A Congress-woman’s Cause Is Often Her Husband’s Gain
by Eric Lipton, September 5, 2011
photo: Representative Shelley Berkley on Aug. 17 at a conference of the Blinded Veterans Association in Las Vegas.
LAS VEGAS — At the University Medical Center here, alarms were set off three years ago — kidney transplants were failing at unusually high rates, and some patients were even dying.
Federal regulators moved to shut down the kidney transplant program, but the proposed penalty brought a rebuke from Representative Shelley Berkley, Democrat of Nevada, who helped lead a successful effort to get the officials from Washington to back down.
In pleading for a reprieve, Ms. Berkley and other members of Nevada’s Congressional delegation said they were acting on behalf of the state’s families, citing dire health consequences if the program was halted. But the congresswoman’s efforts also benefited her husband, a physician whose nephrology practice directs medical services at the hospital’s kidney care department — an arrangement that expanded after her intervention and is now reflected in a $738,000-a-year contract with the hospital.
Ms. Berkley’s actions were among a series over the last five years in which she pushed legislation or twisted the arms of federal regulators to pursue an agenda that is aligned with the business interests of her husband, Dr. Larry Lehrner. In addition to the hospital contract, he operates a dozen dialysis centers in Nevada and has played a central role in an industry campaign to lobby members of Congress — including his wife — on behalf of kidney care providers.
Dr. Lehrner helped build a political action committee that has regularly turned to Ms. Berkley to champion its causes. She has co-sponsored at least five House bills that would expand federal reimbursements or other assistance for kidney care, written letters to regulators to block enforcing rules or ease the flow of money to kidney care centers and appeared regularly at fund-raising events sponsored by a professional organization her husband has helped run.
“This is a very serious conflict of interest,” said James A. Thurber, a former Congressional aide who has helped revise ethics rules and is now director of the Center for Congressional and Presidential Studies at American University. “There is an official use of power here to help him and the family — and I think that is unethical.”
Ms. Berkley declined an interview request for this article. But in a statement, she said she was an advocate for a broad range of health care causes and had never acted specifically to help her husband’s practice.
“I won’t stop fighting to give Nevadans access to affordable health care just because my husband is a doctor, just like I won’t stop standing up for veterans because my father served in World War II,” she said.
Dr. Lehrner, though, said he was unabashed about pressing his wife on issues that were important to his practice.
“She is definitely aware of my positions, and the R.P.A.’s positions,” he said in an interview, referring to the Renal Physicians Association, the trade group he has helped run. “We talk politics all the time. We talk medicine.”
Congressional ethics rules are murky — lawmakers can take steps that financially benefit a spouse as long as the benefit is broadly available and there is no “improper exercise of official influence.” Lobbying of lawmakers by their spouses is prohibited, but there is no ban on spouses’ informally acting as industry advocates, like Dr. Lehrner, who is not a registered lobbyist.
The intermingling of Ms. Berkley’s public and private life, though, is striking even among her peers on Capitol Hill, and surfaced in an examination by The New York Times of how lawmakers forge particularly close ties to industries with an agenda in Washington.
As Ms. Berkley has pushed the cause of kidney care in Congress, her husband’s practice has boomed, thanks in part to his joint ownership of dialysis centers with DaVita, a giant in the industry and one of Ms. Berkley’s biggest campaign contributors. She is one of the richest members of Congress, as she or her husband hold assets valued from $7 million to $23 million, according to her most recent financial disclosure forms.
Now running for the Senate seat held by John Ensign until his resignation this spring amid an ethics scandal, Ms. Berkley drives around Nevada in a white Ford Fusion (“United States Congresswoman 1” reads her license plate, referring to her Congressional district).
She often talks about her modest upbringing, in which she ate at Taco Bell while scraping by as a cocktail waitress at a casino resort hotel here. She also frequently mentions her husband’s work — she delivered a “certificate of Congressional recognition” at the ribbon cutting of his latest dialysis center last year — and cites his experiences as evidence for why Congress must act to change federal laws or policy.
“I’m sure he didn’t think in medical school that in his 60s he still would be taking calls on the weekends, but that’s the reality of the situation when you don’t have enough nephrologists to care for the population that you’re living in,” Ms. Berkley said at a House hearing in 2009, at which she pushed for higher federal reimbursements for medical specialists like her husband.
