked court orders set out the "minimization" procedures that govern what the NSA can do with the domestic information it has intercepted. The NSA is allowed to store this domestic information because of the technical difficulties in separating foreign from domestic communications when large amounts of data are being captured.
Another document shows that individual intelligence analysts make the decision to look at previously collected bulk information. They must document their request, but only need approval from their "shift coordinator." If the analyst later discovers that they are looking at the communications of a U.S. person, they must destroy the data.
However, if the intercepted information is “reasonably believed to contain evidence of a crime” then the NSA is allowed to turn it over to federal law enforcement. Unless there are other (still secret) restrictions on how the NSA can use this data this means the police might end up with your private communications without ever having to get approval from a judge, effectively circumventing the whole notion of probable cause.
This is significant because thousands or millions of people might fall into the extended social network of a single known target, but it is not always possible to determine whether someone is a U.S. person before looking at their data. For example, it’s not usually possible to tell just from someone’s email address, which is why the NSA maintains a database of known U.S. email addresses and phone numbers. Internal documents state that analysts need only “51% confidence” that someone is a non-U.S. person before looking at their data, and if the NSA does not have “specific information” about someone, that person is “presumed to be a non-United States person.”
Also, the NSA is allowed to provide any of its recorded information to the FBI, if the FBI specifically asks for it.
Is all of this legal?Yes, assuming the NSA adheres to the restrictions set out in recently leaked court orders. By definition, the Foreign Intelligence Surveillance Court decides what it is legal for the NSA to do. But this level of domestic surveillance wasn’t always legal, and the NSA's domestic surveillance program has been found to violate legal standards on more than one occasion.
The NSA was gradually granted the authority to collect domestic information on a massive scale through a series of legislative changes and court decisions over the decade following September 11, 2001. See this timeline of loosening laws. The Director of National Intelligence says that authority for PRISM programs comes from section 702 of the Foreign Intelligence Surveillance Act and the Verizon metadata collection order cites section 215 of the Patriot Act. The author of the Patriot Act disagrees that the act justifies the Verizon metadata collection program.
The NSA's broad data collection programs were originally authorized by President Bush on October 4, 2001. The program operated that way for several years, but in March 2004 a Justice Department review declared the bulk Internet metadata program was illegal. President Bush signed an order re-authorizing it anyway. In response, several top Justice Department officials threatened to resign, including acting Attorney General James Comey and FBI director Robert Mueller. Bush backed down, and the Internet metadata program was suspended for several months. By 2007, all aspects of the program were re-authorized by court orders from the Foreign Intelligence Surveillance Court.
In 2009, the Justice Department acknowledged that the NSA had collected emails and phone calls of Americans in a way that exceeded legal limitations.
In October 2011, the Foreign Intelligence Surveillance Court ruled that the NSA violated the Fourth Amendment at least once. The Justice Department has said that this ruling must remain secret, but we know it concerned some aspect of the "minimization" rules the govern what the NSA can do with domestic communications. The Foreign Intelligence Surveillance Court recently decided that this ruling can be released, but Justice Department has not yet done so.
Civil liberties groups including the EFF and the ACLU dispute the constitutionality of these programs and have filed lawsuits to challenge them.
How long can the NSA keep information on Americans?The NSA can generally keep intercepted domestic communications for up to five years. It can keep them indefinitely under certain circumstances, such as when the communication contains evidence of a crime or when it’s “foreign intelligence information,” a broad legal term that includes anything relevant to “the conduct of the foreign affairs of the United States.”
The NSA can also keep encrypted communications indefinitely. That includes any information sent to or from a secure web site, that is, a site with a URL starting with "https".
Does the NSA do anything to protect Americans’ privacy?Yes. First, the NSA is only allowed to intercept communications if at least one end of the conversation is outside of the U.S. -- though it doesn't have to distinguish domestic from foreign communication until the "earliest practicable point" which allows the NSA to record bulk information from Internet cables and sort it out later. When the NSA discovers that previously intercepted information belongs to an American, it must usually destroy that information. Because this determination cannot always be made by computer, this sometimes happens only after a human analyst has already looked at it.
The NSA also must apply certain safeguards. For example, the NSA must withhold the names of U.S. persons who are not relevant to ongoing investigations when they distribute information -- unless that person’s communications contain evidence of a crime or are relevant to a range of national security and foreign intelligence concerns.
Also, analysts must document why they believe someone is outside of the U.S. when they ask for addition information to be collected on that person. An unknown number of these cases are audited internally. If the NSA makes a mistake and discovers that it has targeted someone inside the U.S., it has five days to submit a report to the Department of Justice and other authorities.
What if I’m not an American?All bets are off. There do not appear to be any legal restrictions on what the NSA can do with the communications of non-U.S. persons. Since a substantial fraction of the world’s Internet data passes through the United States, or its allies, the U.S. has the ability to observe and record the communications of much of the world’s population. The European Union has already complained to the U.S. Attorney General.
The U.S. is hardly the only country doing mass surveillance, though its program is very large. GCHQ, which is the British counterpart to the NSA, has a similar surveillance program and shares data with the NSA. Many countries now have some sort of mass Internet surveillance now in place. Although passive surveillance is often hard to detect, more aggressive governments use intercepted information to intimidate or control their citizens, including Syria, Iran, Egypt, Bahrain and China. Much of the required equipment is sold to these governments by American companies.
Law to Clean Up ‘Nuisances’ Costs Innocent People Their Homes
When Rochelle Bing bought her modest row home on a tattered block in North Philadelphia 10 years ago, she saw it as an investment in the future for her extended family — especially for her 18 grandchildren.
Bing, 42, works full-time as a home health assistant for the elderly and disabled. In summer when school is out, her house is awash with grandkids whom Bing tends to while their parents work. And the home has been a haven in troubled times when her children needed help or a father went to jail. One of Bing’s grandchildren lives there now.
“That’s the only reason I bought my home — I needed stability for my children,” Bing said. “And if anything was to happen to me, they would have a home to live in.”
But four years ago, something happened that imperiled Bing’s plans. In October 2009, police raided the house and charged her son, Andrew, then 24, with selling 8 packets of crack cocaine to an undercover informant. (Upon entering the house, police reported finding unused packets, though not drugs, in a rear bedroom.) Rochelle Bing was not present and was not accused of a crime. Yet she soon received a frightening letter from the Philadelphia district attorney’s office. Because Andrew had sold the drugs from inside his mother’s house, a task force of law enforcement officials moved to seize Bing’s house. They filed a court claim, quickly approved, that gave Bing just 30 days to dissuade a judge from granting “a decree of forfeiture” that would give the DA’s office title to the property. Bing was devastated.
“For me to lose my home,” she recalled recently, “for them to take that from me, knowing I had grandchildren - that would have hurt me more than anything.” And so Bing resolved to do what whatever was necessary to keep the house.
She had no idea how long and how difficult that fight would be.
On its face, Bing’s predicament might seem implausible if not unjust. How could someone who’s neither accused nor convicted of a crime be forced to give up her property because of another’s misdeeds? But stories like Bing’s are increasingly more common as Philadelphia and other jurisdictions have embraced the expansive power of forfeiture as a crime-fighting tool.
The idea behind forfeiture is simple enough: drug kingpins, embezzlers, racketeers and other offenders should not be able to keep the financial fruits of illegal acts. Prosecutors often ask a judge to seize the money, vehicles or real estate of a person convicted of a crime.
But authorities can also use civil law to seize assets before the criminal case is adjudicated or, as with Rochelle Bing, even when no charges are brought against the owner.
Doing so offers prosecutors considerable advantages. Unlike the “proof beyond a reasonable doubt” required in criminal law, prosecutors seeking civil forfeitures face a much lower standard. Usually, they need only prove that a “preponderance of evidence” connects the property — not its owner — to a crime. Technically, the property — not the owner — is named as the defendant.
Bing’s name, in fact, appears nowhere in the case involving her own home, listed in court filings as “Commonwealth of Pennsylvania v. The Real Property and Improvements Known as 2544 N. Colorado St.”
Over the last two decades, forfeitures have evolved into a booming business for police agencies across the country, from the federal Drug Enforcement Administration to small-town sheriff’s offices. Although there is no single tally of all this activity – the information is buried in the budgets, court records and annual reports of thousands of individual agencies — the available data makes clear that billions of dollars in cash, cars, real estate and other assets are being confiscated nationwide every year via civil forfeitures.
One measure is the growth of a program in which federal law enforcement officials seize property on behalf of local authorities in exchange for a share of the proceeds. In 2000, officials racked up $500 million in forfeitures. By 2012, that amount rose to $4.2 billion, an eightfold increase.
Bing is among a significant number of property owners not charged with any crime who lost their home or have battled for years against forfeiture actions. Other similar cases reviewed by ProPublica include an elderly widow, two sisters who shared a house, a waitress and hospital worker caring for two children, and a mother of three whose family wound up homeless. All stemmed from drug charges brought against a family member.
Critics argue that the power to pursue civil forfeiture has been abused by prosecutors and is creating a new class of collateral victims. Often they are minorities like Bing without the financial resources or legal know-how to protect their assets.
And prosecutors typically prevail. Of nearly 2,000 cases filed against Philadelphia houses from 2008 through 2012, records reviewed by ProPublica show that only 30 ended with a judge rejecting the attempt to seize the property.
“On the federal level, you tend to see bigger cases get attention — kingpins and that sort of thing — which is what Congress intended with forfeiture,” says Louis Rulli, a law professor at the University of Pennsylvania and director of its civil legal clinic, which does some pro bono work for homeowners facing forfeiture.
“But coming after the parents and the grandparents, who have nothing to do with it?” he says. “The logic does not hold up to me. The folks we’re talking about have usually owned their homes a long time. They’re paid up on their homes; they’re good residents of Philadelphia.”
Rulli worries, too, about the effect on poor and minority residents. “If one sits in court and watches,” he says, “you will see a disproportionate impact on African Americans and Latinos.”
Philadelphia Freedom?The Philadelphia DA’s office defends forfeiture as a tool for the public good. In the case of forfeited houses, that means protecting neighborhoods from “nuisance properties” which serve as a base for illegal activities.
In a statement, the DA’s office said that its goal in forfeiture actions was “to establish responsible property ownership,” not to seize houses. “In those cases in which the legal owner was not the party arrested for drug dealing and he or she can establish that they had no knowledge of the illegal behavior,” the statement said, “the Commonwealth works with them to settle those cases and the property is not forfeited.”
But that’s not how the law looked to Bing and others who’ve spent years battling the city in court.
Records show that Philadelphia uses forfeiture on a scale and in a way unlike any other county in Pennsylvania. Since 2008, the next three largest counties in Pennsylvania – Allegheny, Montgomery and Berks – have taken fewer than a dozen houses combined, even though they operate under the same state drug laws enabling forfeiture.
By contrast, the Philadelphia DA’s office files forfeiture motions on 300 to 500 private residences annually. It seizes and sells as many as 100 or more properties each year, bringing in more than $1 million annually in real estate sales alone. In 2010, the year the DA went after Bing's house, it acquired 90 houses via forfeiture and auctioned 119 properties for $1.2 million.
The money went directly to the DA’s office and to the Philadelphia police department, including the narcotics units involved in raids that resulted in the forfeitures.
Forfeiture reports obtained from Pennsylvania’s Attorney General give only a general breakdown of how these funds are spent. The records show that the bulk of Philadelphia’s forfeiture money goes to “salaries” (the report does not say whose), and “municipal task force support.” The reports include a line-item for money spent on “Community Based Drug & Crime Fighting Programs” and “Witness Relocation and/or Protection Expenses.” In recent years, both of those items read “$0.00.”
Money from housing sales in 2010 represented about a fifth of all the DA’s $5.9 million in forfeiture income that year. The rest was generated by seizure of cash, cars and other property. Last fall, a story by this reporter in The Philadelphia City Paper disclosed that the DA’s office moves to seize virtually every dollar in cash found by police in stops — even amounts of $100 or less. Under the law, prosecutors need not secure a conviction in the underlying criminal case to keep the cash.
The money raised through forfeiture is handled outside the city’s budgeting and appropriations processes. The law requires only that it be used to enforce Pennsylvania’s drug laws. Critics and experts who study the issue say that gives prosecutors a powerful motive to step up the pace of forfeitures.
“The idea that law enforcement can raise money on its own, through this self-help practice of forfeiture — it’s subversive to the idea of democratic accountability and rule of law,” said Eric Blumenson, a research professor of law at Suffolk University.
Blumenson has criticized the reliance on forfeiture, saying it prompts law enforcement officials to over-emphasize drug prosecutions at the expense of other crime-fighting.
“Prosecutors and police are only too happy to use forfeiture, because it fills their coffers. And why would they stop? They’ve become dependent — you can look at it as an addiction by itself,” Blumenson said.
Prosecutors and police view the issue differently. In an interview last year, officials from the Philadelphia DA’s office last defended the practice as a means of improving civic life.
“Everything is approached from a public safety perspective,” said Beth Grossman, who heads the forfeiture unit. “You have people suffering on their blocks, where their homes are, because of drug-dealing properties. And it’s not fair.”
A Lack of LawyersEvery weekday, Courtroom 478 in Philadelphia’s City Hall fills with people — most are poor, black and Latino — trying to get back seized property. An administrative judge presides, interacting entirely with assistant district attorneys, who effectively run the show. Some property owners are represented by a lawyer; most are not. Many have been there before, often a dozen or more times, only to have their cases rescheduled over and over. Some have spent years in legal limbo until the case is decided, even longer on appeal.
According to multiple accounts, Tracy Clements was sitting on the sofa on the first floor of her North Philadelphia row house on April 21, 2010, when her brother, William Clements burst in followed by police in hot pursuit. William Clements was arrested and convicted seven months later on drug-related charges.
Neither Tracy, 49, who worked on an assembly line and cared for a son in the house, nor her sister, Sheila, 56, who worked for the IRS and was out of town visiting a daughter at Penn State, were charged with a crime. The two had inherited the house from their mother when she died in 2008. They had played there as children. When their brother William was released from prison, according to their attorney, Jonathan Freedman, they refused to let him live there again.
In the meantime, they were served a notice of forfeiture from the DA’s office. “We had to appear 17 times in court,” their attorney, Jonathan Freedman, said in an email. “Had I charged the clients a merely reasonable fee it would have cost them more than the house is worth!”
The sisters ultimately had their day before a judge. The Hon. Rayford Means, Jr., denied the DA’s motion, saying, “They’re innocent owners. They knew nothing about the drugs, had nothing to do with the transaction.”
The DA disagrees, and has appealed, arguing that at least one of the sisters, Tracy, was home during the drug transactions on the porch, and must have known they were occurring. Prosecutors argue that she turned a blind eye to the crimes. The DA cited policy testimony indicating that a mirror with cocaine residue was found in her bedroom, though Tracy Clements testified in court that she knew nothing about the mirror and that it hadn’t been in her room when she left for work that day.
The Clements sisters, at least, had professional legal representation; many facing forfeiture do not.
Unable to afford an attorney, Takeela Burney chose to fight the forfeiture of her house alone after her son was arrested on May 6, 2010, for a single sale of $20 worth of cocaine from the house.
Over the course of the next two years, Burney would appear several times in court in an effort to save her house.
Because many real estate forfeiture cases are resolved through deals with prosecutors, most of the homeowners contesting their forfeiture cases never appear before a judge.
Burney, however, eventually appeared as her own lawyer before Judge Paula Patrick, on May 13, 2012. When a prosecutor called a Philadelphia police officer as a witness, Burney didn’t seem to know what to do. Rather than cross-examine the officer, she attempted to explain her side of the story to Judge Patrick, court records show.
Patrick said “that it was not her turn to tell her story,” according to an appellate court’s summary of the case. When asked if she had any questions for the officer, she answered, “Not at this time,” as if she’d have another chance to challenge the testimony. Judge Patrick granted the DA’s motion for forfeiture.
At the very last moment, Burney contacted the Philadelphia Volunteers for the Indigent Program, a legal aid group which agreed to take on her case. Burney’s attorney, Matthew Lee, filed a brief arguing that his client had never been informed of her right to a jury trial and that a lawyer should have been appointed for her.
An appeals court blocked the forfeiture, ruling that Burney deserved to know of her right to a jury trial. The judges did not address the question of whether Burney was entitled to a court-appointed lawyer.
Writing for the majority, Judge Renee Cohn Jubelirer said: “We understand the importance of denying criminals the proceeds of their crimes and the need to make our communities safer.”
“However, it is also our obligation to assure that these laudable goals are achieved within constitutional boundaries. These boundaries become more apparent where there is no alleged criminal conduct of the homeowner.”
Practice of Forfeiture is WidespreadPhiladelphia is hardly alone in its aggressive pursuit of forfeiture.
In Washington, D.C., the City Council recently held hearings on a bill that would impose new limits on cases arising from cars linked to crimes. For years, the Metropolitan Police Department has seized cars by the hundreds and required owners to post “bonds” if they wanted to contest that action.
Last May the D.C. Public Defenders Service filed a class-action lawsuit against the city, asserting that the practice violates the U.S. Constitution's Fifth Amendment’s guarantees of due process. They argued that car owners who can’t afford to put up money are deprived of their property without any judicial review.
The D.C. City Council is considering change in the law, including putting the money from forfeitures into the city’s general fund rather than law enforcement budgets. (The Attorney General for the District of Columbia opposes this bill, as does the city administration).
Darpana Sheth, an attorney for the libertarian-leaning nonprofit Institute for Justice who testified at a recent hearing alongside the D.C. Public Defender Service, endorses that idea. “Having the people charged with enforcing the law seizing property and benefiting from that property is unconstitutional – specifically, the concept of ‘neutrality’ in due process,” she said. “They can’t be neutral if they have a financial stake.”
Last year, police officials in Tenaha, Texas, agreed to various monitoring and reporting conditions after being sued by the American Civil Liberties Union for stopping drivers, mostly minorities, and seizing their cash and other property. Tenaha police often did not charge the motorists with any crime but threatened them with arrest if they didn’t agree to forfeit their possessions, according to the lawsuit. In settling the case, Tenaha officials denied that the traffic stops were unconstitutional.
The Teneha case drew national attention – briefly, at least – to the larger issue of forfeiture. But the revelations underscored how little is known about forfeiture practices nationwide.
“The problem is when police departments are able to seize assets in hundreds of thousands of dollars – they’re going to,” said Vanita Gupta, an attorney with the ACLU. “I worry with the Tenaha case that people will think, ‘Oh that’s just Tenaha.’”
