U.S. Trustee Program Reaches Settlement with McKinsey and Company to Withdraw and Waive its Fees in the Westmoreland Coal Bankruptcy Case

Settlement Addresses Disclosure Deficiencies and Possible Conflicts Relating to McKinsey’s Retention in In Re Westmoreland Coal, No. 18-35672 (Bankr. S.D. Tex.)

The Department of Justice’s U.S. Trustee Program (USTP) has entered into a settlement agreement with global consulting firm McKinsey & Company (McKinsey) requiring McKinsey to forego payment of fees in the Westmoreland Coal bankruptcy case pending in the U.S. Bankruptcy Court for the Southern District of Texas (Westmoreland Case).  The agreement, which is subject to review and approval by the bankruptcy court, resolves the USTP’s objection to the adequacy of McKinsey’s disclosures of connections and possible conflicts of interest in the Westmoreland Case.

The USTP previously reached a $15 million settlement with McKinsey in February 2019 to address past disclosure practices by McKinsey in three bankruptcy cases, including the Westmoreland Case.  The USTP had objected to McKinsey’s initial application seeking to be retained in the Westmoreland Case, and after the prior settlement McKinsey withdrew that application.  McKinsey later made new disclosures in a renewed attempt to be retained in the Westmoreland Case.  The USTP again objected, alleging that the disclosures remained deficient because McKinsey failed to disclose the connections of all of its affiliates, failed to make adequate disclosures regarding its investments in entities that could create a conflict of interest, and failed to address inconsistencies concerning its disclosure of confidential client connections. 

“In bankruptcy, professionals who are paid at the expense of the debtor company’s creditors, employees, and shareholders must be free of any actual or potential conflicts of interest,” said USTP Director Cliff White.  “Under bankruptcy law, this also entails detailed disclosures to ensure that the professionals can provide single-minded loyalty to the debtor’s stakeholders.  Should any professionals fail to meet this standard, regardless of size, complexity, or motivation, they will be held accountable.  This settlement ensures that McKinsey is held accountable for its conduct in this case.”

Settlement Terms

Under the terms of the settlement, McKinsey’s application seeking employment in the Westmoreland Case will be withdrawn.  As a result, McKinsey will not seek to recover any fees in connection with services rendered in the case that would otherwise be subject to review and approval of the court.  While the total amount of fees it is waiving is unknown, McKinsey rendered services throughout the case and likely would have sought approval for, and reimbursement of, millions of dollars in fees and expenses. 

In addition, McKinsey has for the first time agreed that it will fully disclose all affiliate connections and all confidential client connections in any bankruptcy case in which it seeks to be retained in the future, unless the bankruptcy court orders otherwise. 

The USTP has agreed to withdraw its pending objection in the Westmoreland Case and to work cooperatively, as it does with all professionals seeking to be employed in bankruptcy cases, to ensure the adequacy of McKinsey’s disclosures relating to its proposed retention in future bankruptcy cases.  The USTP continues to review McKinsey’s practices with respect to its investment affiliates.

While the settlement resolves any actions that could be brought by the USTP for McKinsey’s inadequate disclosures in the Westmoreland Case, it does not impact the rights of other third parties, including any parties or government agencies not participating in the settlement.  This settlement, as with the prior settlement, is limited to resolving McKinsey’s disclosure deficiencies and does not address or resolve, among other things, claims relating to actual or potential conflicts of interest. 

The USTP has an ongoing initiative to ensure the rigorous review of applications to employ professionals, including those who have investment arms and complex multi-affiliate organizational structures.  The USTP’s public emphasis on enforcing conflict and disclosure set forth in bankruptcy law has resulted in more complete disclosures made by these professionals in cases across the country.

The U.S. Trustee Program is the component of the Justice Department that protects the integrity of the bankruptcy system by overseeing case administration and litigating to enforce the bankruptcy laws. The Program has 21 regions and 90 field office locations. Learn more information on the Program at: https://www.justice.gov/ust.

