Back to mobile

The Whole Star

swings
Vivian Farinazzo

Is the state agency charged with guarding Texas’ abused kids trying to privatize services needlessly?

The Department of Family and Protective Services continues to push forward on a plan to bring on more private companies—despite evidence that its effort to overhaul the state’s foster care system is faltering. Many advocates think recent turmoil with Providence Services Corporation, the first contractor tapped by the state to oversee a portion of the foster care system, suggests the experiment is already a failure. The next stage in “foster care redesign,” as the state calls it, is set to take effect this month when another private company takes over a seven-county North Texas region including Fort Worth. Instead, critics argue the Legislature should invest more money in a state-run system and work out the issues without the involvement of private companies.

The need for reform in foster care is not in question. In the fiscal year spanning September 2012 to September 2013, 10 children died from abuse or neglect while under state care. In fiscal year 2014, three children died, including 6-year-old Jenetta Smith and her brother, 4-year-old Riley. Both children drowned in Lake Georgetown in July, under the care of a foster family monitored by Providence. Until August, when Providence abruptly pulled out of its five-year contract, the company was in charge of a rural 60-county region in West Texas that the state now must again oversee.

Foster care redesign was meant to eliminate the rise in child deaths and streamline foster care services provided by a multitude of sub-contractors. In 2011, the Texas Legislature passed a bill allowing DFPS to shift the administration of its more than 300 privately owned child placement agencies—responsible for recruiting and monitoring foster placements—to lead companies, like Providence. Each “lead” company manages a certain region of the state. The goal is to keep children closer to their siblings and home communities, and avoid bouncing them from one home to the next.

In June, the Texas Sunset Commission, which looks into the efficacy of state agencies, released an excoriating report on DFPS. The report noted that foster care redesign is a “risky endeavor” that has no long-term comprehensive plan. Redesign “presents inherent challenges and risks to DFPS and to the state,” the report warned. “If a contractor fails or pulls out of the contract, DFPS is then faced with the difficult task of assuming the contractor’s responsibilities temporarily while the agency procures a new contract.”

That’s exactly what happened with Providence. In August, the company ended its contract with the state, citing a lack of services in its assigned region, such as residential treatment centers and adequate transportation for children. Providence also had IT system issues and was $2 million over budget.

The state has reclaimed responsibility for keeping track of the 1,100 foster children already in the system as well as any incoming children removed from homes due to abuse and neglect. The department intends to continue providing some of the services Providence was implementing in its redesign effort, but has no plans yet to tap another contractor to take over the region. But if the state can handle what it hired a private agency to do in the first place, what’s the point of moving forward with privatization?

Ashley Harris from child welfare non-profit Texans Care for Children says the state may be able to continue running Providence’s programs effectively.

“If the Legislature gives DFPS the funding it needs, I think the agency can meet those goals without spending extra money to go through the middleman contractor,” Harris said. “Certainly it would have been easier if they had done it in the first place rather than coming in to pick up the pieces after Providence pulled out. If they are successful, it would be another reason not to go back to the redesign approach.”

But Family and Protective Services Commissioner John Specia continues to push privatization as the only solution to fixing the system.

In a recent video to DFPS employees following Providence’s contract termination, Specia struck a reassuring tone:

“We’re going to continue because foster care redesign is an essential process for this department. We must improve the way we deliver foster care services and we’re doing that through rolling out foster care redesign,” he said. “We’re going to have steps and missteps but we’re going to keep going forward to improve the system for our children and families.”

The second company to take up foster care reform, the non-profit Our Community Our Kids, began accepting new children who need placement into homes on Sept. 1.

Wayne Carson, CEO of the Our Community Our Kids parent organization ACH Child and Family Services, said his team has learned from Providence’s mistakes. One of the most important lessons, Carson said, was the power of a good IT infrastructure, which helps keep track of key information on foster children in the region. Providence had issues with IT system accessibility early on and had to manually enter each child’s information as it obtained it from each child-placing agency.

“You need good information to make good decisions about children, to be able to follow children to make sure they’re getting the kind of care they deserve and to know where your foster homes are so you can place children in their neighborhoods,” Carson said.

One issue, which Providence also faced, continues: the state’s refusal to spend more money for more services. Carson said Our Community Our Kids knew it would have to invest extra money from the beginning. The 2011 legislation mandated that lead agencies work with the same level of funding that the state had used to run the old system in each region, despite the mandate for more services. The state budgeted a one-time amount of $208,000 for startup costs, but Our community Our Kids had to front between $800,000 and $1 million more.