“Every police department in Texas is pocketing money from forfeiture,” she said.
(Gupta has a point. Data compiled by the Institute for Justice, which has been a vocal critic of forfeiture, shows that 759 law enforcement agencies in Texas alone reported proceeds from forfeiture in 2008, the most recent year that data was available.)
The Search for a Fairer SystemSpurred by similar reports of the abuse in the late 1990s, former Rep. Henry Hyde, R-Ill., held a series of hearings on forfeiture, prompting the passage of the Civil Asset Forfeiture Reform Act of 2000.
The law addressed several key shortcomings in federal forfeitures, providing “innocent owners” with a defense against being punished for the crimes of a relative or friend. It also provided for the appointment of an attorney when a homeowner faced the loss of his or her primary residence and was too poor to afford legal help.
Those reforms did not extend to the local level, where forfeiture is often governed by state laws.
In 2010, the Institute for Justice released a report entitled “Policing for Profit,” which represented one of the first attempts to catalogue each state’s laws regarding forfeiture. It found that most offered minimal protections to property owners.
North Dakota, for example, is among the few states that impose limited restrictions on the practice, prohibiting forfeiture of a home co-owned by someone not accused of a crime.
Critics have been pushing local legislators to enact additional rules.
Forfeitures in cities like Philadelphia and Washington, D.C., are conducted through civil laws. One way to eliminate the inequities of that system would be to conduct property seizures only through parallel laws in the criminal code.
Such laws come into play only after an accused criminal has had his or her day in court. The ACLU’s Gupta said this would rule out one of the more unfair results of the civil cases, which is that people are arrested, lose their property and are then ultimately acquitted on the criminal charges.
“There are a few jurisdictions where they use criminal, not civil forfeiture – meaning they’ll still seize assets, but once someone is convicted,” Gupta pointed out. “It begs the question, why do we use civil forfeiture at all?”
The courts of Allegheny County, Pa., have answered that question, requiring local judges to pursue property seizures in most cases through the state’s criminal statute and then only after the person involved in the case is convicted. That practice began under the late Judge Robert Dauer, president judge in the county’s trial courts, and continues to this day. In 2009-2010, the county did not seize a single house.
“Our policy was we had to have a conviction and it had to make some reasonable sense why we were going after forfeiture,” recalls Pennsylvania Superior Court Robert Coville, who headed up the Allegheny County District Attorney’s office for 21 years.
Coville says that as DA he supported using criminal, not civil, forfeiture as a matter of principle.
“It’s based on fairness,” he says. “I would be very restrained as a prosecutor or a solicitor for the city, going in on the theory of an allegation or the presumption of something we don’t have – namely, a criminal conviction against the owner for some kind of illegal conduct.”
Coville declined to comment on the specifics of this story, as legal issues around forfeiture very well may come before him in his role as an appellate judge. But speaking from his experience as a former county prosecutor, he said he is troubled by the idea of supplementing police and prosecutor budgets with money from forfeitures.
“I can understand why someone would want to do that in this day and age,” he said. But “is there an incentive for police and prosecutors to go after property only for the value? That gets into a whole other bag of issues.”
Other legal experts see the right to representation – especially in cases involving something as important as a home -- as the single best way to curb injustices.
“The main defenses to civil forfeiture are called ‘affirmative defenses’ – you must raise them or you waive them,” says University of Pennsylvania professor Rulli. “I think lack of counsel is a big deal. Do these people know their rights? Are they learning it from the DA? What is the DA saying to people? Is DA saying you have a right to assert innocent owner?”
Matthew Lee, the lawyer for Takeela Burney, said the recent ruling that his client was entitled to be informed of her right to a jury trial was a step in the right direction. “I was hoping that they would say you have a right to a lawyer,” Lee said, “but what they did ultimately hold is that these cases are really more like criminal cases than civil cases and that a lot of the constitutional protections in criminal cases should apply.”
Rochelle Bing’s case illustrates the value of legal counsel. Like Burney, Bing couldn't afford a lawyer herself. She eventually was referred to the University of Pennsylvania Legal Clinic where law students took on her case without charge.
Bing’s fight to save her home dragged on for two years and required her or her attorney to appear in court no fewer than 23 times. Finally, prosecutors settled the case, allowing Bing to retain ownership if she agreed not to let her son visit when she wasn’t home. (Her son, who negotiated a guilty plea to one count of possession with intent to distribute, had already finished serving his sentence he received.)
Bing said she would have agreed to that condition at the outset.
Isaiah Thompson can be reached at isaiah.thompson@gmail.com and @isaiah_thompson.
Nation Institute to Pay Interns Minimum Wage
This story has been updated.
Starting in the fall of 2013, interns at the Nation Institute will be paid minimum wage for the first time in the history of the 30-year-old program — a decision that was spurred on by none other than the organization’s own interns.
“We want internships to provide workers a living wage for an honest day’s work,” former Nation intern Alleen Brown told ProPublica. “Our experiences may be very different from workers in a fast food restaurant, for example, but we share a common goal: we just want a dignified life.”
Brown was part of a group of 12 interns that published a letter to the editor in the latest issue of The Nation, presenting a case for higher pay. At that point, Nation interns worked full-time for a $150 weekly stipend, “an impossible prospect for many who are underrepresented in today’s media,” the interns wrote.
Nation Institute director Taya Kitman responded in the same issue, saying the Institute “appreciate[d] this thoughtful letter” and “has determined to increase their stipend beginning with the fall 2013 class.”
Yesterday, the Nation Institute confirmed in a tweet that it would begin paying interns the minimum wage in the fall of 2013 — a rate that the Nation’s own business writer has said is “not enough to make rent in any state.”
According to Kitman’s letter, the Nation Institute will also “continue to provide financial aid in the form of travel and housing grants to interns.”
“We see this as the beginning, not the end, of this conversation,” said Kitman in a statement, which also noted that the effort to increase intern pay began in the fall of 2012. “We hope that in the future we will be able to raise additional money, allowing us to pay our interns more.”
Brown, who is now a freelancer in Minnesota, said she hoped the Nation internship would help her parlay her journalism degree into full-time work in media. She said she survived on the stipend, savings from service industry work and credit.
“The stipend probably paid for food for a week, and then I used credit to pay rent,” Brown said. “Now the card is not quite maxed out, but I accrued a lot of debt.”
Brown said she was very pleased with her Nation internship, and the internship director’s support. But she’s still searching for full-time work.
“I was optimistic, but conscious of the fact that I’d probably have to come back to Minneapolis for a while and recuperate,” Brown said. “I like to go with the lifeline angle. I used my lifeline, and now to go back to New York, I need to get a new one. I need to save up some money.”
The Nation’s Spring 2013 interns hope other interns in publishing and other industries are encouraged to stand up for their own right to fair pay, according to Brown. They’ve launched a website with their letter, the Nation’s response and a space for other interns to share their stories.
We have reached out to Kitman for more details on the Nation’s new internship policy, and will update this post as soon as we get them.
Update: August 2, 2013, 5:25 PM: Kitman has gotten back to us. In response to our question on whether higher pay means there will be fewer interns in Fall 2013, she says:
We are using the renaming of the internship program as an opportunity to restructure. Rather than having web interns and print interns, as we do now, we're merging those positions. Nation interns will research and fact-check for the magazine, in addition to assisting with daily web projects on TheNation.com. Not only will this provide interns with a more diverse range of skills, we believe this reflects the increasingly integrated nature of print and web journalism, in general and in The Nation's newsroom. We are not yet certain how this will work out longterm but for the fall we are anticipating hiring ten interns rather than twelve. If we need more interns, we will revisit for the spring and hire accordingly.
Kitman also clarified that the financial aid to interns has been coming in the form of six to eight grants per year. Each grant averages five hundred dollars, and is need-based.
Update Aug. 16: Kitman says the Nation will indeed be hiring 11 interns in the fall, up from the 10 originally reported.
Do you have an internship story to tell? ProPublica is also collecting stories from current and former interns, those who couldn’t afford unpaid internships, as well as employers and internship coordinators.
The Payday Playbook: How High Cost Lenders Fight to Stay Legal
A version of this story was co-published with the St. Louis Post-Dispatch.
As the Rev. Susan McCann stood outside a public library in Springfield, Mo., last year, she did her best to persuade passers-by to sign an initiative to ban high-cost payday loans. But it was difficult to keep her composure, she remembers. A man was shouting in her face.
He and several others had been paid to try to prevent people from signing. "Every time I tried to speak to somebody," she recalls, "they would scream, ‘Liar! Liar! Liar! Don’t listen to her!’"
Such confrontations, repeated across the state, exposed something that rarely comes into view so vividly: the high-cost lending industry’s ferocious effort to stay legal and stay in business.
Outrage over payday loans, which trap millions of Americans in debt and are the best-known type of high-cost loans, has led to dozens of state laws aimed at stamping out abuses. But the industry has proved extremely resilient. In at least 39 states, lenders offering payday or other loans still charge annual rates of 100 percent or more. Sometimes, rates exceed 1,000 percent.
Last year, activists in Missouri launched a ballot initiative to cap the rate for loans at 36 percent. The story of the ensuing fight illuminates the industry’s tactics, which included lobbying state legislators and contributing lavishly to their campaigns; a vigorous and, opponents charge, underhanded campaign to derail the ballot initiative; and a sophisticated and well-funded outreach effort designed to convince African-Americans to support high-cost lending.
Industry representatives say they are compelled to oppose initiatives like the one in Missouri. Such efforts, they say, would deny consumers what may be their best or even only option for a loan.
Quick Cash and Kwik KashMissouri is fertile soil for high-cost lenders. Together, payday, installment and auto-title lenders have more than 1,400 locations in the state — about one store for every 4,100 Missourians. The average two-week payday loan, which is secured by the borrower’s next paycheck, carries an annual percentage rate of 455 percent in Missouri. That’s more than 100 percentage points higher than the national average, according to a recent survey by the Consumer Financial Protection Bureau. The annual percentage rate, or APR, accounts for both interest and fees.
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$('.loan').html("$" + borrowed); if (period == 0 || borrowed == 0){ $('#fees').html("---"); $('#apr').html("---"); $('#fees-cc').html("---"); } else { $('#fees').html("$" + (finalFee).toFixed(0)); $('#apr').html(apr.toFixed(1) + "%"); $('#fees-cc').html("$" + finalInterest.toFixed(0)); } } function setResults(b, f, p, r){ borrowed = b; fees = f; period = p; renewal = r; calculateResults(borrowed, fees, period, renewal); $( "#borrowed" ).slider('value', b); $("#b-amt").html( "$" + b ); $( "#fees-slider" ).slider('value', f); $("#f-amt").html( "$" + f ); $( "#period" ).slider('value', p); $("#p-amt").html( p + " days" ); $( "#renewal" ).slider('value', r); $("#r-amt").html( r ); } $('.missouri').click(function(){ setResults(306.12, 53.38, 14, 0); }) $('.national').click(function(){ setResults(392, 66.63, 18.3, 0); }) // $('#borrowed').append(''); // $('#fees-slider').append(''); // $('#period').append(''); // $('#renewal').append(''); }); The Cost of Payday Loans Borrowed Amount: $100 Fee Charged: $15 Loan Period: 14 days Loan Has Been Renewed: 2 timesResult:
To borrow $100 today, you will ultimately owe:
in total 500%
annual percentage rate
Note: The annual percentage rate accounts for both interest and fees. Sources: Consumer Financial Protection Bureau, Missouri State Department of Finance, CreditCards.com. Graphic by Sisi Wei.
The issue caught the attention of Democrat Mary Still, who won a seat in the state House of Representatives in 2008 and immediately sponsored a bill to limit high-cost loans. She had reason for optimism: The new governor, Jay Nixon, a Democrat, supported reform.
The problem was the legislature. During the 2010 election cycle alone, payday lenders contributed $371,000 to lawmakers and political committees, according to a report by the nonpartisan and nonprofit Public Campaign, which focuses on campaign reform. The lenders hired high-profile lobbyists, and Still became accustomed to their visits. But they hardly needed to worry about the House Financial Institutions Committee, through which a reform bill would need to pass. One of the lawmakers leading the committee, Don Wells, owned a payday loan store, Kwik Kash. He could not be reached for comment.
Eventually, after two years of frustration, Still and others were ready to try another route. "Absolutely, it was going to have to take a vote of the people," she said. "The legislature had been bought and paid for."
A coalition of faith groups, community organizations and labor unions decided to put forward the ballot initiative to cap rates at 36 percent. The main hurdle was collecting the required total of a little more than 95,000 signatures. If the initiative’s supporters could do that, they felt confident the lending initiative would pass.
But even before the signature drive began, the lending industry girded for battle.
In the summer of 2011, a new organization, Missourians for Equal Credit Opportunity (MECO), appeared. Although it was devoted to defeating the payday measure, the group kept its backers secret. The sole donor was another organization, Missourians for Responsible Government, headed by a conservative consultant, Patrick Tuohey. Because Missourians for Responsible Government is organized under the 501(c)(4) section of the tax code, it does not have to report its donors. Tuohey did not respond to requests for comment.
Still, there are strong clues about the source of the $2.8 million Missourians for Responsible Government delivered to MECO over the course of the battle.
Payday lender QC Holdings declared in a 2012 filing that it had spent "substantial amounts" to defeat the Missouri initiative. QC, which mostly does business as Quik Cash (not to be confused with Kwik Kash), has 101 outlets in Missouri. In 2012, one-third of the company’s profits came from the state, twice as much as from California, its second-most profitable state. If the initiative got to voters, the company was afraid of the outcome: "ballot initiatives are more susceptible to emotion" than lawmakers’ deliberations, it said in an annual filing. And if the initiative passed, it would be catastrophic, likely forcing the company to default on its loans and halt dividend payments on its common stock, the company declared.
In late 2012, QC and other major payday lenders, including Cash America and Check into Cash, contributed $88,000 to a group called Freedom PAC. MECO and Freedom PAC shared the same treasurer and received funds from the same 501(c)(4). Freedom PAC spent $79,000 on ads against Still in her 2012 losing bid for a state senate seat, state records show.
MECO’s first major step was to back three lawsuits against the ballot initiative. If any one of the suits were successful, the initiative would be kept off the ballot regardless of how many citizens had signed petitions in support.
Threatening letters and decoy initiativesMeanwhile, supporters of the ballot initiative focused on amassing volunteers to gather signatures. The push started with umbrella organizations such as Metropolitan Congregations United of St. Louis, which ultimately drafted more than 50 congregations to the effort, said the Rev. David Gerth, the group’s executive director. In the Kansas City area, more than 80 churches and organizations joined up, according to the local nonprofit Communities Creating Opportunity.
The Rev. Joseph Forbes of Kansas City watches while a man signs an initiative to cap interest rates on payday loans. (Jonathan Bell)
Predominantly African-American congregations in Kansas City and St. Louis made up a major part of the coalition, but the issue crossed racial lines and extended into suburbs and small towns. Within one mile of Grace Episcopal Church in Liberty, a mostly white suburb of Kansas City, there are eight high-cost lenders. "We think it’s a significant problem and that it was important for people of faith to respond to this issue," said McCann, who leads the church.
Volunteers collected signatures at Catholic fish fries during Lent and a community-wide Holy Week celebration. They went door to door and stood on street corners.
In early January 2012, a number of clergy opened their mail to find a "Legal Notice" from a Texas law firm and sent on MECO’s behalf. "It has come to our attention that you, your church, or members of your church may be gathering signatures or otherwise promising to take directions from the proponents’ political operatives, who tell churchgoers that their political plan is a ‘Covenant for Faith and Families,’" said the letter.
"Please be advised that strict statutes carrying criminal penalties apply to the collection of signatures for an initiative petition," it said in bold type. Another sentence warned that churches could lose their tax-exempt status by venturing into politics. The letter concluded by saying MECO would be watching for violations and would "promptly report" any.
Soon after the Rev. Wallace Hartsfield of Metropolitan Missionary Baptist Church in Kansas City received the letter, a lawyer called. Had he received the letter? Hartsfield remembers being asked. He responded, "If you feel like we’re doing something illegal, you need to try to sue, all right?" he recalls. Ultimately, no suits or other actions appear to have been filed against any faith groups involved in the initiative fight.
MECO did not respond to requests for comment. The law firm behind the letter, Anthony & Middlebrook of Grapevine, Texas, referred comment to the lawyer who had handled the matter, who has left the firm. He did not respond to requests for comment.
Payday lenders and their allies took other steps as well. A Republican lobbyist submitted what appears to have been a decoy initiative to the Missouri Secretary of State that, to the casual reader, closely resembled the original measure to cap loans at 36 percent. It proposed to cap loans at 14 percent, but stated that the limit would be void if the borrower signed a contract to pay a higher rate — in other words, it wouldn’t change anything. A second initiative submitted by the same lobbyist, Jewell Patek, would have made any measure to cap loan interest rates unlawful. Patek declined to comment.
MECO spent at least $800,000 pushing the rival initiatives with its own crew of signature gatherers, according to the group’s state filings. It was an effective tactic, said Gerth, of the St. Louis congregations group. People became confused about which was the "real" petition or assumed they had signed the 36 percent cap petition when they had not, he and others who worked on the effort said.
MECO’s efforts sowed confusion in other ways. In April 2012, a local court sided with MECO in one of its lawsuits against the initiative, throwing the ballot proposition into serious jeopardy for several months until the state Supreme Court overturned the lower court’s ruling. During those months, according to video shot by the rate cap’s supporters, MECO’s employees out on the streets warned voters who were considering signing the petition that it had been deemed "illegal."
MECO's television ad warned about "Washington, DC special interests invading our neighborhoods."
MECO also took to the airways. "Here they come again," intones the narrator during a television ad that ran in Springfield, "Washington, DC special interests invading our neighborhoods." Dark figures in suits and sunglasses can be seen descending from a plane. "An army of outsiders approaching us at our stores and in our streets," says the voice. "But together we can stop them: If someone asks you to sign a voter petition, just decline to sign."
Although the ad discloses that it was paid for by MECO, it does not mention payday lending or capping interest rates.
Installment lenders join the frayInstallment lenders launched a separate group, Stand Up Missouri, to fight the rate-cap initiative — and to differentiate themselves from payday lenders.
As the group’s website put it, "special interest groups masquerading as grass-roots, faith-based alliances" were not only targeting payday loans but also "safe" forms of credit such as installment loans. "Stand Up Missouri does not represent payday lending or payday interests," the group said in its press releases.