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    A Kentucky doctor and his former office manager were sentenced to 60 and 32 months respectively in prison Wednesday for their roles in unlawfully distributing controlled substances during a time when the defendants did not have a legitimate medical practice.
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  • Prescription Drugs: Department of Veterans Affairs Paid About Half as Much as Medicare Part D for Selected Drugs in 2017
    In U.S GAO News
    GAO found that the Department of Veterans Affairs (VA) paid, on average, 54 percent less per unit for a sample of 399 brand-name and generic prescription drugs in 2017 as did Medicare Part D, even after accounting for applicable rebates and price concessions in the Part D program. GAO also found that 233 of the 399 drugs in the sample were at least 50 percent cheaper in VA than in Medicare, and 106 drugs were at least 75 percent cheaper. Only 43 drugs were cheaper in Medicare than in VA. The percent difference in price between the two programs was greater on average for generic drugs. Specifically, VA's prices were 68 percent lower than Medicare prices for the 203 generic drugs (an average difference of $0.19 per unit) and 49 percent lower for the 196 brand-name drugs (an average difference of $4.11 per unit). Average Per-Unit Net Prices Paid by Department of Veterans Affairs and Medicare Part D for Selected Drugs, 2017 Note: GAO's sample of 399 drugs included the top 100 brand-name and generic drugs in Medicare Part D in 2017, by: (1) highest expenditures; (2) highest utilization (by quantities dispensed); and (3) highest cost-per use. Per-unit prices are weighted to reflect differences in utilization in the two programs. Medicare prices reflect expenditures after accounting for rebates and other price concessions. While there are many factors that impact prices in the complex drug market, GAO identified several key program features that may contribute to the consistent price differential between VA and Medicare Part D. For example, Medicare's beneficiaries are divided among numerous prescription drug plans, which each negotiate drug prices with manufacturers. In contrast, VA is a single integrated health system with a unified list of covered drugs—thereby possibly strengthening its bargaining position when negotiating. In addition, VA has access to significant discounts defined by law, and can then negotiate further for lower prices. These discount prices are not available to Medicare Part D plans. GAO provided a draft of this product to HHS and VA for comment. Both agencies provided technical comments, which GAO incorporated as appropriate. In 2017, combined, Medicare Part D and VA accounted for approximately $105 billion in prescription drug sales—nearly one-third of total U.S. expenditures—and covered nearly 52 million individuals. The two programs use different methods to pay for prescription drugs. Medicare reimburses Part D plan sponsors, which in turn pay pharmacies to dispense drugs. VA primarily uses a direct purchase approach to acquire drugs from manufacturers. GAO was asked to examine differences in the amounts major federal programs paid for prescription drugs. This report: (1) compares average unit prices for prescription drugs in Medicare Part D to those in the VA; and (2) describes factors affecting prices in the two programs. GAO analyzed (1) CMS data for Medicare Part D payments to retail pharmacies as well as rebates and other price concessions Part D plans received and (2) VA drug purchasing data. These data were from 2017, the most recent data available at the time of GAO's analysis. To select a sample of drugs GAO identified the top 100 brand-name and 100 generic drugs in Medicare Part D in 2017 for three categories: (1) highest expenditure, (2) highest utilization, and (3) highest cost-per use. In total, this yielded 399 non-duplicate drugs (203 generic and 196 brand-name), which represented 44 percent of Medicare Part D spending in 2017. GAO compared weighted average unit prices for these drugs. GAO interviewed CMS and VA officials, and reviewed academic and government reports to understand factors that may affect prices in the two programs. For more information, contact John Dicken at (202) 512-7114 or dickenj@gao.gov.
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  • Former Commander of Naval Station Guantanamo Bay Sentenced to Prison
    In Crime News
    A former Commander of Naval Station Guantanamo Bay (GTMO) was sentenced to 24 months in federal prison following his multiple convictions of obstructing justice and making false statements, in connection with the death of a civilian at the naval base.
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  • Medical Device Maker Merit Medical To Pay $18 Million To Settle Allegations Of Improper Payments To Physicians
    In Crime News
    Medical device maker Merit Medical Systems Inc. (MMSI), of South Jordan, Utah, has agreed to pay $18 million to resolve allegations that the company caused the submission of false claims to the Medicare, Medicaid, and TRICARE programs by paying kickbacks to physicians and hospitals to induce the use of MMSI products, the Department of Justice announced today. 
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  • Former Employee At Los Alamos National Laboratory Sentenced To Probation For Making False Statements About Being Employed By China