But Carson is confident Our Community Our Kids has enough experience and rapport with the community to make privatization work.

“Foster care redesign is a way to help coordinate the system of care,” Carson said. “We’ve been able to create better access to services that already existed for children that, because the system was so fragmented and there was no cohesion among providers, it was difficult to make that happen.”

Diana Martinez with TexProtects, another non-profit geared toward helping Texas children, said meeting the goals set forward by redesign is a necessary part to keeping children safe, no matter who’s in charge of it.

“Something definitely needs to change,” Martinez said. “If it’s through private providers that’s great, if it’s the state being able to put more money into foster care so that we can build up those types of resources that we need, that’s great too.”

Texas Rangers pose on a South Texas ranch in 1915 after one of their notorious "bandit raids."
The Robert Runyon Photograph Collection, image 00097, courtesy of The Center for American History, The University of Texas at Austin
Texas Rangers pose on a South Texas ranch in 1915 after one of their notorious "bandit raids."

 
The far ends of our colorful political spectrum rarely cause me much worry. I trust the armed militias reportedly roaming the U.S.-Mexico border and the convoy of flag-waving protesters from Murrieta, California that traveled to the Rio Grande Valley will keep their rightful place on the fringe of our political conversation. It’s the center that I watch closely. That’s the contentious territory where ideas and notions from dark chapters in Texas history often reappear, redefining our sense of normalcy and decency.

The migration of extreme notions into the mainstream was recently laid bare in a Newsweek cover story that described ranchers who are “hunting humans” as simply “dealing first-hand with the problems caused by the influx of undocumented immigrants.” The piece, “Hunting Humans: The Americans Taking Immigration Into Their Own Hands” was reported from Brooks County some 70 miles north of the border in South Texas, and quotes three ranchers—Michael and Linda Vickers and another who went only by “B.J.” Not apparently comfortable enough to use her full name, B.J. refers to migrants as if they were prey.

“It’s a cat-and-mouse game,” says B.J. with a grin, driving through ranch trails. Her Heckler & Koch P2000 pistol rests in the cup holder next to her right knee. She starts by looking for footprints—they are most noticeable on the sand tracks she has set up next to the trails that she smooths by dragging tires. When she sees a fresh set, she speeds through the trails, finds the migrants, chases after them until they tire out, corners them and then yells, “Pa’bajo!”—Spanish for down.

Seven years ago The Texas Observer reported, “like some other ranchers, [Michael] Vickers has installed a faucet near a windmill and painted it blue to make it easier for trespassers to find and drink from easily.”

That humanitarian provision, later described in the Newsweek article, is nonetheless part of an attitude that equates people with animals: “In any case, says Vickers, the windmills provide a water source which is safe for cattle, and therefore for migrants.”

Last year, U.S. News and World Report described Vickers’ group as “simply back-up for U.S. Border Patrol. The goal of the volunteers is not to engage with the ‘criminal trespassers,’ as they call them, but alert border patrol of their findings.” One year later, the ranchers are described as hunting migrants while laying out traps and chasing them down. Maybe these ranchers viewed the migrants not simply as trespassers but as prey all along and now they feel free to express such opinions. It’s difficult to know. But reporters who had interviewed the Vickers before told me they were alarmed at what they described as a sharp shift in rhetoric.

The press becomes complicit in ushering extreme ideas into the center when “hunting humans” is treated as acceptable behavior and counterbalanced with images of ranchers installing life-saving water barrels for migrants. It is a false balance.

Nearly 90 percent of the population in Brooks County is Latino, with five percent foreign born. Many ranches predate the U.S.-Mexico War. And when I read those quotes I’m reminded of the image of a group of Texas Rangers mounted on horseback, the ends of their rope tied around the ankles of three ‘Mexican bandits’ laying face down on the ground. Prized game. The image, captured near Brooks County a little over a century ago, was sold as a postcard and distributed widely.

Back then, the justification for hunting Mexicans was banditry and rebellion but, as history has shown, then as now, the concept of border security was woven from the dark thread of race. The Vickers were once associated with the Minutemen, the militia group described by former President George W. Bush as “vigilantes.” The Southern Poverty Law Center lists the Minutemen and the Vickers’ ‘border volunteer’ outfit as a nativist extremist group.