Unlike payday loans, which are typically due in full after two weeks, installment loans are paid down over time. And while many payday lenders also offer such loans, they usually charge higher annual rates (from about 300 to 800 percent). The highest annual rate charged by World Finance, among the largest installment lenders in the country and the biggest backer of Stand Up Missouri, is 204 percent, according to its last annual filing.
Still, like payday lenders, installment lenders such as World profit by keeping borrowers in a cycle of debt. Installment and payday lenders are also similar in the customers they target. In neighboring Illinois, 56 percent of payday borrowers and 72 percent of installment loan borrowers in 2012 had incomes of $30,000 or less, according to state data.
World was the subject of an investigation by ProPublica and Marketplace in May. The company has 76 locations in Missouri: Of all high-cost lenders, only payday lenders QC and Advance America have more locations in the state.
Members of Stand Up Missouri gather at the Missouri State Capitol to protest a ballot initiative that would cap the rates charged on payday and similar loans. (Progress Missouri)
Stand Up Missouri raised $443,000 from installment lenders and associated businesses to oppose the rate-cap ballot initiative, according to state filings.
To broadcast their message in Missouri, the installment lenders arranged a letter-writing campaign to local newspapers, placed ads, distributed video testimonials by satisfied customers, and held a rally at the capitol. Like MECO, Stand Up Missouri also filed suit with their own team of lawyers to block the initiative.
Tom Hudgins, the chairman of Stand Up Missouri as well as the president and chief operating officer of installment lender Western Shamrock, declined to be interviewed but responded to questions with an emailed statement. Stand Up Missouri acknowledges that "some financial sectors" may require reform, he wrote, but the initiative backers didn’t want to work with lenders.
"Due to their intense lack of interest in cooperatively developing market-based reforms, we have and will continue to meet with Missourians in all corners of the state to discuss the financial market and opportunities to reform the same."
"Put a good face on this"In February 2012, the Rev. Starsky Wilson of St. Louis sat down at a table in the Four Seasons Hotel. The floor-to-ceiling windows reveal vistas of the city’s famous arch and skyline. Lined up in front of him were two lobbyists and Hudgins, he remembers.
The lenders had targeted a community that was both important to their profits and crucial to the petition drive: African-Americans. Wilson, like the majority of his flock, is black.
So were the two lobbyists. Kelvin Simmons had just a few weeks before been in charge of the state budget and was a veteran of Missouri politics. His new employer was the international law firm Dentons, then called SNR Denton, and he was representing his first client, Stand Up Missouri.
Next to Simmons was Rodney Boyd, for the past decade the chief lobbyist for the city of St. Louis. He, too, worked for SNR Denton.
The lobbyists and Hudgins urged Wilson to rethink his commitment to the rate-cap ballot initiative.
Wilson was not swayed, but he was only one target among many. At the Four Seasons, Wilson says, he bumped into two other leaders of community organizations who had been summoned to hear Stand Up Missouri’s message. He said he also knew of more than a dozen African-American clergy who met with the lobbyists. Their message, that installment loans were a vital credit resource for middle-class African-Americans, was persuasive for some. As a result, Wilson found himself mounting a counter-lobbying effort. A spokesperson for Simmons and Boyd’s firm declined to comment.
In Kansas City, Rev. Hartsfield also received an invitation from the lobbyists — but that was not the only case, as Hartsfield puts it, of an African-American being "sent into the community to try to put a good face on this."
Willie Green spent eight seasons as a wide receiver in the NFL and won two Super Bowls with the Denver Broncos. After he retired in 1999, he opened several payday loan stores of his own and went on to hold a series of positions serving as a spokesman for payday lending, especially to minority communities.
Left: Willie Green's current photo on LinkedIn. Green is Vice President of External Affairs & Government Relations at World Finance, an installment lender. Right: Willie Green (86) in 1995, while playing for the Carolina Panthers as a wide receiver. (Nelson Kepley/AP Photo)
While African-Americans comprise 13 percent of the U.S. population, they account for 23 percent of payday loan borrowers, according to a Pew Charitable Trusts survey. Green was "Senior Advisor of Minority Affairs" for the Community Financial Services Association, the payday lenders’ national trade group, then director of "community outreach" for Advance America, one of the largest payday lenders. Finally, in 2012, he opened his own consultancy, The Partnership Alliance Co., which, according to his LinkedIn profile, focused on "community relations." Over the past decade, he has popped up during legislative fights all over the country — North Carolina; Georgia; Washington, D.C.; Arkansas; Colorado.
It is unclear who hired Green in 2012 — he declined to comment, and MECO did not report paying him or his company. But to Hartsfield, it was clear he was there to advocate on behalf of payday lending.
Green once penned an open letter to the Georgia’s legislative black caucus arguing that government regulation on payday loans was unneeded and paternalistic: Opponents of payday lending "believe that people unlike them are just po’ chillin’ who must be parented by those who know better than they do what’s in their best interest," he wrote, according to the Chattanooga Times Free Press.
During their private meeting, Hartsfield said, Green made a similar argument but also discussed church issues unrelated to the ballot initiative. The payday lending industry might be able to help with those, Hartsfield recalled Green saying. The message the minister received from the offer, he said, was "we’ll help you with this over there if you stop this over here."
Green referred all questions to his new employer, the installment lender World Finance. In a statement, World did not address specific questions but said the company was "pleased to have Mr. Green as a member of its team to enhance World’s outreach to the communities that it serves and to provide him the opportunity to continue his many years of being personally involved in and giving back to those communities."
Hartsfield did not take Green up on his offer, but the former athlete has served as a gateway to the industry’s generosity before. In 2009 in Colorado, where payday loan reform was a hot topic (a bill ultimately passed in 2010), Green presented the Urban League of Metro Denver with a $10,000 check on behalf of Advance America. Landri Taylor, president and chief executive of the organization, recalled that Green had approached him with the offer and that he was glad for the support. He also said that lending was not a core issue for his organization and that, even if it were, the contribution couldn’t have bought its allegiance.
In Georgia in 2007, Green, then a registered lobbyist, gave a state lawmaker $80,000 a few weeks before the legislature voted on a bill to legalize payday lending. The lawmaker, who subsequently pleaded guilty to unrelated federal charges of money laundering, was one of 11 Democrats to vote for the bill.
After the Atlanta Journal-Constitution broke news of the transfer, Green produced documents showing that it had been a loan for a real estate investment: The lawmaker had promised to repay the loan plus $40,000, but had never done so, Green said. The state ethics commission subsequently found Green had broken no state laws, because lobbyists are allowed to engage in private business transactions with lawmakers.
The case of the missing petitionsBy the spring of 2012, supporters of the initiative were in high gear. Volunteers, together with some paid employees, were collecting hundreds of signatures each day. They were increasingly confident they would hit their mark.
In some areas, such as Springfield, the work resembled hand-to-hand combat. Through intermediaries, such as ProActive Signature Solutions, the initiative’s opponents hired people to oppose it.
"It was a well-funded effort," said Oscar Houser of ProActive. He declined to say which company had retained ProActive. However, only MECO reported spending funds on what it said were signature gatherers. Those employees, according to Houser, eventually focused solely on trying to prevent people from signing the initiative.
Marla Marantz, a Springfield resident and retired schoolteacher, was hired to gather signatures for the 36 percent cap initiative. Just about every day, she could expect to be joined by at least one, and often several, of ProActive’s employees, she says. Wherever she went — the public library, the DMV — they would soon follow. It was a tactic both she and her adversaries (with whom she became very familiar, if not friendly) called "blocking."
One ProActive employee describes how "blocking" works, in a a video shot by a Missouri State University journalism student. (Posted by Matthew Barnes, Springfield Report)
"What we’re doing is preventing them from being able to get signatures," one ProActive employee says on a video shot by a Missouri State University journalism student. Asked to describe how "blocking" works, the employee says, "Usually, we get a larger group than they have. We pretty much use the power of numbers." In the video, as Marantz stands outside a public building, she is surrounded by three ProActive employees.
ProActive’s employees did not identify themselves to voters as affiliated with payday lending, Marantz says. They sometimes wore T-shirts reading "Volunteer Petition Official" or held signs urging citizens to "Stand up for Equal Opportunity."
Marantz shared various photos and videos of her experiences. In one video, a library employee tells a group of ProActive employees they will be asked to leave if they continue to make patrons uncomfortable. At other times, Marantz says, exasperated public employees or the police simply asked anyone collecting signatures to leave the area.
McCann also gathered signatures for the initiative and experienced "blocking." "I had on my clerical collar, and they seemed to address a lot of their vitriol at me," she remembers.
In May 2012, Missourians for Responsible Lending, the organization formed by supporters of the initiative, filed suit in county court in Springfield, alleging that MECO, through ProActive, was illegally harassing and assaulting its signature gatherers. The suit included sworn declarations by Marantz and three others who had said they had endured similar treatment. It called for a temporary restraining order that would keep MECO’s employees at least 15 feet away.
MECO, via its lawyers, fired back. The suit was an unconstitutional attempt by supporters of the initiative to silence their political opponents based on alleged "sporadic petty offenses," MECO argued. Even if the initiative’s detractors "engaged in profanity-laced insults all of the time," they said, such behavior would still be protected by the First Amendment.
Houser called the suit "frivolous" and said he was happy to let MECO’s lawyers handle it. The suit stalled.
"Blocking" wasn’t the only problem initiative supporters encountered. Matthew Patterson ran a nonprofit, ProVote, that coordinated signature gathering in the Springfield area. On the night of April 25, 2012, Patterson put a box of petitions in his car. Then, realizing he had forgotten his phone in his office, he locked his car and went back inside.
When he returned, his passenger side window was broken and the box of petitions was gone, according to Patterson and the police report he filed. The box had contained about 5,000 voter signatures, about half of which were for the 36 percent cap initiative, Patterson said.
No arrest was ever made. Volunteers from Kansas City and St. Louis converged on the area to recoup the lost signatures. The final deadline to submit signatures to the secretary of state’s office was less than two weeks away.
23,000 over, 270 underIn August, the Missouri Secretary of State announced that supporters of the initiative had submitted more than 118,000 valid signatures, about 23,000 more than needed.
But the state’s rules required that they collect signatures from at least 5 percent of voters in six of the state’s nine congressional districts. They had met that threshold in five districts — but in the First District, which includes North St. Louis, they were 270 signatures short.
A week later, initiative supporters filed a challenge in court, arguing that local election authorities had improperly disqualified far more than 270 signatures. MECO and Stand Up Missouri joined the fray, arguing not only that signatures had been properly excluded, but also that far more should have been tossed out.
Eventually, with only a couple of weeks before the deadline to finalize the November ballot, backers of the initiative decided they could not match the lenders’ ability to check thousands of signatures. They withdrew their challenge.
"It was so frustrating, disappointing," McCann said. "People had spent hours and hours and hours on this initiative."
Looking to 2014The initiative’s supporters now have their eye on 2014, and they have made the necessary preparation by filing the same petition again with the secretary of state.
The industry has also made preparations. MECO has reported adding $331,000 to its war chest since December. Stand Up Missouri has raised another $151,000.
Last May, Jewell Patek, the same Republican lobbyist who filed the industry’s initiatives in 2011, filed a new petition. It caps annual rates at 400 percent.
The installment lenders have continued their effort to woo African-Americans. In December, Stand Up Missouri was a sponsor of a Christmas celebration for Baptist ministers in St. Louis, and in June, it paid for a $20,000 sponsorship of the National Baptist Convention, hosted this year in St. Louis. It’s retained the same high-powered African-American lobbyists and added one more: Cheryl Dozier, a lobbyist who serves as executive director of the Missouri Legislative Black Caucus. Lastly, Willie Green, according to initiative supporters who have spoken with the ministers, has made overtures to African-American clergy on behalf of World Finance.
“Close the Back Door”
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Part 1The Emerald City
Part 2They're Not Treating Mom Well
Part 3A Sinking Ship
Part 4Close the Back Door
DocumentaryWatch the Film
More Back Behind the ScenesHow This Series Was Reported
Emeritus ResponseA Media Strategy to Thwart Federal Oversight
ProfilesThose Lost and Those Left Behind
Part 4
A Media Strategy to Thwart Federal Oversight
Life and Death in Assisted Living, Part 4 “Close the Back Door”
by A.C. THOMPSON, ProPublica and JONATHAN JONES, special to ProPublica, Aug. 1, 2013
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OFFON (What's this?)Inside Room 101 at Emerald Hills, a covert campaign was under way in the fall of 2008. Potentially lethal bed sores were spreading across Joan’s body, and workers were trying to improvise help.
The workers at Emerald Hills lacked both the skills and the legal authority to treat Joan. But they were nonetheless determined to try. Jenny Hitt, a young woman with no medical training who was in charge of handing out medication in the facility, said she and her coworkers rubbed cream into Joan’s wounds, known as pressure ulcers.
“We knew we weren’t supposed to do it,” said Hitt. “We knew we weren’t licensed or medically trained to do it.”
One ulcer began eroding the skin on Joan’s right buttock.
“At first, it was just like a small, round red spot,” Hitt said. Then, she said, the skin started to deteriorate. “The area started to become like a hole.”
Peggy Stevenson, the lone nurse employed by Emerald Hills, told the workers to act secretly, according to Hitt. “She said, ‘Just don’t let anybody know,’” Hitt recalled.
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And so the Boice family was kept in the dark, even her husband, Myron, who lived in another room at the facility; so, too, were the more highly trained nurses who had been sent into the facility to deal with what they had been told was a limited threat: a wound on Joan’s foot.
An ulcer formed on Joan’s right heel. Another on her left heel. The ulcer that had previously erupted on the inside of her right foot opened up again.
Susan Reuther spent a lot of time in Room 101. Her mother was Joan’s roommate.
“They told me, ‘This is the worst — we don’t know what to do,’” Reuther said of the workers. “It would take them maybe an hour, an hour and a half, just to roll her over.”
Officials with Emeritus deny that any such improper care took place. Stevenson, when asked years later about Joan’s care, said she could remember nothing about her treatment, and did not even recall who Joan was.
But records suggest Joan’s situation wasn’t unique. Under California law, seniors with serious bed sores, the kind that require sophisticated and urgent treatment, are not supposed to stay in assisted living facilities. The reasons aren’t hard to understand: Assisted living facilities, dreamed up three decades ago as a less restrictive and institutional alternative to nursing homes, don’t have the trained personnel or resources to treat potentially life-threatening conditions.
Yet regulators have repeatedly cited Emeritus for housing residents with severe bed sores.
At a facility in Whittier, investigators discovered a person with a bacteria-ridden pressure ulcer near the base of the spine so deep it needed surgery. A wound care expert said the ulcer was teeming with “numerous” strains of bacteria, a sign the person had “probably gone a couple of months” without treatment, according to a state report.
Investigators cited a facility in San Diego for housing a resident with advanced sores on the right hip and both feet. One of the ulcers “was also gangrenous,” state records show. The person was “suffering from severe malnutrition” and was besieged by Clostridium difficile, an aggressive brand of bacteria that can be lethal.
A woman at a facility outside Sacramento was killed by an infection linked to five pressure ulcers. The state fined Emeritus, saying the woman should have been moved to a setting more appropriate to her needs.
Joan Boice, after a career teaching school, had spent the early part of her retirement volunteering with children eager to read and write. Her marriage to Myron had lasted decades, and her children had gone on to lives of accomplishment.
But Eric Boice, one of Joan’s two sons, had few illusions about his mother’s long-term future when he had helped move her into Room 101 at Emerald Hills in September 2008. Her dementia, a problem for years, had become more severe; she could not really talk; moving around was difficult.
Eric had worked for more than a decade as a police officer. He could stare at an unpleasant truth.
“We knew that my mom’s disease was progressive,” he recalled. His chief concern, then, was making sure his mom was “treated with the utmost dignity and honor and respect.”
The Boice family had paid handsomely to make sure that happened. In less than three months, the family had paid more than $12,000 to cover Joan’s room, care and meals.
“Retain the Residents as Long as You Can”A May 2008 memo from a senior nurse at Emeritus to two other supervising nurses in California included an agenda for an upcoming strategy meeting:
- Sales
- Occupancy
- Back Door
To those outside of Emeritus, a publicly traded company that has expanded dramatically in recent years, the memo’s third agenda item might have been inscrutable. But within the company, people knew what it meant. Emeritus was intensely focused both on persuading people to move into its buildings and dissuading them from moving out. They did not want paying customers to, as they put it, go out the back door.
Around the company, the subject came up regularly. And the emphasis on the policy aim could be explicit and emphatic.
“KEEP THE BACK DOOR SHUT!” shouted a 2009 email from a nurse named Nicole Jackson, who oversaw Emeritus facilities in Northern California.
In an internal 2010 company newsletter, Emeritus touted the success of employees in San Antonio, Texas: “These dynamos really have grown occupancy this year due to closing the back door! They’ve decreased their move outs by 4 per month!”
In an email sent the same year, Budgie Amparo, the nurse who served as head of quality control for the company, thanked Emeritus nurses around the country. “I would like to recognize our nurses for their unbelievable focus” on “the back door,” he wrote.
Emeritus employees at all levels describe a company consumed. Former nurse Doris Marshall said that “closing the back door” was one of her chief responsibilities. “It meant to retain the residents as long as you possibly can,” she said.
Has your loved one lived in an assisted living facility?The company tracks move-outs closely at each of its hundreds of facilities, gauging the trends and patterns from region to region.
Its officials describe the zeal for retention as benign — nothing more than a good-faith effort to please customers and adjust services and care for residents whose needs change over time. A resident may dislike the meals or squabble with the ornery guy in the apartment down the hall. Perhaps a person can’t quite afford the monthly fees.
Emeritus wants “to ensure that the residents do not choose to move out because they are dissatisfied,” the company said in a written statement. “We do monitor move-outs so that we can identify and correct any issues and enhance resident satisfaction.”
But some people who have worked for the company, as well as some families who have endured painful episodes at Emeritus facilities, said the pressure to “close the back door” has led to dangerous lapses in judgment. In some cases, former employees said, the company failed to move out residents who should have been sent to nursing homes or other medical institutions.
ProPublica and PBS Frontline sifted through thousands of pages of regulatory records from seven states — Texas, California, Iowa, Mississippi, Georgia, Ohio and Florida. Since 2007, inspectors in each state have cited Emeritus for housing seniors who should have been moved out.
Regulators in Iowa faulted an Emeritus facility near Des Moines three times in less than two years. One case involved a 77-year-old with Alzheimer’s who repeatedly attacked other residents, groped female residents, and eventually had to be hauled out of the building by police officers. Another case centered on a resident with severe dementia who flipped over tables in the dining room and urinated on them, according to a state report. Nearly two months before state investigators showed up, a doctor had determined the resident needed a “higher level of care” and had passed that message on to the facility.