    In Crime News
    Turab Lookman, 68, of Santa Fe, New Mexico, was sentenced on Sept. 11 to five years of probation and a $75,000 fine for providing a false statement to the Department of Energy.  Lookman is not allowed to leave New Mexico for the term of his probation.
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  • Kenyan National Indicted for Conspiring to Hijack Aircraft on Behalf of the Al Qaeda-Affiliated Terrorist Organization Al Shabaab
    In Crime News
    The Department of Justice announced the unsealing of an indictment charging Cholo Abdi Abdullah with six counts of terrorism-related offenses arising from his activities as an operative of the foreign terrorist organization al Shabaab, including conspiring to hijack aircraft in order to conduct a 9/11-style attack in the United States.  Abdullah was arrested in July 2019 in the Philippines on local charges, and was subsequently transferred on Dec. 15, 2020 in connection with his deportation from the Philippines to the custody of U.S. law enforcement for prosecution on the charges in the indictment.  Abdullah was transported from the Phillippines to the United States yesterday, and is expected to be presented today before Magistrate Judge Robert W. Lehrburger in Manhattan federal court.  The case is assigned to United States District Judge Analisa Torres.
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  • Justice Department Issues Business Review Letter for Proposed University Technology Licensing Program
    In Crime News
    The Justice  Department’s Antitrust Division announced today that it has completed its review of a proposed joint patent licensing pool known as the University Technology Licensing Program (UTLP).  UTLP is a proposal by participating universities to offer licenses to their physical science patents relating to specified emerging technologies.
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  • Federal Tactical Teams: Characteristics, Training, Deployments, and Inventory
    In U.S GAO News
    Within the executive branch, GAO identified 25 federal tactical teams, and the characteristics of these teams varied. The 25 tactical teams were across 18 agencies, such as agencies within the Departments of Homeland Security, Justice, Energy, and the Interior. The number of reported team members per team ranged from two to 1,099. More than half (16 of 25) of the teams reported that they are composed of team members working for the team on a collateral basis. Most teams (17 of 25) had multiple units across various locations. Photos of Federal Tactical Teams in Action Tactical teams generally followed a similar training process, with initial training, specialty training, and ongoing training requirements. Nearly all teams (24 of 25) reported that new team members complete an initial tactical training course, which ranged from 1 week to 10 months. For example, potential new team members of the Federal Bureau of Investigation's Hostage Rescue Team complete a 10-month initial training that includes courses on firearms; helicopter operations; and surveillance, among others. Nearly all teams (24 of 25) reported offering specialized training to some team members, such as in sniper operations and breaching. Nearly all teams (24 of 25) also reported having ongoing training requirements, ranging from 40 hours per year to over 400 hours per year. The number and types of deployments varied across the 25 tactical teams for fiscal years 2015 through 2019. The number of reported deployments per tactical team during this time period ranged from 0 to over 5,000. Teams conducted different types of deployments, but some types were common among teams, such as: supporting operations of other law enforcement entities, such as other federal, state, and local law enforcement (16 of 25); providing protection details for high-profile individuals (15 of 25); responding to or providing security at civil disturbances, such as protests (13 of 25); and serving high-risk search and arrest warrants (11 of 25). Four teams reported that they had deployed in response to the Coronavirus 2019 (COVID-19) pandemic, and 16 teams reported deployments related to nationwide civil unrest and protests in May and June 2020. Tactical teams reported having various types of firearms, tactical equipment, and tactical vehicles in their inventories. Team members generally have a standard set of firearms (e.g., a pistol, a backup pistol, and a rifle), but some may also have specialized firearms (e.g., a shotgun designed to breach doors). Tactical teams also have a variety of tactical equipment, such as night vision devices to maintain surveillance of suspects or tactical robots that can go into locations to obtain audio and video information when team members cannot safely enter those locations. Tactical teams may also have tactical vehicles, such as manned aircraft (e.g., helicopters) and armored vehicles to patrol locations. The figure below identifies the number of tactical teams that reported having such items in their inventories. Number of Federal Tactical Teams That Reported Having Firearms, Tactical Equipment, and Tactical Vehicles in Their Inventories, as of January 2020 Appendix I of the report provides details on each of the 25 tactical teams, such as each team's mission; staffing; types and