From the media to the political arena the racially tinged side of “security” and normalized violence has found its way into the center. On July 5, just over two weeks before the Newsweek story was published, Bud Kennedy at the Fort Worth Star-Telegram reported that a Facebook page created for GOP convention delegates included statements such as:“Americans are not breeding while ‘the bronze master races is’… We will die out and they will win.” Kennedy told me some readers complained that he had overstated the importance of Facebook comments. But the page belonged to a faction of the Texas Republican Party that had been instrumental in shaping the state GOP platform. “What I’m concerned about is a Republican Party that has become infiltrated by John Birchers and white nationalists,” he said.

Brooks County Deputy Chief "Benny" Martinez
Jen Reel
Brooks County Deputy Chief “Benny” Martinez

Gov. Rick Perry cruises the Rio Grande with Sean Hannity, posing together on gunboats. The Dallas Morning News reported U.S. Rep Sam Johnson (R-TX) provoked laughter at a groundbreaking event for defense contractor Raytheon Co. when he said: “I don’t know how people cross that river. Maybe Raytheon can figure out a new silent gun.” He then cocked his finger like a pistol. Johnson later apologized.

Lost in the headline-grabbing displays of “border security” is a discussion of whether the border  enforcers are in fact breaking the law. I reached Brooks County Deputy Chief Urbino “Benny” Martinez by telephone and read him a Newsweek tweet about the story: For a few ranchers, setting traps for migrants, chasing after them and being intimidating is a hobby.

“That shouldn’t happen, I’ll make that very clear to you right now. That’s the first time I’ve heard that,” he said, distressed. Martinez added that he intended to investigate what is happening on the ranches. “This is not a show, this is not a reality show, this is for real.”

Martinez’s reaction should offer some relief for it shows that, at least for some leaders, border security radicalism has yet to overwhelm our good sense and humanity.

Support the Texas Observer
Fracking equipment near homes in Denton.
Fracking equipment near homes in Denton.

Energy companies have been injecting diesel underground during fracking operations—without permits to do so—in a dozen states including Texas, according to a new report from the nonprofit Environmental Integrity Project. The report, released Wednesday, found that between February 2010 and July 2014, nearly 13,000 gallons of diesel were injected underground in Texas alone. During that period, the study found that 33 companies injected diesel into 351 wells across the U.S.—but because the study relies on self-reported data in the chemical disclosure registry FracFocus, the actual total could be much higher.

The Environmental Protection Agency once had the power to regulate fracking fluids injected into the ground. But in 2005 Congress stripped the agency of nearly all of that authority, in what came to be known as the Halliburton Loophole—only diesel injection remained under EPA’s permitting authority. Diesel contains various known carcinogens, including benzene, that easily seep into groundwater, where they can threaten drinking supplies.

“[The EPA] may not be able to make the majority of wells safer, but they can do it with diesel and they should,” says the report’s author, former EPA enforcement attorney Mary Greene. “It’s not clear to me why they’re not.”

The report casts doubt on repeated assurances from industry players that diesel hasn’t been used in fracking in many years, at a time when the media and academics are challenging other industry talking points. For example, oil and gas companies have insisted that their operations don’t threaten water supplies. But last month, Pennsylvania’s Department of Environmental Protection said that oil and gas activity had, in fact, damaged water supplies in the state at least 209 times since the end of 2007. Pennsylvania is among the states with the most fracking activity in the country.

In January the Associated Press investigated oil and gas-related contamination complaints in four states including Texas. It found confirmed cases of water contamination in three states, including Pennsylvania, but none in Texas. At the time, Texas Railroad Commission spokeswoman Ramona Nye told the AP the agency hadn’t confirmed any cases of drilling-related contamination in the past decade. The regulatory agency reiterated that point yesterday in response to the new report. Greene, the report’s author, says her review only looked at diesel use, not the possibility of water contamination.

Of the 351 wells mentioned in the report, only 27 are in Texas, but the highest volume of diesel was injected here. The Environmental Integrity Project confirmed that at least 12,808 gallons of diesel were injected in Texas, mostly in counties sitting atop the Eagle Ford Shale.

Because companies control what they submit to FracFocus, and can claim any fracking fluid is a “trade secret” exempt from disclosure, Greene believes the use of diesel is much more common. Her review also found that many operators, after initially reporting diesel use to FracFocus, removed it from their disclosure list after the EPA reaffirmed its ban on diesel; companies can alter their disclosures at any time without noting the change.

Hours after the report was released, the industry news outlet Energy in Depth posted an article calling the research flawed and claiming, among other things, that energy companies removed diesel from their disclosures because of errors in their original submissions. The article mentions one company that said it had listed diesel due to a typo. The article also notes the number of wells cited in the report is a small fraction of the gas wells in the country.