Iowa law bars facilities from renting rooms to people who are “sexually or physically aggressive.”
Regulators in Mississippi, Georgia and Texas have repeatedly cited Emeritus for housing wheelchair-bound seniors who could barely move at all. At a facility in Smyrna, Ga., investigators concluded that 15 of 35 residents shouldn’t have been there. The state labeled the violations an “imminent and serious threat to resident health and safety.” In Clinton, Miss., the number was 10 of 81, according to the state.
Emeritus disputed some of the findings by Mississippi’s regulators.
“We have no interest in preventing people from moving out,” said Emeritus founder and chairman Daniel Baty.
Emeritus does set precise move-out targets for all of its buildings, however. One such target was articulated by an Emeritus vice president in a 2008 memo sent to employees in California. The executive wanted fewer than 3.5 people to move out of each facility per month, apparently including those who died.
The emphasis left staffers confused and fearful, according to interviews and sworn testimony. Next to none of the workers at a place like Emerald Hills had the medical background to assess the changing conditions of the residents.
Emeritus workers said the corporate push to “close the back door” made them hesitant to transfer patients to nursing homes or hospitals. They understood their decisions were being closely watched and that there could be consequences if they missed their marks on occupancy and revenues.
“Don’t let anybody move out unless they were deceased.” Lisa Paglia, former regional sales manager for Emeritus, on what “keep the back door closed” meant.Nancy Cordova ran the Emerald Hills facility while Joan Boice was there. She later testified that the “close the back door” policy left her feeling pressured into housing “high acuity” clients – those with serious health problems -- and uncertain about where the line should be drawn in any given case.
A 2008 email suggests that facility directors like Cordova wound up looking to senior executives to make determinations on who was truly sick or challenging enough to open the back door for. In the email, Cordova asks her superiors about a small roster of people considering moving out of Emerald Hills. One wanted round-the-clock care. A second was more complicated: The resident had Parkinson’s disease, a degenerative disorder of the central nervous system, and needed three or four people to help get her in and out of bed.
“Just for added fun,” Cordova wrote of the resident, “she has severe hallucinations that are disturbing to her and the staff.”
It is unclear what the supervisors told Cordova to do.
Lisa Paglia, a former regional sales manager, said, in her view, “keep the back door closed” could be translated into another, more blunt, phrase:
“Don’t let anybody move out unless they were deceased.”
“I Don’t Know How She Sat”At Emerald Hills, Joan, her sores multiplying and worsening, became ever more isolated.
She sat for hours in her wheelchair. She seemed smaller. Depressed. She rarely ate or drank much. Her weight dropped. The muscles in her right arm had seized up due to inactivity, locking at the elbow.
The ulcers on Joan’s heels deepened. They began to blacken as the skin died. The sore on her buttock was chewing through her skin and into the fat beneath.
Joan groaned. She frowned. But she couldn’t speak.
Danielle Woodlee, who served as a kind of concierge at Emerald Hills, was struck by Joan’s deterioration. “It was almost like a movie,” she remembered. “I mean, the decline, it was just horrible.”
And Emerald Hills still hadn’t told the family what was going on underneath Joan’s clothing.
Joan’s physician would later say that Emerald Hills never informed her of many aspects of Joan’s deterioration – that she had fallen and been taken to the hospital, that she had become confined to her wheelchair, or that she was losing so much weight.
“It was almost like a movie. I mean, the decline, it was just horrible.” Danielle Woodlee, who worked at Emerald Hills, on Joan Boice's health.One Saturday morning, Eric showed up at Emerald Hills with Joan’s morphine, prescribed for the pain caused by a problem with her spine. He couldn’t find any Emeritus employees save Woodlee. He stalked through the memory care unit. He looked in the medication room, and the nurse’s office.
“I couldn’t find anybody,” he said.
After 20 or 30 minutes, Eric Boice left the drug with Woodlee, the concierge. The episode made him furious.
If he had seen Joan’s medication charts, his fury likely would have been exacerbated. The charts showed that on some days nobody gave Joan her morphine at all.
Eric began looking for the facility’s nurse and managing director every time he came to Emerald Hills. He could never find them. Woodlee later said there was a reason for it: She helped the senior officials hide out in her office when they knew a Boice family member was coming for a visit.
November became December. It was then that Emerald Hills formally notified the Boices of Joan’s true and now dire condition. Peggy Stevenson contacted Kathleen Boice, Eric’s wife. In an email, Stevenson said that because of Joan’s deteriorating health, she needed to be transferred to a nursing home.
Kathleen was stunned. “This was the very first time we had ever heard anything like that,” she said.
Three days later, Joan was admitted to a nursing home about a half-mile from Emerald Hills. Kathleen sat with her as a nurse examined her skin.
Have you worked in an assisted living facility?The nurse started with the first ulcer Joan had developed, on the side of her right foot. “It was an oozing, open sore,” Kathleen said. “There was another sore on that foot, back by the heel, and it was black. Then they took off her other sock.”
“There was a sore. It took up her whole heel. And it was black and oozing red. And not to be rude, but it smelled so bad. It was putrid. You could tell it was decaying.”
The nurse put Joan in a hospital gown. Kathleen saw more wounds, including a fluid-laden blister bulging on the inside of one arm. “Then they took off her diaper. And there were two spots on her right hip that were red. It looked like the skin was starting to come off. There was a similar spot on the left side,” Kathleen said.
Joan grimaced when the nurse touched her. Kathleen held her hand.
“I thought we were about done,” Kathleen said. “And they rolled her over and then we found the one that was on her sit bone.”
It was huge. And black. And oozing.
“It was more putrid than the one on her heel,” Kathleen said. “I don’t know how she sat. It was horrible.”
Kathleen phoned her husband, who had left the nursing home to drive his father back to Emerald Hills. “She scared me,” Eric Boice said of his wife. “She couldn't talk. She was just sobbing. And I — and I didn’t know if she had been in an accident. I didn’t know what happened. She just started to say like, ‘The sores … the sores are all over her.’”
On Valentine’s Day, 2009, Joan died. Myron, her husband of some 50 years, was dead nine months later.
California regulators eventually cited Emeritus for improperly housing Joan despite her serious bed sores.
Joan’s death set off some agonizing soul-searching for her family.
Eric Boice was haunted for years. His mother visited him frequently in his dreams, he said. In those dreams, she was healthy and lucid and able to communicate. They talked. And Eric told her he was sorry “for not being the voice that she needed, for not demanding more of the people that we trusted with her care.”
Eric also heard from Emeritus.
Its collections department sent him a bill. Apparently, Eric hadn’t given the company sufficient notice when his mother went to the nursing home at the beginning of December. Emeritus wanted $14,175 to cover Joan’s rent and fees for December, January and February.
“Malice, Oppression, Fraud”The Boice family sued Emeritus not long after Joan’s death, and in late 2012 the trial was looming. It was then, the family says, that Emeritus made an offer to settle the case: more than $3 million.
There were several standards terms in the proposed deal. According to Eric Boice, the company demanded that the family return the extraordinary array of internal records their attorney, Lesley Clement, had obtained from Emeritus: spreadsheets, memos, emails, policy directives, budgets, personnel files.
Emeritus would admit no wrongdoing under the proposed settlement. None of Joan’s relatives would ever be able to talk publicly about the case. And the transcripts of 160 hours of depositions of company officials would remain under seal forever.
Eric Boice said the family ultimately decided to reject the offer. “We would not have been able to share my mom’s story,” Eric said, adding: “That was part of the bargain for the money.”
Emeritus declined to discuss details of any proposal but did not deny its existence.
Weeks later, the case went to trial and Joan’s story unspooled over two acrimonious months inside Courtroom 45 in downtown Sacramento. Nearly 40 witnesses took the stand. There were dozens of exhibits. The Boice family was there throughout, as were a team of Emeritus lawyers and two senior executives.
“Emeritus is not a health care provider. Emeritus is a real estate acquisition company,” Clement said in her opening statement on Jan. 7, 2013. “Emeritus should never take any elders into the buildings that it acquires because they don’t have the staff, they don’t have the training, and they don’t have the supervision to provide the care that Emeritus advertises.”
For Emeritus, the risks were not confined to the trial inside Courtroom 45. Headlines about an unfavorable jury verdict can linger on the Internet for years, scaring off would-be customers across the country. Emeritus mounted a vigorous defense.
“The diseases of aging are despicable sometimes,” Bryan Reid, the lead lawyer for Emeritus, told the jury that day in January. “There will be no dispute that what the Boice family had to go through was not pleasant.”
Joan Boice’s death, he argued, was not caused by neglect, but by the very serious illnesses she suffered from when she arrived at Emerald Hills, including dementia. If Joan had been neglected, why hadn’t her family taken action? Why hadn’t they reported any alleged neglect to the authorities? Why had they not moved her out?
“It will be clear at the end of this trial, I believe, ladies and gentlemen, that Emerald Hills fulfilled its obligations,” Reid said in his opening statement. “Its staff did what they were able to do as part of this team that was shepherding her through her journey.”
As Clement called witnesses and introduced internal company memos and emails, she hammered at what she argued were the company’s broken promises: Emeritus didn’t have the adequate staff it had advertised; that staff wasn’t properly trained, as the company had boasted; the company’s fixation was with occupancy rates, sales and containing costs, and not on care.
Dorothy Ting, who had run an Emeritus facility in Fairfield, Calif., testified that the seniors in her facility’s memory care unit ate out of metal dog bowls because the company would not spend the money on more appropriate dishes.
Nancy Cordova, who ran the Emerald Hills facility during Joan’s stay, was asked a pointed question by a member of the jury. Was it fair to say, the juror asked, that Cordova, responsible for 80 or so residents, many of them with dementia, was “in over her head”? “I think that would be fair to say,” answered Cordova.
One of the trial’s most dramatic episodes involved the testimony of Budgie Amparo, a senior Emeritus executive and the highest-ranking company official with any kind of medical background. Amparo, a registered nurse, had described himself as the person ultimately accountable for the safety and well-being of the thousands of elderly men and women living in the company’s vast portfolio of buildings.
However, Clement’s questioning of him, both before the trial and on the stand, called into question whether his career experiences in nursing were sufficient to shoulder that responsibility.
Amparo, who earlier under oath had described himself as the “pillar of quality” at Emeritus, testified that he had earned a master’s degree in nursing by taking online classes offered by the University of Phoenix. He had done no clinical work as a part of the program. Amparo also had to admit that he had failed his board exams at least twice before finally gaining his accreditation as a registered nurse.
In Courtroom 45, Clement explored with Amparo one of the aspects of Emeritus’s operations that she regarded as particularly questionable: the requirement that nurses who worked for Emeritus were responsible not only for medical care, but for filling its buildings with new residents through sales.
“Since when were nurses supposed to be sales and marketers, sir?” Clement asked Amparo.
“They are not,” he said.
“Since when are nurses supposed to be worried about meeting financial goals of Emeritus?” Clement persisted.
“They are not supposed to,” Amparo said.
“Isn’t that what Emeritus requires, according to their job description?” Clement asked, referring to one of her exhibits.
“That’s what the document says, yes,” Amparo replied.
In the end, the two sides fought most bitterly over the question of Joan’s death — what had caused it and who was responsible.
Clement hired Dr. Kathryn Locatell, a forensic geriatrician, to provide expert testimony. Locatell pointed to Joan’s dramatic decline at Emerald Hills — in particular her dramatic weight loss and festering bed sores, which can be prevented or minimized with proper attention — as signs of neglect. Locatell testified that these factors had been critical in Joan’s demise. She estimated that Joan could have lived another three to five years if she had been properly treated at Emerald Hills.
Emeritus’s lawyers countered that the staff at Emerald Hills had worked tirelessly to tend to Joan. And they pointedly asked why, if Joan had been so neglected, no one ever made a formal complaint about it – not the Boice family, not the outside nurses who saw her, not her own doctor.
A neurologist hired by Emeritus ascribed Joan’s death to her advancing Alzheimer’s and a string of strokes. “She was having a series of small and accumulating strokes” in the left side of her brain, Dr. Richard Tindall testified, “leading to progressive weakness and inability to use her right side.” “This was one stroke on top of another, on top of another,” he added.
On the last day of February, the lawyers summed up their cases. Clement reminded jurors of the company’s slogan.
"‘Emeritus is committed to your family.’ Remember that? Remember their promise painted on the walls of their buildings, on their website?” she asked. “‘Our family’s committed to yours.’ But the evidence is, the truth is, Emeritus is committed to your family’s money. That’s what they are committed to.”
She continued, “Emeritus told Joan, ‘Trust us,’ and Emeritus told you to trust them. Trust their officers, their directors, their managing agents, and yet when they came into this courtroom they lied to you. They lied to Joan Boice. They lied to her family, and they lied to their own employees.”
Reid staunchly defended Emeritus’s ethics and its record. He said Clement had distorted facts, misrepresented the company’s policies and enlisted a bunch of disgruntled former employees to make false allegations. It amounted to a stock formula for litigating an elder abuse case, he said.
“The tragedy is the vicious allegations,” Reid said. “It’s not the care.”
“I don’t feel that with this loss Emeritus is doing anything different.” Eric Boice on the outcome of his family's case against Emeritus.On March 1, the jury got the case, and after two days of deliberations, its members filed back into Courtroom 45. They had reached unanimous verdicts on more than a dozen questions, finding the nation’s largest assisted living company had acted with “malice, oppression and fraud” — and that its negligence had caused Joan’s death. The jury awarded the Boice family $3.875 million for pain and suffering — a figure that was automatically reduced to $250,000 under California law.
There was more work to do, however. The jury convened again to settle on a number, a dollar figure Emeritus would have to pay in punitive damages. The figure came back: $22.9 million. Two jurors had actually wanted to award more.
Emeritus promptly appealed, asking the trial judge, Judy Holzer Hersher, to reduce the punitive damages or order a new trial.
It would be three months before Judge Holzer Hersher handed down her ruling. But on June 10, she denied the company’s appeal in all respects. The award was lawful, she ruled. Clement had proved her case. And the evidence had shown that the company’s most senior officials were well aware of the troubles at their facilities, including Emerald Hills.
Eric said he is glad the family took the case to trial. He is grateful for the $23 million total jury award, but says Emeritus’s refusal to acknowledge any wrongdoing or failure or error has caused a kind of ambivalence to grow in his mind.
“Technically, yeah, we won and Emeritus lost,” Eric said. “But to me it’s bigger than that. It’s more about right and wrong. And I don’t feel that with this loss Emeritus is doing anything different. I honestly don’t think they have changed their practice, their business as usual.”
The jurors, in calculating their award, appear to have sent a message to Emeritus about its business practices. They came to the $22.9 million in punitive damages by adding together the 2011 compensation for Emeritus’s chairman and chief executive officer.
And then the jury took a step to make sure Emeritus didn’t forget Joan Boice, the Illinois farm girl who had come to California to chase a dream, and who, in an effort to hang onto her dignity near the end of her life, signed on with Emeritus Senior Living.
The jury tacked on 81 cents to the award — Joan’s age when she moved into Room 101 at Emerald Hills.
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White House Closes Inquiry Into Afghan Massacre – and Will Release No Details
Soon after taking office, President Obama pledged to open a new inquiry into the deaths of perhaps thousands of Taliban prisoners of war at the hands of U.S.-allied Afghan fighters in late 2001.
Last month, the White House told ProPublica it was still “looking into” the apparent massacre.
Now it says it has concluded its investigation – but won’t make it public.
The investigation found that no U.S. personnel were involved, said White House spokeswoman Caitlin Hayden. Other than that, she said, there is “no plan to release anything.”
The silence leaves many unanswered questions about what may have been one of the worst war crimes since the U.S. invasion of Afghanistan, including why previous American investigations were shut down, and how evidence was destroyed in the case.
“This is not a sufficient answer given the magnitude of what happened here,” said Susannah Sirkin, director of international policy for Physicians for Human Rights, the organization that originally uncovered mass graves where the prisoners were buried.
The long saga began in November 2001, when Taliban prisoners who had surrendered to Northern Alliance commander Abdul Rashid Dostum were transported in shipping containers without food or water. According to eyewitness accounts and forensic work by human rights investigators, hundreds of men died of suffocation while others were shot, and their bodies buried at the desert site of Dasht-i-Leili.
Dostum was working closely with U.S. troops at the time. Surviving prisoners alleged that Americans were present at the loading of the containers – but the Pentagon has said repeatedly that it had no evidence that U.S. forces participated or were even aware of the deaths. (Dostum has denied any personal involvement, and claims that roughly 200 men died in transit, from battlefield wounds.)
In the fall of 2002, the U.S., U.N., and even Dostum himself expressed support for an investigation. But none got underway. In the summer of 2009, prompted by a New York Times report that Bush administration officials had actively discouraged U.S. investigations, President Obama ordered a new review of the case.
Hayden, the White House spokeswoman, said the new investigation “was led by the intelligence community,” and found that no Americans – including CIA officers, who were also in the region – were involved.
She declined to answer the following lingering questions:
- What was the scope of the investigation? Former Bush administration officials who had been involved in the initial U.S. response to Dasht-i-Leili told ProPublica that they had not been contacted for a new inquiry. Physicians for Human Rights said it received only tepid responses to its queries from the administration over the past several years.
- Did the investigation cover the allegations, reported in the New York Times, that Bush administration officials had discouraged inquiries by the FBI and State Department?
- Did the U.S. help with related inquires by the U.N. or the Afghan government? Even absent direct involvement of U.S. personnel, government documents make clear that the U.S. knew about the allegations early on. The U.S. was in an alliance with Dostum, and was the de facto power in the country after the invasion. An Afghan human rights official told ProPublica last month, “I haven’t seen any political or even rhetorical support of investigations into Dasht-i-Leili or any other investigation into past atrocities, from either Bush or Obama.”
- Did the new investigation cover revelations that graves were disturbed and evidence removed as late as 2008? What, if anything, did the U.S. do to help protect the site over the years?
A parallel investigation began by the Senate Foreign Relations Committee in 2010 also never made headway. The committee staffer leading that investigation was former CIA officer John Kiriakou, who is currently serving time in federal prison for revealing the name of an undercover officer to a reporter.
In letters from prison to ProPublica and an interview published recently in Salon, Kiriakou said that Secretary of State John Kerry, who was then chairman of the committee, personally called off the investigation. The State Department declined to comment, but a former Senate aide to Kerry called Kiriakou’s account “completely fabricated.”