frequency of training; and number and types of deployments from fiscal years 2015 through 2019. This is a public version of a sensitive report issued in August 2020. Information deemed to be sensitive by the agencies in this review, such as the quantities of firearms, tactical equipment, and tactical vehicles in team inventories, has been omitted from this report. Many federal agencies employ law enforcement officers to carry out the agency's law enforcement mission and maintain the security of federal property, employees, and the public. Some of these agencies have specialized law enforcement teams—referred to as federal tactical teams in this report—whose members are selected, trained, equipped, and assigned to prevent and resolve critical incidents involving a public safety threat that their agency's traditional law enforcement may not otherwise have the capability to resolve. This report provides information on the (1) federal tactical teams and their characteristics; (2) training team members receive; (3) deployments of such teams from fiscal years 2015 through 2019; and (4) firearms, tactical equipment, and tactical vehicles in team inventories, as of January 2020. To identify federal tactical teams, GAO contacted executive branch agencies with at least 50 federal law enforcement officers. GAO administered a standardized questionnaire and data collection instrument to the identified teams to gather information on team missions, staffing, training, deployments, and inventories. GAO reviewed team documents, such as standard operating procedures, and interviewed agency officials. GAO collected descriptive information on reported deployments as of June 2020 in response to COVID-19 and nationwide civil unrest, which were ongoing during the review. GAO incorporated agency technical comments as appropriate. For more information, contact Gretta L. Goodwin at (202) 512-8777 or goodwing@gao.gov.
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  • Remarks of Assistant Attorney General for the National Security Division John C. Demers on the Iran Forfeiture Actions
    In Crime News
    Good morning.  Today, I am joined by Acting U.S. Attorney for the District of Columbia Michael Sherwin and the State Department’s Special Representative for Iran and Venezuela Elliott Abrams to announce two civil seizure court actions that have disrupted malign, and in one instance, potentially deadly, activities undertaken by the Iranian Revolutionary Guard Corps (IRGC)-Quds Force, a Foreign Terrorist Organization.  Special Representative Abrams will also be announcing sanctions that the State Department and the Department of the Treasury have imposed on the responsible individuals and entities.
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  • Workplace Safety and Health: Actions Needed to Improve Reporting of Summary Injury and Illness Data
    In U.S GAO News
    GAO's analysis of Occupational Safety and Health Administration (OSHA) data showed that the number of recordkeeping violations OSHA cited fluctuated over 15 years (see fig.). An April 2012 federal court decision (that effectively limited the time period for citing these violations) and a January 2015 expansion of OSHA's rule for reporting severe injuries and illnesses coincided with, and were cited by, OSHA staff as key factors explaining these fluctuations. Number Recordkeeping Violations OSHA Cited by Fiscal Year Employers did not report any summary injury and illness data on more than one-half of their establishments that GAO estimated met the reporting requirements (see table). Estimated Compliance with Summary Injury and Illness Reporting Requirement Calendar year Estimated establishments that met summary injury and illness reporting requirements Establishments whose employers submitted summary injury and illness data     Number Percent 2016 451,000 159,000 35% 2017 454,000 189,000 42% 2018 459,000 212,000 46% Source: GAO analysis of U.S. Census Bureau County Business Patterns data and Occupational Safety and Health Administration (OSHA) summary (300A) injury and illness data. Establishments in all 50 states and the District of Columbia reported these data. Data rounded to the nearest thousand. | GAO-21-122 OSHA has limited procedures for encouraging compliance with this reporting requirement and for penalizing non-compliance. For example, OSHA officials told GAO that they identified nearly 220,000 employers in 2019 who may not have reported their data and mailed reminder postcards to about 27,000 of them. OSHA also cited 255 employers for failure to report their data from mid-December 2017 through September 2019 after OSHA conducted on-site inspections. OSHA uses the summary injury and illness data to target high-risk establishments for certain comprehensive inspections. Because OSHA has not evaluated its procedures, it does not know the extent to which its efforts may be improving injury and illness reporting or what other efforts it should undertake. Absent more complete information, OSHA is at risk for not achieving its objective of targeting inspections to establishments with the highest injury and illness rates. In 2018, about 3.5 million workers suffered job-related injuries, and illnesses and 5,250 died on the job, according to Bureau of Labor Statistics data. Employers are required to record work-related injuries and illnesses, promptly report severe