“It only takes a small amount of benzene and some of these other chemicals that are in diesel to contaminate a whole lot of groundwater,” Greene says in response. “And it only takes a very small amount of these chemicals to cause significant health damage in people including increased risk of cancer. You take that coupled with the fact that the wells I uncovered in this report are not the entire universe of wells fracked with diesel out there … this is only the tip of the iceberg.”

Texas Attorney General Greg Abbott
Patrick Michels
Attorney General Greg Abbott

Back in April, amid a growing legal battle over the responsibility of Texas hospitals to keep bad doctors from operating, Attorney General Greg Abbott took a bold stand. He sided with Baylor Health Care System in federal lawsuits filed by three plaintiffs who are former patients of the notorious Dallas spine surgeon Christopher Duntsch. The plaintiffs are arguing that Duntsch was a known drug addict and a dangerously incompetent surgeon, and Baylor should have never let him operate. (The shocking story of how Duntsch got away with maiming and killing his patients is detailed in this Observer story from last year.) Their lawsuits challenge a 2003 Texas law that grants hospitals near-total legal immunity for the mistakes of doctors they allow to operate.

How immune are hospitals? Under the current law, for Baylor to be liable for Duntsch’s mistakes, the plaintiffs have to prove that hospital administrators let him operate because they specifically intended to harm patients.

Soon after the three plaintiffs sued, Abbott’s office announced that it would be jumping in to defend the statute that shielded Baylor. In statements at the time, the attorney general’s office was clear: Abbott wasn’t defending Baylor or Duntsch. He was simply defending state law.

Earlier this week, Wayne Slater at the Dallas Morning News suggested that Abbott may have had other incentives to intervene. In June 2013 and January 2014 Abbott received two large donations to his gubernatorial campaign—$100,000 and $250,000 respectively—from one Drayton McLane, a Temple transportation exec and Republican who is also the chairman of the the board of trustees for Baylor Scott & White, the company that owns the Baylor hospital system.

The timing is a little suspicious. The $100,000 donation came the day after the Texas Medical Board suspended Duntsch’s license, ending an 18-month surgical career that had left two dead and many more paralyzed or in chronic pain. The $250,000 donation came the week after the second of the threelawsuits.

McLane has given Abbott money before, but it’s generally been much less; the most he had given in the past, according to the campaign filings the Morning News references, was $25,000.

This is not the first time that Abbott’s political donations have been linked to his official capacities as attorney general:

Abbott authorized scores of state bond issues in which he has received more than $200,000 from the political committees of law firms serving as bond counsel.

Earlier this year, Abbott ruled that the public cannot have access to state information about the location of potentially dangerous chemicals like those that caused the 2013 explosion in West that killed 15 people. The ruling came after Abbott received $75,000 from the Koch Industries political committee and executives, including the head of the company’s fertilizer division.

Abbott has collected more than $75,000 in the governor’s race from the Farmers Insurance political committee amid criticism that a proposed settlement in a long-running lawsuit against Farmers doesn’t adequately compensate homeowners for being overcharged.

So did Drayton McLane buy Abbott’s intervention in the Baylor case with $350,000 of his own money?

Abbott and McLane say there’s no connection between the donations and the intervention of the state in the Baylor case. McLane told the Dallas Morning News that he has no financial stake in Baylor Scott & White; that his chairman position is unpaid, and that he didn’t even know about the Duntsch case before giving Abbott money.

McLane further explains: “When you look at my cumulative donations over the years, I have supported other Texas candidates, whom I believe in, similarly to how I have chosen to support General Abbott.”

But it is a lot of cash. McLane gave Rick Perry less in his entire gubernatorial career than he gave Abbott just in the last year.

Abbott may have other reasons for so aggressively siding with Baylor and Duntsch. Tort reform, the conservative movement to make it much more difficult for people to win big judgments in civil courts, has been a centerpiece of Abbott’s political career. With the 2003 omnibus tort reform bill–as well as a number of favorable Texas Supreme Court decisions that limited hospital liability to an absurd degree—the movement won big.

And now, in the suits against Christopher Duntsch and Baylor, we have several particularly egregious, media-ready cases that are directly threatening one of the outposts of the tort reform bill: hospital immunity. If this part falls, there’s no telling what falls next—that is one lesson of the staggeringly quick collapse of the civil court system in the tort reform era. So, it is a little hard to believe that the prospect of tort reform fraying around the edges motivates Greg Abbott less than $350,000 in campaign money.

Support the Texas Observer