Note to Staff: Send. Forward. Oops.
When Emeritus’s top public relations official fired off a passionate call to arms – an email beseeching the company’s employees to blunt the impact of PBS Frontline and ProPublica’s investigation of the assisted living business by posting positive things about the company and the industry on Frontline and ProPublica’s website and Facebook accounts – she surely didn’t mean for it to be sent to ProPublica.
But that’s what happened, notwithstanding the attempt by an Emeritus employee to take back what clearly was an inadvertent forwarding of the email.
Here it is:
Subject: Emeritus
From: Wilburn Gardens-ED
Date: July 31, 2013 10:23:41 AM EDT
To: feedback@propublica.org
OK, everyone, it’s our turn now.
The broadcast has aired. Frontline has told their story. Now it’s time to tell ours. And folks, let’s tell it LOUDLY.
I am asking you, right now, to take five minutes, go online to one of these websites (or cut and paste to all of them, for that matter), and write just one sentence that speaks to your incredible community, your amazing staff, your wonderful residents and families that you care for, the job that you love and the difference that you make.
There’s a great quote: “Never underestimate the power of a small group of committed people to change the world. In fact, it is the only thing that ever has.”
If you don’t think your one post will matter, it does. A LOT.
We have only to be proud of what we do. Now is OUR time to flood the internet with the sounds of OUR united voices. Shout out about the exceptional care your team delivers 24 hours a day, 7 days a week, 365 days a year, for your residents and their families who trust and believe in you.
Please. Do it now.
ProPublica
http://www.propublica.org/
Frontline
www.Frontline.org
Frontline Facebook page
https://www.facebook.com/photo.php?fbid=10151535403996641&set=a.491930816640.259623.45168721640&type=1&theater
ProPublica Facebook page
http://www.facebook.com/propublica
Your work is love made visible. You are an example for us all.
~Karen
Karen Lucas – VP, Product Development and Communications
Emeritus Senior Living | 3131 Elliott Avenue, Suite 500 | Seattle, WA 98121
Russell Williams – Executive Director
Emeritus of Wilburn Gardens | 3500 Meekins Drive | Fredericksburg, VA 22407
Our Family is Committed to Yours.®
"The essence of profound insight is simplicity…" -Jim Collins
“If you lose the power to laugh, you lose the power to think…” -Clarence Darrow
See original document >>
Seven Questions To Ask When Searching for Assisted Living
Finding reliable data on assisted living isn’t easy. Federal and state statistics can be hard to come by, and it’s often simpler to search for restaurant reviews on Yelp than it is to locate ratings and reviews for a local assisted living facility. So where do consumers begin if they’re considering sending a loved one to assisted living? We put that question to several experts. Here is what they had to say.
1. What Are Your Needs?Assisted living isn’t for everyone, so it’s important to understand what level of care you need and how that may change with age. Experts say that is especially true when it comes to seniors with dementia.
Consider this 2009 study led by researchers at Johns Hopkins University: It found that 46 percent of assisted living residents suffered from at least three chronic conditions, yet only 54.5 percent of facilities surveyed in the study had a registered nurse or a licensed practical nurse on staff. As the survey authors note, “Some residents with multiple, complex medical conditions present a challenge that some [assisted living facilities] may not be prepared to manage.”
Assisted living facilities can have limited medical staffs — no doctors and often no nurses — so while many people may shudder at the thought of a nursing home, for some seniors, it may be the better option.
“So many people have heard their mother say, ‘Promise me you’ll never send me to a nursing home.’ And a lot of people make a mistake in choosing assisted living because it looks nice rather than what the person really needs,” says Catherine Hawes, director of the Program on Aging and Long-Term Care Policy at Texas A&M University.
2. Have You Visited?If you have settled on assisted living, it’s important to visit prospective facilities multiple times. Experts recommend visiting at different times of the day — meal times are a good place to start.
It’s not enough to just tour the building with the director, they say. Instead, take time to talk to residents and staff for a sense of the facility’s culture and environment. Ask about available services and about what staffing is like throughout the day and at night. It doesn’t hurt to inquire about turnover either, as that can be a good indicator of how reliable services will be, as well as how well the staff understands residents’ needs.
For residents with dementia, it’s also important to understand how the facility manages their care and safety. For example, what kind of programming is available? Are the doors locked at night for residents who wander?
Checklists for visiting an assisted living facility are available from several organizations, including the AARP, the Alzheimer’s Association, California Advocates for Nursing Home Reform and the Assisted Living Consumer Alliance, among others.
3. For-Profit or Non-Profit?It’s also important to consider whether the facility is a for-profit, or not-for-profit institution, as that may influence how resources are allocated for care.
About 82 percent of residential care facilities are private, for-profit facilities, CDC data shows, with about four in 10 belonging to a national chain. Such for-profit chains, says Hawes, often have “requirements for a return on revenue that mean that they’re always pressing for higher occupancy and for constraining variable costs, and the variable costs are staffing and food, and to some degree, activities.”
From 2006 to 2011, for example, profit margins at privately owned assisted living facilities went from 3.5 percent to 6.4 percent, according to research from Sageworks, a financial information company. Those gains corresponded with drop in payrolls from 45 percent of sales in 2004 to 38 percent in 2012.
That doesn’t necessarily mean that you should dismiss for-profits and focus your search on non-profits only because, as Hawes notes, there are good and bad facilities in each category. But experts say the funding model can have an influence on another significant factor: cost.
4. What Are the True Costs?Assisted living can expensive, and because it is not covered by Medicare, for many seniors, the cost can be prohibitive. In 2012, the average monthly base rate in an assisted living facility rose to $3,550, according to a survey by MetLife. In several states, base rates can run as high as $9,000 a month.
The sticker price, however, often won’t account for the fees a facility charges for additional services. Some facilities will charge a resident extra for meal delivery, for example, while others add on fees for services such as transportation to and from the facility, or laundry and housekeeping. Likewise, fees for bathing assistance, dressing assistance and medication management can add thousands of dollars a month to the base rate.
5. What’s in the Admissions Agreement?Admissions agreements can be lengthy and complicated, so experts advise taking your time to read them carefully. Occasionally buried in the fine print is language requiring 30 days notice to stop billing for services, even if the person staying there has died, says Patricia McGinnis, executive director of California Advocates for Nursing Home Reform.
Another red flag are so-called negotiated risk agreements. These clauses are often offered as a way for residents to make preferred choices about their care, even if they present some risks. For many in the industry, they are seen as a way to help seniors preserve a sense of independence. But as McGinnis warns, if something goes wrong, “You have signed away your right to sue.”
Liability waivers, another common part of admissions agreements, can present the same problem.
“To me, that is a sign that the facility may not have either the ability or the commitment to meeting your needs,” says Nina Kohn, a professor of law specializing in elder law at Syracuse University. ”If you’re confronted with a contract with that kind of liability waiver, I think it’s reasonable to say, ‘I’m going to cross out that provision.’ See how the facility responds.”
If any part of the admissions agreement is unclear, consult with an elder law attorney, suggests Kohn. The American Bar Association also provides a checklist for choosing an assisted living facility.
6. Where is the Facility?It’s nice to find a residence that’s close to friends and family, but experts caution against letting that be the deciding factor.
“It is really important to have a place that’s easy to visit, but it’s more important to find a facility that’s really good,” says Hawes of Texas A&M. “Don’t choose a facility that’s five minutes closer to you, or 10 minutes closer to you just because of that. Make sure that you’re getting the best facility for what your loved one needs, and be realistic about what they need.”
7. What Does the Ombudsman Say?Because data on assisted living facilities can be hard to come by, experts recommend contacting the long-term care ombudsmen for your local area. These officials can offer additional checklists or information on any citations against a facility, as well as answer any additional questions you may have.
In terms of citations, Karen Love, president of the Center for Excellence in Assisted Living, says to look out for any medication administration violations. She also suggests asking “Have they been cited for not having staff trained, if it’s a state requirement, and have they gotten dinged for not having enough staff, again if that is a state requirement?”
The National Long-Term Care Ombudsman Resource Center provides a map on its website with contact information for ombudsmen in all 50 states.
Discussion: Is Assisted Living Putting Profits Above Care?
Assisted living in America is a growing, multibillion-dollar industry. Nearly 750,000 people live in facilities across the U.S. But is it safe?
Our new investigation with FRONTLINE went behind closed doors and found a world where profits appear to be trumping quality care. We found several instances of understaffed facilities, and direct mandates from management to prioritize sales over healthcare.
And though nursing homes have federal regulations, assisted living facilities are loosely monitored; states are responsible for setting and enforcing the rules.
Should the government revamp oversight for these facilities? Are some facilities better than others? What factors should you evaluate when choosing a facility for your parents? What questions do you have about assisted living or your loved ones?
Today at 2 pm ET, join ProPublica reporter A.C. Thompson and the film’s producer, Carl Byker, for a live chat on these questions and more. Cheryl Morgan and Eric Boice, who were both in the film, will also join the chat, and Next Avenue senior editor Richard Eisenberg will be asking questions.
Feel free to leave your questions below in advance, and come back at 2 pm today for the live discussion. A transcript will be available after the chat.
<a href="http://www.coveritlive.com/mobile.php/option=com_mobile/task=viewaltcast/altcast_code=5115c7f379" _cke_saved_href="http://www.coveritlive.com/mobile.php/option=com_mobile/task=viewaltcast/altcast_code=5115c7f379" >Life and Death in Assisted Living Chat</a>
Has the Gov’t Lied on Snooping? Let’s Go to the Videotape
For Assisted Living Industry, a Media Strategy to Thwart Federal Oversight
This story has been updated with a roundup of Emeritus employee responses.
Emeritus Senior Living, the country’s largest assisted living company, has crafted detailed plans to respond to PBS Frontline and ProPublica’s investigation of the company and the assisted living industry.
Saying the report could lead to “the call for more stringent regulation,” the company emailed an eight-page strategy memo to the leaders of the nation’s major assisted living chains, asking them to put up a “united front.” Karen Lucas, the company’s vice president for communications, said Emeritus developed the media strategy in conjunction with trade groups and other assisted living firms.
“Everyone is working together to make sure we’re educating the public,” Lucas said.
Emeritus has also developed a response plan for the employees who run the company’s roughly 500 facilities, telling them to comment on Frontline’s website and Facebook page and on ProPublica’s Facebook page. The company also instructed workers to encourage residents in Emeritus facilities to post positive comments on Yelp, Caring.com, and Google “to offset the potential negative backlash created” by the investigation.
ProPublica and Frontline have obtained the strategy documents, which are posted here:
Email from Granger Cobb,
Re: Frontline Broadcast
Emeritus Strategy Memo: Frontline Industry Response Materials
Emeritus Response Plan
for Employees: Frontline Checklist for Eds
Email from President & CEO Granger Cobb:
Subject: Frontline Broadcast
From: Granger Cobb
Sent: Monday, July 15, 2013 3:35 PM
As many of you are aware, Frontline will be airing a story on the assisted living industry on July 30. The title of the program is “Life and Death in Assisted Living.” As the largest assisted living provider, Emeritus is going to be featured in the story; however, this is an attack on our entire senior living industry. We believe Frontline is using the isolated incidents in this story to promote stricter and more nationalized regulation for the industry and to suggest that for-profit corporations and caring for seniors are somehow incompatible.
In the hopes that we present a united front, I have attached materials that include key industry messages developed with input from experts at ALFA and ASHA as well as our own team. To ensure the public remains confident about residing in or having their loved ones reside in assisted living, it is critical that we present a consistent message.
Please take a moment to read the attached, modify as you see fit, and share with your teams as appropriate. We are trying to balance the need to prepare staff, without drawing more attention to the story than it might otherwise garner on its own. As an industry, we care for one of the most fragile populations in society. We need to get our message across – that assisted living fills a consumer driven niche by creating a place where seniors can retain their independence, dignity, and quality of life, while having access to care and assistance as needed. We know that residents in assisted living communities have a satisfaction rate of greater than 90 percent. This is the message we need to be telling – that, as an industry, we care for more than 1 million seniors, providing them with the resources to lead purposeful, fulfilling lives and that we accomplish this with a very high degree of customer satisfaction.
I have received messages of support from many of you regarding this story, for which I am deeply appreciative. I am convinced that if we stand together, we can successfully counter the picture Frontline is trying to portray of our industry and tell the wonderful stories of compassion and nurturing our residents experience every single day.
If you have any questions or concerns about the Frontline story, I encourage you to contact me. Thanks for your support.
Granger
Granger Cobb– President & CEO
Emeritus Senior Living | 3131 Elliott Avenue, Suite 500 | Seattle, WA 98121
(206) 298-2909 | Fax: (206) 204-1547 | gcobb@emeritus.com | www.emeritus.com
Our Family is Committed to Yours.®
Emeritus Strategy Memo:
Frontline – Assisted Living Response Materials
What we know
The Frontline Documentary that will be examining the assisted living industry will air on Tuesday, July 30 on PBS. In an average week, more than 4.6 million people watch Frontline. Among the 285 PBS stations airing FRONTLINE, there are 459 total weekly plays. Programs are often picked up by NPR and other mass media public radio and TV programs. FRONTLINE's audience tends to be affluent and well-educated. They are more likely to hold executive or professional employment positions than the general population.
For the last year, Frontline has been investigating a few unfortunate and tragic resident incidents that happened several years ago at four of our Emeritus communities, and by interviewing disgruntled former employees. They also sat in the courtroom during the trial in California that resulted in an adverse jury verdict.
Content predictions
Because of the direction of that research and additional information we’ve received from the reporters and producer, Emeritus and the Assisted Living industry as a whole will not be presented in a positive light.
Frontline is likely using these incidents to suggest tougher and more nationalized regulation for the entire industry. We also believe their story will hit on these themes:
- Ineffective regulation of Assisted Living at the state level
- Inadequate disclosure / visibility for the public
-
Putting profits over people, as evidenced by:
- Understaffing and insufficient training
- Heavy focus on sales rather than quality
- Inadequate investment in care in order to service debt, finance growth, and satisfy investors
- Violating regulations by admitting residents improperly
- Violating regulations by not transferring residents as required
Industry impact
We believe Emeritus will be heavily featured in this documentary; however, this broadcast could contribute to a loss of public confidence in (and the call for more stringent regulation of) the entire assisted living industry.
Response preparation
In preparation for any questions or concerns your communities may receive as a result of the story, the Emeritus Communications Team has prepared key messages related to these themes for you to customize and use in any media statements or talking points required for inquiries about the Frontline program. Our hope is that by communicating similar messages, the entire industry will put forth a united front by disseminating consistent information to all our constituents.
In addition, we’ve provided some tips and guidelines on handling media inquiries or responding to the story via online channels.
If you have any questions about the Frontline story or the Emeritus response plan, please don’t hesitate to contact Karen Lucas at 206-204-3038 or MaryBeth Dagg at 206-554-1908.
Handling Media Inquiries About the Broadcast
Please be aware that after this Frontline broadcast, your company and/or communities may get media inquiries to comment on the story or any of the issues being brought to light in the broadcast. Make sure staff is prepared to handle these inquiries.
As experts and leaders in the senior living industry, it is important that your voice be heard. Please consider responding to any media requests.
In-Service Community Staff
At the community level, make sure staff, especially anyone who answers the phone, is in-serviced on your media protocols. Here are some procedural tips for handling calls that may be useful to them:
1. If the media calls, indicate that the Executive Director is with a resident and that they will get back to them before the reporter’s deadline or as soon as possible.
2. Obtain the following information while they have the media on the phone:
- Reporter’s name
- Affiliation
- Phone number and email address
- Deadline (very important)
- Any questions he/she needs answered
Write down the questions and tell them that the appropriate person will get back to them before their deadline.
Media Response Do’s and Don’ts
To help you for a media interview or response, whether it’s on paper, via phone or in front of a camera, here are some do’s and don’ts to keep in mind.
Media Response Do’s
- Do prepare and approach your response/interview from the public’s viewpoint.
- Do prepare three to four key talking points and continue to hit those points throughout your response/interview.
- Do assume every word you say will be quoted.
- Do keep to the facts and keep answers short and to the point.
- Do be confident. You are the expert.
- Do make your delivery conversational. Be comfortable and be yourself!
- Do provide examples, or make comparisons to make your point, when relevant.
- Do cite sources when necessary.
- Do be honest. If you don’t know an answer say, “I don’t know that answer. We will get back to you on that.”
- Do ask them questions, for clarity or to confirm they’ve explored all the angles.
- Do express concern to show you care, but don’t be emotional.
- Do watch your local news to see examples of how other companies/people handle media responses. See what works/what doesn’t.
Media Interview Don’ts (with tips)
- Don’t ever say "no comment." This is your chance to tell your side of the story. If you haven't had a chance to review the story or issue. Say "I'd very much like to comment on this as soon as I've seen the story/gathered more information. You can also ask a reporter if you can follow up with an answer before a certain day/time. In most cases, there is always something you can say about an issue, even if it’s just encouraging the reporter to take a broader look at the topic or see it from a different angle.
- Don’t conduct an impromptu interview if a reporter contacts you directly. Before submitting a statement or participate in an interview, prepare thoroughly with written talking points and a practice Q&A session with a colleague. Again, set yourself up with three to four key points you’d like to communicate during the interview.
- Don’t ever trust that anything you say or write to a reporter is “off the record.” Everything you communicate to a reporter can be quoted, even if they assure you they won’t use it.
- Don’t ever argue with a reporter. The media is looking for relevant sources and compelling interviews to add value to their stories. Building positive relationships during a difficult interview may make them consider coming back for a more positive story.
- Don’t talk too much and go off on tangents. Try speaking in soundbites and, when appropriate, make comments that are two to three sentences long.
- Don’t answer mechanically. Be loose and conversational.
- Don’t speculate or exaggerate. Stick to the facts, or you might have to back up your statements at a later date. Be comfortable saying, “I don’t know,” or “I can’t speculate on that.”
- Don’t disparage your competition. This will say more about your own ethics and practices than it will about the other company. If a question comes up about your competition, let a reporter know you can’t speak for other businesses, then transition back to your message.
- Don’t feel like you have to answer every question. With practice, skilled interviewees can respond to a question by bridging the answer back to one of their three key points they’ve identified earlier. If nothing else, it’s fine to say, “I’d be happy to answer that after all the facts are in/after our day in court/after we receive a judgment on that/once we’ve had a chance to review all the research/once we complete our internal investigation, etc.