injury and illness incidents to OSHA, and certain employers are required to report summary injury and illness data electronically on an annual basis. GAO was asked to review how OSHA addresses recordkeeping violations, and implements its rule for reporting summary data. This report examines: (1) how and why recordkeeping violations changed from fiscal years 2005 through 2019 and (2) the extent to which employers report summary injury and illness data and OSHA has taken steps to ensure compliance with this requirement. GAO analyzed 15 years of OSHA recordkeeping violation data and compared OSHA and Census data to estimate how many employers complied with summary reporting requirements. GAO also reviewed agency procedures and relevant federal laws and regulations and interviewed OSHA headquarters officials and staff at seven OSHA area offices, selected for geographic dispersion and varying amounts of recordkeeping violations. GAO recommends OSHA evaluate procedures for ensuring reporting of summary data and develop a plan to remediate deficiencies. OSHA generally concurred with our recommendation. For more information, contact Thomas Costa at (202) 512-4769 or costat@gao.gov.
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  • Public Health: Federal Programs Provide Screening and Treatment for Breast and Cervical Cancer
    In U.S GAO News
    The Centers for Disease Control and Prevention (CDC) operates the National Breast and Cervical Cancer Early Detection Program (the Early Detection Program) to provide cancer screening and diagnostic services to people who are low-income and uninsured or underinsured. For those screened under the program who require treatment, the Breast and Cervical Cancer Prevention and Treatment Act of 2000 (the Treatment Act) allows states to extend Medicaid eligibility to individuals not otherwise eligible for Medicaid. GAO analysis of CDC data show that the Early Detection Program screened 296,225 people in 2018, a decrease from 550,390 in 2011 (about 46 percent). The largest decrease occurred from 2013 to 2014 (see figure). According to a CDC-funded study, the number of people eligible for the Early Detection Program decreased from 2011 through 2017, by about 48 percent for breast cancer and about 49 percent for cervical cancer. CDC officials attributed these declines in screening and eligibility, in part, to improved access to screening under the Patient Protection and Affordable Care Act (PPACA). For example, PPACA required health plans to cover certain women's preventive health care with no cost sharing. Number of People Screened by CDC's Early Detection Program, 2011-2018 GAO analysis of Centers for Medicare & Medicaid Services' (CMS) data found that, in 2019, 43,549 people were enrolled in Medicaid under the Treatment Act to receive treatment for breast or cervical cancer, a decrease from 50,219 in 2016 (13.3 percent). Thirty-seven states experienced a decrease in Medicaid enrollment under the Treatment Act during this time period, 13 states experienced an increase, and one state had no change. CMS officials noted that Medicaid expansion to adults with incomes at or below 133 percent of the federal poverty level under PPACA (the new adult group) is a key factor that contributed to these enrollment trends. CMS officials said that, in Medicaid expansion states, there were some people who previously would have enrolled in Medicaid based on eligibility under the Treatment Act who instead became eligible for Medicaid in the new adult group. The CMS data show that total enrollment under the Treatment Act in Medicaid expansion states decreased by 25.6 percent from 2016 to 2019. In contrast, total enrollment under the Treatment Act in non-expansion states increased by about 1 percent during this time period. According to the CDC, tens of thousands of people die each year from breast or cervical cancer. Early screening and detection, followed by prompt treatment, can improve outcomes and, ultimately, save lives. Federal programs, like CDC's Early Detection Program, are intended to improve access to these services. GAO was asked to examine the implementation of the Early Detection Program and the states' use of Medicaid under the Treatment Act. This report provides information on the number of people who were 1) screened through the Early Detection Program and 2) enrolled in Medicaid under the Treatment Act. GAO analyzed CDC data on the number of people screened by the Early Detection Program from calendar years 2011 through 2018—the most recent available. GAO also analyzed CMS Medicaid enrollment data from 2016 through 2019—the most recent available. Additionally, GAO reviewed a 2020 study funded by CDC that examines the number of people eligible for the Early Detection Program from 2011 through 2017. Finally, GAO interviewed CDC and CMS officials and reviewed relevant CDC and CMS documents. For more information, contact John E. Dicken, (202) 512-7114, dickenj@gao.gov.
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  • Two Members of Notorious Videogame Piracy Group “Team Xecuter” in Custody
    In Crime News
    Two leaders of one of the world’s most notorious videogame piracy groups, Team Xecuter, have been arrested and are in custody facing charges filed in U.S. District Court in Seattle.
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  • U.S. Government Collects $7 Million in Iranian Assets for Victims of Terrorism Fund
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    The Justice Department announced the United States has collected $7 million of Iranian funds that will be allocated to provide compensation to American victims of international state-sponsored terrorism.
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  • Federal Contractor Agrees to Pay $18.98 Million for Alleged False Claims Act Caused by Overcharges and Unqualified Labor
    In Crime News
    Cognosante LLC has agreed to pay the United States $18,987,789 to resolve allegations that it violated the False Claims Act by using unqualified labor and overcharging the United States for services provided to government agencies under two General Services Administration (GSA) contracts, the Justice Department announced today.  Cognosante, which is headquartered in Falls Church, Virginia, provides health care and IT services and solutions to federal agencies.   
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  • Medicaid Long-Term Services and Supports: Access and Quality Problems in Managed Care Demand Improved Oversight
    In U.S GAO News
    At the state and federal levels, GAO found weaknesses in the oversight of Medicaid managed long-term services and supports (MLTSS), which assist individuals with basic needs like bathing or eating. Through various monitoring approaches, six selected states identified significant problems in their MLTSS programs with managed care organization (MCO) performance of care management, which includes assessing beneficiary needs, authorizing services, and monitoring service provision to ensure quality and access to care. State efforts may not be identifying all care management problems due to limitations in the information they use to monitor MCOs, allowing some performance problems to continue over multiple years. Performance Problems in Managed Care Organization (MCO) Care Management, Identified by Selected States GAO found that the Centers for Medicare & Medicaid Services' (CMS) oversight of state implementation of its 2016 requirements, and of access and quality in MLTSS more broadly, was limited. This hinders the agency's ability to hold states and MCOs accountable for quality and access problems beneficiaries may face. Oversight did not detect quality and access problems. GAO identified cases where CMS learned about problems not through its regular oversight, but instead from beneficiary complaints, media reports, or GAO. CMS officials said that states had not reported these problems to the agency. Lack of national oversight strategy and assessment of problems in MLTSS. Weaknesses in oversight reflect a broader area of concern—namely, that CMS lacks a strategy for oversight. CMS also has not assessed the nature and extent of access and quality problems across states. Without a strategy and more robust information, CMS risks being unable to identify and help address problems facing beneficiaries. As of July 2020, CMS had convened a new workgroup focused on MLTSS oversight, though the goals and time frames for its work were unclear. An increasing number of states are using managed care to deliver long-term services and supports in their Medicaid programs, thus delegating decisions around the amounts and types of care beneficiaries receive to MCOs. Federal guidance requires that MLTSS programs include monitoring procedures to ensure the appropriateness of those decisions for this complex population, which includes adults and children who may have physical, cognitive, and mental disabilities. GAO was asked to review care management in MLTSS programs. Among other things, this report examines state monitoring of care management, and CMS oversight of state implementation of 2016 requirements related to MLTSS quality and access. GAO examined documentation of monitoring procedures and problems identified in six states selected for variation in program age and location. GAO reviewed federal regulations and oversight documents, interviewed state and federal Medicaid officials, and assessed CMS's policies and procedures against federal internal control standards. GAO is making two recommendations to CMS to (1) develop a national strategy for overseeing MLTSS, and (2) assess the nature and prevalence of MLTSS quality and access problems across states. CMS did not concur with the recommendations. GAO maintains the recommendations are warranted, as discussed in this report. For more information, contact at (202) 512-7114 or yocomc@gao.gov.
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  • Judicial Security Legislation Stalls, Awaits Congressional Action in 2021
    In U.S Courts
    On Wednesday afternoon, the United States Senate considered but failed to act on the Daniel Anderl Judicial Security and Privacy Act of 2020, legislation that would enhance the security protections for federal judges nationwide.
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  • Operation Legend: Case of the Day
    In Crime News
    Each weekday, the Department of Justice will highlight a case that has resulted from Operation Legend.  Today’s case is out of the Western District of Missouri.  Operation Legend launched in Kansas City on July 8, 2020, in response to the city facing increased homicide and non-fatal shooting rates.
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