- Don’t miss the loaded question. Skilled reporters have a knack for delivering leading and loaded questions. Keep an ear out for questions that include incorrect assumptions about the topic or your business. Also, beware the reporter who slips in a hard ball after delivering several easy pitches. Keep aware, don’t be caught off guard, and ask them to rephrase the question for clarity, if needed. Correct them if they make incorrect allegations as part of their question.
Set the Story Straight on Social Media Posts
We want to encourage Industry leadership to post a comment if you feel like you can add value or clarification to the story. We’ve included posting guidelines below if you would like to express your opinions on the coverage.
The story will be posted on the Frontline website at www.frontline.org. Additionally, on the Frontline Facebook page, they will post a “So, what did you think?” question for people to comment about the story: http://www.facebook.com/frontline?fref=ts. The story link will also be on the ProPublica Facebook page at http://www.facebook.com/propublica?fref=ts.
Posting Guidelines
- In posting, it is appropriate to state what company you work for in what capacity, although it is not necessary to give your name.
- Be extremely professional, courteous and articulate.
- The best response is not defensiveness, but by explaining a specific personal story the benefits of assisted living to seniors and families. Expressing disappointment in the coverage is acceptable.
- Demonstrate that you have intensive experience working with this very fragile population, and explain some of the challenges if you feel appropriate to what you wish to say.
- Other posters’ comments may be hostile and accusatory, but please do not respond with anger or insults. Keep it professional.
- Only post once. If your comment is disputed or criticized, just let it go.
- Thank you to all of you who are willing to share your knowledge with the public through these venues on such an important issue.
KEY INDUSTRY MESSAGES
Who Benefits from Assisted Living (AL)
Seniors
During much of the 20th century, seniors who were no longer able to live independently could arrange for care to be delivered in their home or they could be admitted into a nursing home. The first choice could be expensive (or a burden on family member caregivers) and fraught with the risks associated with a lack of training and oversight. The second choice generally resulted in a loss of independence, dignity, privacy, and a diminished quality of life. In institutional settings like the traditional nursing home, the senior’s life was subordinated to the rules and schedule of the institution. The assisted living movement changed that.
Assisted Living meets the needs of seniors who:
- Are unable to, or choose not to, live at home, yet do not need 24/7 skilled nursing care.
- Live alone without adequate assistance available to them to eat healthfully, manage medications, perform their activities of daily living, manage safety issues, or stay socially active.
- Want to live independently in their own apartment while having the peace of mind of knowing care is available should the need arise.
Caregivers/Spouses/Adult Children
There are 20 million working, unpaid caregivers in the U.S. Forty percent of family caregivers have symptoms of depression according to an Assessment of Family Caregiver report. Assisted living meets the needs of caregivers who:
- Need peace of mind that their loved one’s safety, health and emotional needs are being met while they work or attend to their own children.
- Are seeking more quality time with their loved one rather than only spending time providing the daily tasks of caring for their loved one.
Staffing and Training
- Assisted living communities have staff available 24/7 to provide assistance, care, activities and social engagement for residents.
- Assisted living communities are staffed based on the level of care and service needed by the residents.
- Residents are evaluated upon move-in to determine the amount and type of personal care they need as well as how they typically enjoy spending their day.
- The caregiver-to-resident ratio can vary by community, by resident acuity and/or by state regulations. Each community plans their staffing according to state regulations and the specific needs of their residents to ensure that the need of each resident is met. For example, if a 40-apartment AL community serves a very independent group of seniors, there would be fewer caregivers than a community with 40 residents in need of greater assistance.
- When planning appropriate staffing, the number of staff on each shift is one consideration; but it is just as important to have staff with the right skills, training and experience.
- Our staffing levels are in compliance with state regulations and in some cases exceed those regulations depending on the level of care required by residents at each individual community.
- Our community leadership has the authority to increase staffing levels at any time to meet the needs of residents.
- Turnover varies across assisted living. Communities pay competitive wages, seek people who want to work with seniors, and offer substantial training; however, caring for seniors is difficult work.
Business & Investments
- Assisted Living is a consumer-driven resource available to seniors and their families. It is a highly competitive industry with a variety of options available; therefore, senior living communities have every motivation to provide residents with quality care, services and experiences in order to retain them as customers.
- Residents sign a residency agreement prior to moving in to a senior living community. This agreement is similar to an apartment rental agreement and generally renews annually.
- Residents and family members who are not completely satisfied can choose to move to another community – usually with only 30 days’ notice.
- Assisted living operators understand that the key to financial success lies in delivering a very positive customer experience. If a community does a good job of providing care and service with a high degree of customer satisfaction, they will enjoy high occupancy and be able to charge a fair rate. The financial investors and lenders believe the senior living sector will continue to grow in order to meet increasing demand as the senior demographic expands and the consumer becomes better educated as to senior living options.
Safety Issues
- Assisted Living providers care for one of the most fragile populations in society – and it is a profession fraught with numerous daily risks.Professionally managed AL providers understand and manage those risks 24/7.
- Professionally managed AL communities work to maximize safety and minimize the chance of human error.
- Yet, even when every reasonable precaution has been employed and policies and safety codes have been strictly followed, accidents will sometimes occur.
- AL communities have systems in place to help reduce the chance of falls and injury that may result due to falls. And, if a fall does occur, staff is available 24/7 who can respond to assist the resident.
- Accidents and misconduct issues in AL communities are reported by staff to supervisors, who then notify the proper authorities. There are multiple ways to report issues both to company authorities and to state and federal authorities.
- Following an accident, there is an internal investigation, the incident is reported to the state, and steps are taken to minimize the possibility of a similar occurrence.
- Balancing a resident’s safety with their right to independence and choice can be challenging. Assisted living communities offer a higher level of support and safety, while preserving the quality of life that comes from a residential environment with private apartments.
- Like all Assisted Living communities, we have a zero tolerance policy on abuse. Neglect and abuse is not tolerated in any of its forms – physical, emotional or financial – and is dealt with swiftly and aggressively.
- Complaints are taken seriously by Assisted Living communities. Every provider has a complaint resolution process. In addition to the providers, each state has a complaint system in place. Additionally, most states require assisted living communities to make their state inspection reports available to consumers for review.
Family Education Re: Safety Issues
- Family education and awareness as to what is provided in an AL environment as well as the limitations of an AL environment is essential. The AL environment cannot eliminate risks; however, it seeks to minimize risks, while maximizing quality of life. This balance should be made clear to residents and families prior to move-in.
- Families need to understand that AL communities don’t provide one-on-one care and are not a full-security lock-down environment.
- Families should understand how a community employs fall management systems and take recommendations for ambulation assistance equipment seriously. They should also know that even with comprehensive fall management systems in place, 100% fall prevention is extremely difficult to achieve in any environment. Alternative Care Options
- Before the assisted living sector existed, the only option seniors had were boarding homes with limited or no supportive services or nursing homes at twice the cost of assisted living and with a much more institutional environment.
- For millions of Americans, nursing homes are still the only option due to rules in many instances requiring seniors to go to nursing homes if they are receiving Medicaid. For others, nursing homes are often the only place seniors can go for short-term rehabilitation due to Medicare reimbursement requirements.
- Professionally managed AL communities are not in competition with these other options, but we are a newer and growing alternative for those seniors who cannot or do not wish to live alone any longer.
Regulatory Issues
- Assisted Living communities are licensed and regulated in each of the 50 states.
- We think state regulations are important; for example, we welcome state inspections to give us a report card on how we are doing. It’s important for us to get this feedback from a third party so we can continue to improve and address any problems that arise.
- State regulatory agencies have been evolving to keep up with the increasing popularity of assisted living as a preferred choice for senior living, and the economic realities of these options.
- Unless state regulation determines otherwise, residents of assisted living communities can generally stay if the resident, the resident’s family, the resident’s physician, and the community all agree assisted living is the best option for the senior.
- Regular unannounced inspections are performed by state regulators to ensure communities are in compliance with state requirements and standards.
- Professionally managed AL communities regularly perform internal inspections and not only meet, but most often exceed, the standards set by the state.
- Policymakers are working to improve regulations from state to state. When one state improves or changes regulations, other states learn from these experiences and make improvements in their own states.
- Each state has a resident bill of rights that is enforced and AL communities must preserve these rights while providing daily care and service for the resident.
Proposed Federal Regulation
- From time to time, federal regulation of AL communities is proposed as a way to fix the problems of the industry. Federal regulation, if imposed, would increase costs for consumers without increasing quality of care.
- We believe the states are in a better position to determine what their respective citizens want and to be responsive to that. The Federal government would have to take a one-size-fits-all approach that would limit choice and increase costs to the consumer. We do see the federal government playing a role in promoting and celebrating the fact there are market-based options for seniors and their families to turn to offering quality care and advancing quality of life.
- Federal regulation of assisted living would stifle innovation and would not allow for the flexibility assisted living communities require to continually adapt to consumer preferences.
Emeritus Response Plan for Employees:
Frontline Checklist for EDs
(All Emeritus Communities)
Managing this type of media exposure requires your full attention and commitment to all the action items below. Whether your community was mentioned in the story or not, your community can be impacted.
IMMEDIATELY AND ONGOING
- Solicit positive comments and reviews from your residents and families and have them post on Caring.com, Yelp, Google and other review sites to offset the potential negative backlash created by the Frontline story. Look for this button on E & Me for Online Review tools.
- If you have something positive going on in your community – a resident's 100th birthday, an Alzheimer's Association fundraiser, a community outreach program, or a free seminar for the public – send a press release to the local media using the release templates on E & Me. If you don't have something going on, plan something!
- Launch staff appreciation initiatives and recognize employees for their good work. Post compliments in public places or the staff break room.
- Anticipate extra attention and scrutiny from regulators and make every effort to ensure your communities are in full compliance.
- Be positive and keep your staff focused the great job they do every day.
WEEK OF MONDAY, JULY 22
-
Hold an all-staff meeting to discuss broadcast and its impact- distribute the following:
- FAQs for families and residents
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In-service staff on media protocols
- Review FACT SHEET Crisis Communication and the Media
-
Hold management staff meeting to discuss and distribute the following:
- Media statement
- Tips to respond online
WEDNESDAY, JULY 31
- Respond to resident/families inquiries using FAQ document
-
Respond to story online at:
- Frontline's website www.frontline.org
- Frontline's Facebook page http://www.facebook.com/frontline?fref=ts
- ProPublica Facebok page http://www.facebook.com/propublica?fref=ts
- Emeritus Facebook page(only if someone posts a negative comment) http://www.facebook.com/pages/Emeritus-Senior-Living/82009373317?hc_location=stream
- Online review sites where story is mentioned
-
Launch professional referral outreach efforts, targeting top 20 referrals:
-
Start the conversation with:
"There was a story about Emeritus on Frontline last night/week and I wanted a chance to talk with you about it." Then, use your FAQ to guide the conversation. - Use the same FAQ provided for families and residents.
- Bring them a meaningful leave-behind that is personalized for your unique community - i.e., something made by the residents or the chef's special snack/dessert.
- Share specific success stories of the residents they have referred
-
Start the conversation with:
Frontline
Q & A for Emeritus Communities
July 31, 2013
I heard Emeritus was part of a big media expose on the assisted living industry. What happened?
- Yes, Emeritus was featured on a recent Frontline program on the assisted living industry.
- It included accounts of some isolated and unfortunate incidents that occurred at other Emeritus communities many years ago.
- They were the rare exception to our company's outstanding record of serving hundreds of thousands of seniors over the last two decades.
- We were very disappointed by the broadcast, which did nothing to represent the dedication and commitment of Emeritus caregivers.
Can you tell me the details of these incidents?
- The story featured two tragic accidents that happened 4-5 years ago, and two families who were dissatisfied with the care we provided.
- I am not familiar with the details and so can't tell you any more than that.
What has the company done to fix the problems?
- Emeritus works hard to ensure that there are safeguards, systems, and policies and procedures in place to prevent these types of incidents.
- From time to time, a breakdown in these systems has resulted in an accident or care that doesn't live up to our high standard.
- Our communities work tirelessly to prevent foreseeable risks at our communities. When we fall short, we hold ourselves accountable and we fix the problems.
- Despite the picture Frontline has tried to portray, Emeritus continues to stand firmly behind, and believe strongly in, its employees and the quality of care they provide.
Emeritus has to pay millions in damages as a result of the California trial. Does this mean resident rates are going to go up?
- Absolutely not. Resident rates will not be tied to the damages.
How can I be confident something like this won't happen to my loved one?
- I hope you have seen how passionately we feel about providing outstanding care to your loved one and that you can tell that our residents are like family to us.
- We have extremely strict policies that are designed to ensure quality care, prevent risks and minimize error as much as possible.
- We also have very robust customer service systems in place to ensure that the residents' and families' needs are being met.
- Every year, we receive thousands of letters, e-mails and comments that credit us with improving and transforming lives for both our residents and their families.
- In addition to our annual inspection surveys, these letters are just one of the many testaments to our commitrnent to quality care and safety.
- Please know that the staff and leadership at this community are always available to you if you need to discuss any concerns or issues about the community or the staff.
ALL OTHER COMMUNITIES' MEDIA STATEMENT
Contact: ED Name
Community phone #
MEDIA STATEMENT
Statement for the Media by (ED name, ED title, Community name)
We have seen the recent Frontline program on the assisted living industry which included accounts of some isolated and unfortunate incidents that occurred at other Emeritus communities a few years ago. They were the rare exception to our company's outstanding record of serving more than a half million seniors over nearly two decades.
Despite the picture Frontline has tried to portray, Emeritus communities work tirelessly to provide the highest level of care to all residents. We also work hard to prevent foreseeable risks at our communities. When we fall short, we hold ourselves accountable and we fix the problems.
Emeritus Senior Living receives literally thousands of letters and emails each year from residents and families commending the care they receive at our communities. In addition to our annual inspection surveys, these letters are just one of the many testaments to our commitment to quality care and safety. Emeritus continues to stand firmly behind, and believe strongly in, our 30,000 employees and the quality of care they provide to our residents at our more than 480 communities in 45 states.
Update, August 2, 5:49 p.m.: Several current and former Emeritus employees did, in fact, post responses to our story. And we saw a spike in comments on July 31, when Emeritus sent a motivational email about responses to employees. Several had positive things to say about Emeritus, and some asserted that our investigation's findings were true. To make things easy, we rounded up their responses below.
[View the story "Emeritus Employee Reactions" on Storify]“They’re Not Treating Mom Well”
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Part 1The Emerald City
Part 2They're Not Treating Mom Well
Part 3A Sinking Ship
Part 4Close the Back Door
DocumentaryWatch the Film
More Back Behind the ScenesHow This Series Was Reported
Emeritus ResponseA Media Strategy to Thwart Federal Oversight
ProfilesThose Lost and Those Left Behind
Part 2
A Media Strategy to Thwart Federal Oversight
Life and Death in Assisted Living, Part 2 “They’re Not Treating Mom Well”
by A.C. THOMPSON, ProPublica and JONATHAN JONES, special to ProPublica, July 30, 2013
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OFFON (What's this?)When the ambulance crew arrived, about 8:20 p.m., Joan Boice was in the TV lounge, face-down on the carpet. Her head had struck the floor with some velocity; bruises were forming on her forehead and both cheeks. It appeared she’d lost her balance and fallen out of a chair.
But no one at the assisted living facility could say precisely how the accident had occurred. No one knew how long Joan had been splayed out on the floor. She had defecated and urinated on herself.
Worried that Joan might have injured her spine, the emergency medical personnel gently rolled her over and placed her on a back board. They pumped oxygen into her nostrils.
It was Sept. 22, 2008 — just 10 days after Joan had first moved into Emerald Hills.
No Emeritus employees accompanied Joan to the hospital. And even though Joan’s husband, Myron, was living in the facility, the Emeritus workers didn’t immediately alert him that Joan had fallen and hurt herself. Joan, confused, injured, and nearly mute, ended up in the local hospital by herself, surrounded by strangers.
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It was supposed to have been a festive night for Joan’s son Eric and his wife, Kathleen, who lived nearby. They were throwing a birthday party for their daughter, then in elementary school. The celebration was interrupted when a doctor called from the hospital with news of Joan’s fall. As Kathleen recalled it, the physician was somewhat baffled — he didn’t understand what Joan was doing in the emergency room without a family member, and he was having trouble deducing the extent of her injuries because she couldn’t communicate.
California law requires assisted living companies to conduct a “pre-admission appraisal” of prospective residents, to ensure they are appropriate candidates for assisted living.
But Emerald Hills took Joan in without performing an appraisal. It wasn’t for lack of time. The Boices had signed the contract to live at Emerald Hills more than two weeks before Joan moved in.
Joan, then, had taken up residence in the memory care unit at Emerald Hills. The unit — referred to as a “neighborhood” by the company — is a collection of about a dozen small apartments on either side of a central hallway. At each end of the hallway are heavy doors equipped with alarms, which sound when anyone enters or leaves. The alarm system is meant to prevent residents from simply walking off.
On the day Joan moved into Room 101 in the unit, a company nurse named Margaret “Peggy” Stevenson briefly looked her over. The nurse realized that Joan needed to be monitored closely to keep her from falling — she wrote it down in her cursory assessment — but facility records show she didn’t craft any kind of detailed plan for her care and supervision.
Stevenson, asked years later about Joan, said she could recall nothing about her or her stay at Emerald Hills.
Kathleen had immediate suspicions about Joan’s fall. The family, she said, had warned the facility not to leave Joan sitting in a chair without supervision because she was liable to try to stand up, lose her balance, and topple to the floor. Joan had fallen several times during an earlier stay in an assisted living facility near Sacramento, but the staff had developed a specific plan to address the issue.
Despite the warning, Kathleen said that when she visited Emerald Hills during Joan’s first days there she often found her mother-in-law sitting in a chair alone.
The recent track record at Emerald Hills featured a host of falls similar to Joan’s, and ambulances were often called to take the injured off to the hospital. Falls are a particular hazard for the elderly, and assisted living facilities like Emerald Hills are required to report them to state regulators.
Internal company records documented 112 falls at Emerald Hills in 2008. Some residents fell repeatedly.
Consider the case of one Emerald Hills resident, 83-year-old Dorothy “Dottie” Bullock.
On April 5, 2008, an Emeritus employee discovered Bullock “on the floor in a semi-seated position” in the memory care unit, according to a state report. She “was unable to tell” the worker what had happened to her. The incident was described as a fall in state records. Emerald Hills sent her to the hospital.
On April 7, Bullock, back at Emerald Hills, fell again, according to the handwritten log of her personal attendant, who was hired by Bullock’s husband to give her extra help.
On April 8, Bullock, complaining of pain, was hauled by ambulance back to the hospital. Doctors concluded that she’d fractured her pelvis, but soon returned her to Emerald Hills. She fell again on April 12.
Bullock would fall again months later, for the final time.
Emeritus records show Bullock tumbled in front of her apartment and was found on the carpet with her aluminum walker beneath her. Blood spilled from her nose and a “bump” developed on her forehead, according to the company documents. The impact broke a vertebra in Bullock’s neck and crushed her nasal bones and sinus structures, hospital records show. A CT scan revealed possible fractures of both eye-sockets and the base of the skull.
Dottie Bullock died in the emergency room.
While Emeritus recorded the fatality in its internal logs, the company did not report her death to state regulators, a violation of California law. The state requires assisted living facilities to file reports on all deaths, even those believed to be from natural causes, so that it can look into suspicious or troubling incidents.
Emeritus said it lacked information about Bullock’s death and thus could not say why it had occurred.
Bullock’s personal attendant, Julie Covich, says Bullock was not supervised properly.
“I think there was neglect,” said Covich, who usually visited Emerald Hills once or twice a week to help out Bullock. “I would go in there and never see a caregiver.”
“It was hard to find anyone that was running the place,” she said. “It was crazy.”
“Heads on the Beds”In early 2008, the year Joan Boice entered Emerald Hills, Emeritus rolled out a new business campaign. The company dubbed it the “No Barriers to Sales” effort.
The concept was straightforward: Move as many people as possible into Emeritus facilities. Wall Street was looking closely at the company’s quarterly occupancy numbers and a few percentage points could propel the stock price upward or send it tumbling down.
Has your loved one lived in an assisted living facility?With the housing market foundering, Emeritus needed to step up its sales efforts.
In case there was any confusion about just how seriously the company took this new campaign, a company vice president sent a blast email to facility directors across California. In the body of the email, the vice president got right to it: “SALES and your commitment to sales is your highest priority right now.” Facility directors, the message concluded, would be “held responsible for census and occupancy growth.”
Emeritus employees across the country realized they were entering a new era.
“There was a different sense of urgency. The tone was different,” said a former Emeritus manager who ran a facility at the time. “The message from above was put as many people as possible in the beds and make as much money as possible. That’s what they said. Verbatim. Honestly.”
According to Lisa Paglia, a regional executive in California at the time, Budgie Amparo, the company’s top official for quality control, was openly critical when a Northern California facility declined to admit someone who did not have a doctor’s evaluation.
Such evaluations, which are designed to keep out seniors with problems that assisted living facilities aren’t equipped to handle, are required under a California law known as Title 22.
But on a conference call with roughly half a dozen California managers, Paglia said, Amparo declared that the Northern California facility should have admitted the resident.
“Our priority,” Amparo declared, according to Paglia, “is to get the heads on the beds.”
The issue arose again in October 2008 during a training session for approximately 25 facility directors and salespeople held at an Emeritus property in Tracy, Calif. During the seminar, a company vice president reiterated Amparo’s instruction to disregard California law, according to court records and interviews.
The mandate prompted something of a staff revolt.
At least one facility director spoke out at the meeting: His license to operate the facility was at stake, he said.
An employee who worked at the Tracy facility eventually alerted California regulators. The state dispatched an investigator, and state records show that the investigator met with employees who confirmed that a company official had approved the practice of admitting someone without a doctor’s report. The investigator reviewed a random sample of seven resident files, finding that two people had been moved in illegally, documents show.
Amparo, a nurse whose full title is executive vice president of quality and risk management, denies directing employees to violate the regulation. In a written statement, Emeritus said, “Neither Budgie Amparo nor any of our other officers issued a directive to violate Title 22 or any other law. Emeritus does not condone allowing residents to move in without the proper documents.”
Emeritus eventually fired Paglia, and lawyers for the company have since portrayed her as a poor worker who failed to do her job competently. Along with two other former Emeritus employees, Paglia sued the company alleging wrongful termination, and wound up settling on secret terms.
For assisted living chains such as Emeritus, there is a powerful business incentive to boost occupancy rates and to take in sicker residents, who can be charged more.
Emeritus, for its part, rejects any suggestion that a quest for profits has tainted its admission practices. But in interviews, former Emeritus executives described a corporate culture that often emphasized cash flow above all else. The accounts of the executives, who spoke independently but anonymously, were strikingly consistent.
“It was completely focused on numbers and not human lives,” said one executive, who worked for Emeritus for more than three years and oversaw dozens of facilities in Eastern states.
The company’s emphasis on sales and occupancy rates, the executive said, transformed the workforce into “a group of people who were grasping at every single lever they could pull to drive profitability.”
Emeritus operates a sophisticated, data-driven sales machine. There are occupancy goals for each facility, as well as yearly company-wide goals. The company tracks dozens of data points — including every move-in and move-out of residents — in a vast database. It posts a monthly snapshot of each facility’s sales statistics on an internal website, allowing employees to see which strategies are most successful.
Sales specialists are instructed on how to use psychology to persuade potential customers to sign on. One suggestion: Give the customer “a sense of control and choice by offering two possible options.” A 2009 Emeritus sales manual, which runs 181 pages, encourages sales people to generate publicity by hosting seminars on Alzheimer’s or organizing charity efforts in the event of a natural disaster like a “flood or earthquake.”
Emeritus motivates its workforce with a broad range of financial incentives. There are bonuses for hitting monthly occupancy goals. Bonuses for hitting yearly occupancy goals. Bonuses for boosting overall earnings. And the money doesn’t just go to sales people: The company hands out checks to maintenance workers, nurses, facility directors and other workers.
Nurses play a key role in assisted living, providing much of the hands-on care. But nurses at Emeritus facilities are also expected to be deeply involved in increasing revenue by making sales.
During more than a year of reporting, ProPublica and PBS Frontline spoke to 10 facility directors who said nurses were required to participate in weekly conference calls focusing on little but economics. Those accounts are backed by an internal Emeritus document that lays out the agenda for the weekly calls and that shows an overarching concentration on finances.
Doris Marshall was at the forefront of Emeritus’s efforts to have nurses play the dual roles of caregivers and salespeople. After receiving her nursing license in 1984, Marshall had spent many years tending to patients in the emergency department of a Southern California hospital, and she’d later gone on to help run a nursing school.
Have you worked in an assisted living facility?But Marshall was intrigued by the assisted living business and in March 2008 she signed on to supervise 10 Emeritus properties scattered across Northern California. Amparo, the company’s head nurse, convinced Marshall to take the job, telling her nurses “had a voice” at Emeritus.
Marshall was to oversee the well-being of roughly 800 elderly people. But her job description went well beyond that: She was to help with “marketing” and “attaining financial goals.” Her job, in the end, actually involved very little nursing.
Instead, she said, she was drawn into Emeritus’s evolving strategies aimed at upping its revenues. The company planned to bring in more seniors with Alzheimer’s and dementia because they could be charged more, she said. Her boss gave her a digital tracking tool showing how much more money Emeritus could make by admitting sicker, frailer residents.
By the fall of 2010 Marshall was worn out and disillusioned. She quit.
Emeritus’s extraordinary drive to put heads in beds — perhaps routine in, say, the hotel industry — has distorted the admissions process at some facilities, records and interviews show. Since 2007, state investigators have cited the company’s facilities more than 30 times for housing people who should have been prohibited from dwelling in assisted living facilities.
A 2010 episode at an Emeritus facility in Napa highlighted the perils of improperly admitting people. The facility rented a room to a 57-year-old woman with an eating disorder, depression, bipolar disorder and a history of suicide attempts. The woman, who was distraught over the death of her husband, taped a note to her door saying she wasn’t to be disturbed and committed suicide, overdosing on an amalgam of prescription painkillers.
The state’s investigation into the death was scathing: the woman should never have been allowed to move in; the staff had missed or ignored bulimic episodes and her obvious weight loss; no plan of care was ever developed or implemented despite the resident’s profound psychological problems.
Emeritus, asked to respond to the state’s investigation, said only that the woman had overdosed on drugs she had brought into the facility on her own, and that as a result they could not be faulted in her death.
“She Barely Even Talked to Us”In the aftermath of her fall in September 2008, Joan returned to Emerald Hills. But the staff, inexperienced and often exhausted, worried about her.
“She couldn’t walk, she couldn’t feed herself, she barely even talked to us, and her health wasn’t that good,” recalled Jenny Hitt, a former medication technician at Emerald Hills.
But if concern was abundant at Emerald Hills, expertise was in short supply.
Alicia Parga ran Joan’s memory care unit. On some weekends, she managed the entire building — not only the wing of residents with dementia, but the rest of the three-story assisted living facility, one that could hold a total of more than 100 residents.
After Parga started on the job, it took Emeritus roughly 18 months to give her any training on Alzheimer’s and dementia. The state regulations were hardly substantial: Someone such as Parga was obligated to get six hours of training during her first four weeks on the job. But even that requirement wasn’t met.
Emeritus has insisted that Emerald Hills had properly trained personnel to care for Joan and others, and they described Parga as a woman deeply invested in tending to the residents.
But Parga, who had barely earned a high school degree, wasn’t even familiar with the seven stages of dementia. Though she was responsible for the well-being of 15 or more seriously impaired people, as well as the supervision of employees, Parga was paid less than $30,000 per year.
Catherine Hawes, a health care researcher at Texas A&M University, conducted the first national study of assisted living facilities. In her view, training is absolutely crucial. A well-educated employee can “interpret non-verbal cues” from people like Joan, intercept seniors before they wander away from the building, or keep residents from eating or drinking poisonous substances.
“You can do great care,” she said. “You just — you’ve got to know how.”
Other than the Emeritus employees working in the memory care unit at Emerald Hills, only one person saw Joan enough to know what kind of daily care she was getting: Her husband, Myron.
He was worried. And he did his best to sum up his concerns to his son Eric:
“They’re not treating Mom well.”
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Have You Worked In an Assisted Living Facility?
As part of ProPublica’s ongoing reporting into the assisted living industry, we know that a vital perspective will come from the people who made those facilities run. If you’ve worked at an assisted living facility, you can help our investigation by sharing your expertise, and telling us what you think we should investigate. We promise we’ll keep your information confidential.
If you have concerns sharing your story here, please feel free to contact reporter A.C. Thompson at A.C.Thompson@propublica.org
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Part 1The Emerald City
Part 2They're Not Treating Mom Well
Part 3A Sinking Ship
Part 4Close the Back Door
DocumentaryWatch the Film
More Back Behind the ScenesHow This Series Was Reported
Emeritus ResponseA Media Strategy to Thwart Federal Oversight
ProfilesThose Lost and Those Left Behind
Part 1
A Media Strategy to Thwart Federal Oversight
Life and Death in Assisted Living, Part 1 “The Emerald City”
by A.C. THOMPSON, ProPublica and JONATHAN JONES, special to ProPublica, July 29, 2013
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OFFON (What's this?)Joan Boice needed help. Lots of it. Her physician had tallied the damage: Alzheimer’s disease, high blood pressure, osteoporosis, pain from a compression fracture of the spine. For Joan, an 81-year-old former schoolteacher, simply getting from her couch to the bathroom required the aid of a walker or wheelchair.
The Alzheimer’s, of course, was the worst. The disease had gradually left Joan unable to dress, eat or bathe without assistance. It had destroyed much of the complex cerebral circuitry necessary for forming words. It was stealing her voice.
Joan’s family was forced to do the kind of hard reckoning that so many American families must do these days. It was clear that Joan could no longer live at home. Her husband, Myron, simply didn’t have the stamina to provide the constant care and supervision she needed. And moving in with any of their three children wasn’t an option.
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These were the circumstances that eventually led the Boice family to Emeritus at Emerald Hills, a sprawling, three-story assisted living facility off Highway 49 in Auburn, Calif. The handsome 110-bed complex was painted in shades of deep green and cream, reflecting its location on the western fringe of the craggy, coniferous Sierra Nevada mountain range. It was owned by the Emeritus Corp., a Seattle-based chain that was on its way to becoming the nation’s largest assisted living company, with some 500 facilities stretching across 45 states.
Emeritus at Emerald Hills promised state-of-the art care for Joan’s advancing dementia. Specially trained members of the staff would create an individual plan for Joan based on her life history. They would monitor her health, engage her in an array of physically and mentally stimulating activities, and pass out her 11 prescription medications, which included morphine (for pain) and the anti-psychotic drug Seroquel (given in hopes of curbing some of the symptoms of her Alzheimer’s). She would live in the “memory care” unit, a space designed specifically to keep people with Alzheimer’s and other forms of dementia safe.
At Emerald Hills, the setting was more like an apartment complex than a traditional nursing home. It didn’t feel cold or clinical or sterile. Myron could move in as well, renting his own apartment on the other side of the building; after more than 50 years of marriage, the couple could remain together.
Sure, the place was expensive — the couple would be paying $7,125 per month — but it seemed ideal.
During a tour, a salesperson gave Myron and his two sons, Eric and Mark, a brochure. “Just because she’s confused at times,” the brochure reassured them, “doesn’t mean she has to lose her independence.”
Here are a few things the brochure didn’t mention:
Just months earlier, Emeritus supervisors had audited the facility’s process for handling medications. It had been found wanting in almost every important regard. And, in truth, those “specially trained” staffers hadn’t actually been trained to care for people with Alzheimer’s and other forms of dementia, a violation of California law.
The facility relied on a single nurse to track the health of its scores of residents, and the few licensed medical professionals who worked there tended not to last long. During the three years prior to Joan’s arrival, Emerald Hills had cycled through three nurses and was now employing its fourth. At least one of those nurses was alarmed by what she saw, telling top Emeritus executives — in writing — that Emerald Hills suffered from “a huge shortage of staff” and was mired in “total dysfunction.”
During some stretches, the facility went months without a full-time nurse on the payroll.
The paucity of workers led to neglect, according to a nurse who oversaw the facility before resigning in disgust. Calls for help went unanswered. Residents suffering from incontinence were left soaking in their own urine. One woman, addled by dementia, was allowed to urinate in the same spot in the hallway of the memory care wing over and over and over.
The brochure also made no mention of the company’s problems at its other facilities. State inspectors for years had cited Emeritus facilities across California, faulting them for failing to employ enough staff members or adequately train them, as well as for other basic shortcomings.
Emeritus officials have described any shortcomings as isolated, and insist that any problems that arise are promptly addressed. They cite the company’s growing popularity as evidence of consumer satisfaction. They say that 90 percent of people who take up residence in assisted living facilities across the country report being pleased with the experience.
Certainly, the Boice family, unaware of the true troubles at Emerald Hills, was set to be reassured.
“We were all impressed,” recalled Eric Boice, Joan’s son. “The first impression we had was very positive.”
And so on Sept. 12, 2008, Joan Boice moved into Room 101 at Emerald Hills. She would be sharing the room with another elderly woman. After a succession of tough years, it was a day of great optimism.
Measuring the dimensions of his mother’s new apartment, Eric Boice sought to recreate the feel of her bedroom back home. He arranged the furniture just as it had been. He hung her favorite pictures in the same spots on the wall. On her dresser, he set out her mirror and jewelry box and hairbrush.
Joan, 5-foot-2 and shrinking, had short snow-and-steel hair and wintry gray-blue eyes. Eric looked into those eyes that day at Emerald Hills. He thinks he might have seen a flicker of fear. Or maybe it was just confusion, his mom still uncertain where, exactly, she was.
A Reform Movement Winds Up on Wall StreetThe Emeritus Corp., the assisted living corporation now entrusted with Joan’s life, sat atop an exploding industry.
Two decades earlier, Keren Brown Wilson had opened the nation’s first licensed assisted living facility in Canby, Ore., a small town outside of Portland. Wilson was inspired by tragedy: A massive stroke had paralyzed her mother at the age of 55, forcing her into a nursing home, where she was miserable, spending the bulk of her days confined to a hospital bed.
Wilson aimed to create an alternative to nursing homes. She envisioned comfortable, apartment building-style facilities that would allow sick and fragile seniors to maintain as much personal autonomy as possible.
“I wanted a place where people could lock the door,” Wilson explained. “I wanted a place where they could bring their belongings. I wanted a place where they could go to bed when they wanted to. I wanted a place where they could eat what they wanted.”
These “assisted living” facilities would offer housing, meals and care to people who could no longer live on their own but didn’t need intensive, around-the-clock medical attention. The people living in these places would be called “residents” — not patients.
It took Wilson nine years to persuade Oregon legislators to rewrite the state’s laws, a crucial step toward establishing this new type of facility. After that, states across the country began adopting the “Oregon model.”
But what began as a reform movement quickly morphed into a lucrative industry. One of the early entrants was Emeritus, which got into the assisted living business in 1993, opening a single facility in Renton, Wash. The company’s leader, Daniel Baty, had his eyes on something much grander: He was, he declared, aiming to create a nationwide chain of assisted living facilities.
Two years later, Baty took the corporation public, selling shares of Emeritus on the American Stock Exchange, and piling up the cash necessary to vastly enlarge the company’s footprint. Many of Emeritus’s competitors followed the same path.
The company’s rapid growth was, at least in part, a reflection of two significant developments. Americans were living longer, with the number of those in the 65-plus age bracket ballooning further every year. And this growing population of older Americans was willing to spend serious money, often willing to drain their bank accounts completely to preserve some semblance of independence and dignity — in short, something of their former lives.
Has your loved one lived in an assisted living facility?As the assisted living business flourished, the federal government, which oversees nursing homes, left the regulation of the new industry to the states, which were often unprepared for this torrent of expansion and development. Many states didn’t develop comprehensive regulations for assisted living, choosing instead to simply tweak existing laws governing boarding homes.
In this suddenly booming, but haphazardly regulated industry, no company expanded more aggressively than Emeritus. By 2006, it was operating more than 200 facilities in 35 states. The corporation’s strategy included buying up smaller chains, many of them distressed and financially troubled, with plans to turn them around.
Wall Street liked the model. Market analysts touted the virtues of the company and its stock price floated skyward. One of the corporation’s appeals was that its revenues flowed largely from private bank accounts; unlike hospitals or nursing homes, Emeritus wasn’t reliant on payments from the government insurance programs Medicare or Medicaid, whose reimbursement rates can be capped. As the company noted in its 2006 annual report, nearly 90 percent of its revenues came from “private pay residents.”
In filings with the Securities and Exchange Commission and in conference calls with investors, Emeritus highlighted many things: occupancy rates; increasing revenue; a constant stream of complex real estate deals and acquisitions; the favorable demographic trends of an aging America.
“The target market for our services is generally persons 75 years and older who represent the fastest growing segments of the U.S. population,” Emeritus stated in a 2007 report filed with the SEC.
Today, the assisted living industry rivals the scale of the nursing home business, housing nearly three-quarters of a million people in more than 31,000 assisted living facilities, according to the U.S. Department of Health and Human Services.
Keren Brown Wilson, the early and earnest pioneer of assisted living, is happy that ailing seniors across the country now have the chance to spend their final years in assisted living facilities, rather than nursing homes. But in her view, the rise of assisted living corporations — with their pursuit of investment capital and their need to please shareholders — swept in “a whole new wave of people” more focused on “deals and mergers and acquisitions” than caring for the elderly.
She speaks from experience. After her modest start, Wilson went on to lead a company called Assisted Living Concepts, and took it onto the stock market. Wilson left the company in 2001, and it has encountered a raft of regulatory and financial problems over the last decade.
“I still have a lot of fervor,” said Wilson, who now runs a nonprofit foundation and teaches at Portland State University. “I believe passionately in what assisted living can do. And I’ve seen what it can do. But for some of the people, it’s just another job, or another business. It’s not a passion.”
“A Phenomenal Deal”Joan Boice, born Joan Elizabeth Wayne, grew up in Monmouth, Ill. It was a tiny farm belt community, not far from the Iowa border. Her father, a fixture in the local agriculture trade, owned a trio of riverfront grain elevators on the Mississippi and a fleet of barges. As a teenager, she spent her summers trudging through the fields, de-tasseling corn.
In 1952, accompanied by a friend, Joan packed up a car and followed the highway as far west as it would go. Then in her early 20s, she was propelled by little more than the notion that a different life awaited her in California. In a black-and-white snapshot taken shortly after she arrived, Joan is smiling, a luxuriant sweep of dark hair framing her pale face, gray waves curling in the background. It was the first time she’d seen the Pacific.
Joan had been a teacher for two years in Illinois, and she quickly found a job at an elementary school in Hayward, a suburb of San Francisco. In certain regards, her outlook presaged the progressive social movements that were to remake the country during the next two decades. She viewed education as a “great equalizing force” that could help to remake a society far too stratified by class, race and gender.
“She was just free-spirited and confident,” Eric, her son, said.
Joan met Myron Boice through a singles group at a Presbyterian church in Berkeley. On their wedding day, Joan flouted convention by showing up in a blue dress. The Boice children came along fairly quickly: Nancee, then Mark, then Eric.
Myron Boice was a dreamer. A chronic entrepreneur. He sold tools from a van. He made plans to open restaurants. He had one idea after another. Some worked; others didn’t.
Joan’s passion for education never dissipated. Even in her late 60s, she continued to work as a substitute teacher in public schools. After retirement, she began volunteering with a childhood literacy program.
But age eventually tightened its grip, and hints of a mental decline began surfacing around 2005. Eric grew worried when she couldn’t figure out how to turn on her computer twice in the span of a few months. Then she forgot to include a key ingredient while baking a batch of Christmas cookies. The cookies were inedible.
The elderly couple was still living in the San Francisco suburbs, when, in late 2006, a doctor diagnosed Joan with Alzheimer’s. As her mind deteriorated, Myron struggled to meet her needs. The situation was worsened by the fact that none of the children lived nearby. Mark was in Ohio. Nancee was about an hour away in Santa Cruz. And Eric and his wife, Kathleen, were roughly two hours away in the foothills of the Sierra.
Have you worked in an assisted living facility?“We offered my parents to come and live with us,” Eric recalled. But Myron said no. He and Joan wouldn’t move in with any of the kids. The family patriarch refused to become a burden.
A physician encouraged Joan and Myron to consider assisted living. It made sense. And so Myron sold their home in 2007 and the couple moved into a facility called The Palms, near Sacramento. The move put them approximately 40 minutes away from Eric and Kathleen.
“They were very attentive to every single thing she needed,” Kathleen Boice said of the staff at The Palms. “They actually re-taught her to eat with a fork and a knife.”
By 2008, however, Myron wanted a change. He wanted to be closer to his son and daughter-in-law and grandkids. He wanted different meals, a new environment. Myron began hunting for a new place to live, a search that led to Emeritus at Emerald Hills in Auburn.
Emeritus opened the Emerald Hills complex in 1998. It was, in many ways, a classic Emeritus facility, situated in a middle-class locale that was neither impoverished nor especially affluent. It was a sizable property, capable of housing more than 100 people.
In part because of its appetite for expansion, Emeritus was in the early stages of what proved to be a period of enormous stress. In 2007, the company had made its biggest acquisition to date, buying Summerville Senior Living Inc., a California-based chain with 81 facilities scattered across 13 states.
The purchase — which expanded Emeritus’s size by roughly one-third — helped the company make another major leap, bouncing from the low-profile American Stock Exchange into the big leagues of commerce, the New York Stock Exchange. News of the Summerville deal propelled the company’s stock to a new high. Emeritus was poised to become the nation’s No. 1 assisted living chain.
But the timing for this bold move turned out to be wretched. The real estate market was freezing up, and it would soon collapse, plunging the nation into an epochal recession. For Emeritus, the economic slowdown and then the housing crash posed direct challenges. Its services didn’t come cheap, so many people needed to sell their homes before they could afford to move into the company’s facilities. With the real estate market calcified, Emeritus’s customer pool shrank.
“Our stock price plummeted,” recalled Granger Cobb, Emeritus’s chief executive officer, who joined the company as part of the Summerville deal. The company’s occupancy rates had been trending skywards. Now they went flat.
At Emerald Hills, the economic slowdown that summer was making life tough for Melissa Gratiot, the lead sales agent.
“It was way harder to move residents in,” she remembered.
But there was some good news. She was close to a significant sale, this one to a couple. Gratiot worked the pitch. She talked with the family. She emailed. She gave them a tour of the facility’s memory care unit, called The Emerald City. She told the family she’d received approval from higher ups to offer the family “a phenomenal deal.”
Gratiot closed the sale. On Aug. 29, 2008, Myron and Eric signed the contract, and the family opened its wallet: A $2,500 initial move-in fee; $2,772 for Joan's first two weeks in Room 101; another $1,660 for Myron.
There had been one oversight, though. No one at Emeritus with any medical training had ever even met Joan, much less determined whether Emerald Hills could safely care for her.
Correction (7/29): An earlier version of this story stated that Emeritus at Emerald Hills had failed a company audit of its memory care unit before Joan Boice moved in. It has been corrected to say an audit found flaws in the facility’s medication handling process before Boice moved in. The memory care unit was audited while Boice was living there and failed nearly every important test.
NEXT PART: They're Not Treating Mom Well Don't miss the next chapter. Sign up for ProPublica's daily newsletter. var disqus_shortname = 'propublica'; var disqus_identifier = '25829'; (function() { var dsq = document.createElement('script'); dsq.type = 'text/javascript'; dsq.async = true; dsq.src = '//' + disqus_shortname + '.disqus.com/embed.js'; (document.getElementsByTagName('head')[0] || document.getElementsByTagName('body')[0]).appendChild(dsq); })(); Please enable JavaScript to view the comments powered by Disqus. blog comments powered by DisqusHas Your Loved One Lived In an Assisted Living Facility?
Months after Joan Boice, a former schoolteacher, checked into Emerald Hills assisted living facility, she was dead. She had suffered from a range of health ailments, including Alzheimer’s, when she checked in. But as our recent investigation shows, neglect and a swarm of bedsores, improperly cared for by staff, likely contributed to her death.
Joan is not alone. The assisted living industry is a growing, multibillion dollar industry that serves nearly 750,000 people across the country – yet it’s loosely regulated. That’s why we’re looking into how the push for profits may be affecting quality care.
If your loved one has lived in an assisted living facility, you can help our ongoing reporting by sharing your story below. We promise we’ll keep your information confidential.
If you have concerns sharing your story here, please feel free to contact reporter A.C. Thompson at A.C.Thompson@propublica.org
Who Are We at War With? That’s Classified
In a major national security speech this spring, President Obama said again and again that the U.S. is at war with “Al Qaeda, the Taliban, and their associated forces.”
So who exactly are those associated forces? It’s a secret.
At a hearing in May, Sen. Carl Levin, D-Mich., asked the Defense Department to provide him with a current list of Al Qaeda affiliates.
The Pentagon responded – but Levin’s office told ProPublica they aren’t allowed to share it. Kathleen Long, a spokeswoman for Levin, would say only that the department’s “answer included the information requested.”
A Pentagon spokesman told ProPublica that revealing such a list could cause “serious damage to national security.”
“Because elements that might be considered ‘associated forces’ can build credibility by being listed as such by the United States, we have classified the list,” said the spokesman, Lt. Col. Jim Gregory. “We cannot afford to inflate these organizations that rely on violent extremist ideology to strengthen their ranks.”
It’s not an abstract question: U.S. drone strikes and other actions frequently target “associated forces,” as has been the case with dozens of strikes against an Al Qaeda offshoot in Yemen.
During the May hearing, Michael Sheehan, Assistant Secretary of Defense for Special Operations and Low-Intensity Conflict, said he was “not sure there is a list per se.” Describing terrorist groups as “murky” and “shifting,” he said, “it would be difficult for the Congress to get involved in trying to track the designation of which are the affiliate forces” of Al Qaeda.
Sheehan said that by the Pentagon’s standard, “sympathy is not enough…. it has to be an organized group and that group has to be in co-belligerent status with Al Qaeda operating against the United States.”
The White House tied Al Qaeda in the Arabian Peninsula and “elements” of Al Shabaab in Somalia to Al Qaeda in a recent report to Congress on military actions. But the report also included a classified annex.
Jack Goldsmith, a professor at Harvard Law who served as a legal counsel during the Bush administration and has written on this question at length, told ProPublica that the Pentagon’s reasoning for keeping the affiliates secret seems weak. “If the organizations are ‘inflated’ enough to be targeted with military force, why cannot they be mentioned publicly?” Goldsmith said. He added that there is “a countervailing very important interest in the public knowing who the government is fighting against in its name."
The law underpinning the U.S. war against Al Qaeda is known as the Authorization for Use of Military Force, or AUMF, and it was passed one week after the 9/11 attacks. It doesn’t actually include the words “associated forces,” though courts and Congress have endorsed the phrase.
As we explained earlier this year, the emergence of new or more loosely-aligned terrorist groups has legal scholars wondering how effectively the U.S. will be able to “shoehorn” them into the AUMF. During the May hearing, many lawmakers expressed concern about the Pentagon’s capacious reading of the law. Sen. John McCain, R-Ariz., described it as a “carte blanche.”
Obama, in his May speech, said he looked forward “to engaging Congress and the American people in efforts to refine, and ultimately repeal, the AUMF’s mandate.” But he didn’t give a timeframe. On Wednesday, Rep. Adam Schiff, D-Calif., introduced an amendment that would sunset the law at the end of 2014, to coincide with the U.S. withdrawal from Afghanistan. It was voted down the same day, 185 to 236.
The AUMF isn’t the only thing the government relies on to take military action. In speeches and interviews Obama administration officials also bring up the president’s constitutional power to defend the country, even without congressional authorization.
Six Ways Congress May Reform NSA Snooping
Although the House defeated a measure that would have defunded the bulk phone metadata collection program, the narrow 205-217 vote showed that there is significant support in Congress to reform NSA surveillance programs. Here are six other legislative proposals on the table.
1) Raise the standard for what records are considered “relevant”
The Foreign Intelligence Surveillance Court has reportedly adopted a broad interpretation of the Patriot Act, ruling that all the records in a company’s database could be considered “relevant to an authorized investigation.” The leaked court order compelling a Verizon subsidiary to turn over all its phone records is just one example of how the Foreign Intelligence Surveillance Court has interpreted the statute.
Both Rep. John Conyers, D-Mich., and Sen. Bernie Sanders, I-Vt., have introduced bills requiring the government to show “specific and articulable facts” demonstrating how records are relevant. Similarly, legislation introduced by Sen. Mark Udall, D-Colo., would require any applications to include an explanation of how any records sought are relevant to an authorized investigation.
2) Require NSA analysts to obtain court approval before searching metadata
Once the NSA has phone records in its possession, Sen. Dianne Feinstein has explained that NSA analysts may query the data without individualized court approvals, as long as they have a “reasonable suspicion, based on specific facts” that the data is related to a foreign terrorist organization.
A bill from Rep. Stephen Lynch, D-Mass., would require the government to petition the Foreign Intelligence Surveillance Court every time an analyst wants to search telephone metadata. From there, a surveillance court judge would need to find “reasonable, articulable suspicion” that the search is “specifically relevant to an authorized investigation” before approving the application. The legislation would also require the FBI to report monthly to congressional intelligence committees all the searches the analysts made.
3) Declassify Foreign Intelligence Surveillance Court opinions
Right now, court opinions authorizing the NSA surveillance programs remain secret. Advocacy groups have brought several Freedom of Information Act suits seeking the release of Foreign Intelligence Surveillance Court documents, but the Justice Department continues to fight them.
Several bills would compel the secret court to release some opinions. The Ending Secret Law Act — both the House and Senate versions — would require the court to declassify all its opinions that include “significant construction or interpretation” of the Foreign Intelligence Surveillance Act. Under current law, the court already submits these “significant” opinions to congressional intelligence committees, so the bill would just require the court to share those documents with the public.
The bills do include an exception if the attorney general decides that declassifying an opinion would threaten national security. In that case, the court would release an unclassified summary of the opinion, or — if even offering a summary of the opinion would pose a national security threat — at least give a report on the declassification process with an “estimate” of how many opinions must remain classified.
Keep in mind, before Edward Snowden’s disclosures, the Justice Department argued that all “significant legal interpretations” needed to remain classified for national security reasons. Since the leaks, the government has said it’s now reviewing what, if any, documents can be declassified, but they said they need more time.
4) Change the way Foreign Intelligence Surveillance Court judges are appointed
Current law does not give Congress any power to confirm Foreign Intelligence Surveillance Court judges. Instead, the chief justice of the United States appoints the judges, who all already serve on the federal bench. The judges serve seven-year terms. Chief Justice John Roberts appointed all 11 judges currently serving on the court – ten of whom were nominated to federal courts by Republican presidents.
A bill introduced by Rep. Adam Schiff, D-Calif., would give the president the power to appoint surveillance court judges and give the Senate power to confirm. The president would also choose the presiding judge of the surveillance court, with Senate approval.
Alternatively, Rep. Steve Cohen, D-Tenn., has offered a bill that would let the chief justice appoint three judges and let the House Speaker, the House minority leader, the Senate majority leader, and the Senate minority leader each appoint two judges.
5) Appoint a public advocate to argue before the Foreign Intelligence Surveillance Court
Currently, the government officials petitioning the Foreign Intelligence Surveillance Court do not face an adversarial process. Surveillance targets do not have representation before the court, and they are not notified if a court order is issued for their data.
In 33 years, the surveillance court only rejected 11 of an estimated 33,900 government requests, though it the government has also modified 40 of the 1,856 applications in 2012.
Two former Foreign Intelligence Surveillance Court judges – Judge James Robertson and Judge James Carr – have argued that Congress should appoint a public advocate to counter the government’s arguments. Carr wrote in the New York Times, “During my six years on the court, there were several occasions when I and other judges faced issues none of us had encountered before. […]Having lawyers challenge novel legal assertions in these secret proceedings would result in better judicial outcomes.”
Sen. Richard Blumenthal, D-Conn., has promised to introduce a bill that would provide a “special advocate” to argue on behalf of privacy rights and give “civil society organizations” a chance to respond before the surveillance court issues significant rulings.
The surveillance court can actually invite advocates to argue before the court, as the Supreme Court did when the Obama administration refused to defend the Defense of Marriage Act.
“There’s nothing in law that would prevent the FISA court from hiring an advocate as an additional advisor to the court, except the need to obtain security clearances for that advocate, which would have to be granted by the executive branch,” explained Steven Bradbury, who served as the head of the Office of Legal Counsel in the Department of Justice from 2005 to 2009.
Bradbury has argued that the surveillance court may not need a permanent public advocate because its legal advisers already fulfill that role.
6) End phone metadata collection on constitutional grounds
The Justice Department has maintained that mass phone metadata collection is “fully consistent with the Fourth Amendment.” That reasoning is based on the 1979 Supreme Court decision Smith v. Maryland, where the Court found that the government does not need a warrant based on probable cause to collect phone records. The Court reasoned that whenever you dial a phone number, you voluntarily share that phone number with a telecom, and you can’t reasonably expect a right to privacy for information shared with third parties. As a result, the Court ruled that the collection of phone records is not a “search” and does not merit protection under the Fourth Amendment.
Sen. Rand Paul, R-Ky., has introduced a bill declaring that the Fourth Amendment “shall not be construed to allow any agency of the United States Government to search the phone records of Americans without a warrant based on probable cause” — effectively shutting down the NSA’s phone metadata collection program.
Senator Presses Consumer Bureau on Installment Lender World Finance
During a Senate committee hearing Wednesday afternoon, Sen. Ron Wyden, D-Ore., pressed a top official from the Consumer Financial Protection Bureau on what can be done to address abuses by installment lenders. Like Payday lenders, installment loan companies often trap borrowers in a cycle of debt, charging effective annual rates that can exceed 200 percent. Wyden pointed to ProPublica’s story from May that focused on one of America’s largest installment lenders, World Finance:
Our investigation – published together with our partner, Marketplace – found that lenders such as World often load their loans with insurance products that can double their cost. They also profit by persuading borrowers to use the product like a credit card, renewing loans over and over, leading to ballooning extra fees and interest. World boasts more than 800,000 customers, while the broader installment loan industry claims more than 10 million.
“So what can be done about World Acceptance?” asked Wyden, referring to the company’s corporate name. “Is there anything else that you need to do, that Congress needs to do, that regulators need to do?”
David Silberman, the CFPB’s associate director for research, markets, and regulations, gave the same answer the CFPB gave us when we first published our story: The CFPB has broad authority to crack down on non-bank lenders like World for breaking broad consumer protection laws, but the bureau does not yet conduct regular examinations of installment lenders such as World – though it could in the future.
Silberman declined to say whether any particular company was or was not being investigated. Wyden pressed for more information in writing, and Silberman promised to provide it within a couple weeks.
The hearing was held by the Senate Special Committee on Aging and focused on how payday and other high-cost loans impact seniors.
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