Concerns About Care
Shawn Rowlett, 40, showed up at the University Medical Center with his wife, pale and weak, four days after he had been discharged from the hospital’s transplant center with a new kidney in February 2008. But now he was hemorrhaging, medical records show.
After seeing the hospital’s chief transplant surgeon, Mr. Rowlett was left in the emergency room for five hours before being admitted, according to his wife, Dionne Rowlett. He died less than two hours later, court records show.
“The care was just horrible,” Ms. Rowlett said in a recent interview, shortly after the hospital settled a malpractice suit for $77,500 — the maximum amount allowed in Nevada because of a cap on malpractice payments from public hospitals. (Dr. Lehrner and his practice were not named in the lawsuit.)
Mr. Rowlett’s death and four recent others in the first year after the surgery, as well as 10 transplant failures, were part of a troubling pattern — the death and failure rates were more than twice the expected level. That led the federal Centers for Medicare and Medicaid Services to issue an order to revoke the certification for the hospital’s transplant program — which does about 50 transplants a year — and cut off Medicare financing, effectively shutting the program down.
Brian G. Brannman, the medical center’s chief executive, acknowledged that the program was in disarray back then. In a recent interview, he said the hospital was mostly to blame, as its lone transplant surgeon had not been provided with a sufficient support system. Federal regulators also questioned the qualifications of the physician whom Dr. Lehrner and his partners had assigned to help screen transplant patients, leading the hospital to acknowledge in writing that he “was not formally trained in transplantation.”
Desperate for a second chance, hospital officials appealed to members of the Nevada Congressional delegation. Ms. Berkley sent a letter, signed by two other lawmakers, warning that cutting off money would “jeopardize the health of hundreds” of constituents. She and the other lawmakers helped set up a series of conference calls between hospital and Medicare officials.
Soon after, the Centers for Medicare and Medicaid Services, for the first time, agreed to override provisions that would have required decertifying the program. In exchange, the hospital promised to remedy the problems.
“I spoke to the head of C.M.S. yesterday,” Ms. Berkley told local television reporters in announcing the breakthrough. “When I got off the phone, I had a good-faith belief that we were going to come up with a compromise that works for everybody.”
Kerry Weems, then the agency’s acting administrator, said he recalled speaking with Ms. Berkley and Jon Porter, then a Republican House member from Nevada, about the program. Mr. Weems could not recall if Ms. Berkley mentioned her husband’s ties to the hospital. But he said he would have approved the agreement anyway.
“You want to find a way to ‘yes’ — not based on any individual stake that a Congress person might have,” said Mr. Weems, who recently left the agency. “But this really was the only transplant center in Nevada.”
Part of the deal involved significantly expanding the staff of kidney specialists. The hospital turned to Ms. Berkley’s husband to recruit two transplant nephrologists, who, Mr. Brannman said, work more directly with the hospital’s new transplant surgeon.
Mr. Brannman said the selection of Dr. Lehrner’s practice — it was the sole bidder for the contract renewed in December 2010, which increased annual fees by 25 percent — had nothing to do with Ms. Berkley, whom he said he did not know well. The various staffing changes have significantly improved the transplant program’s performance in recent years, according to Mr. Brannman and federal officials.
Jessica Mackler, Ms. Berkley’s campaign manager, said the congresswoman had no conflict of interest when she intervened, because the money the hospital uses to pay her husband does not directly come from the federal government, and other members of the state’s Congressional delegation were involved in the effort to save the transplant program.
“There really is no issue here,” Ms. Mackler said.
But Mr. Reems, the former Medicare official, is not so sure, given Ms. Berkley’s record of interventions on kidney care issues.
“You never want questions being raised,” he said, “and that means you need to try to avoid any move that makes you seem anything less than an impartial public servant.”
Overlapping Agendas
At the annual conference of the Renal Physicians Association in Austin, Tex., in 2008, Dr. Lehrner showed a slide of a smiley-faced doctor with a screw being forced into his mouth, and then ticked off a list of steps the group could take to fight cost control efforts in Washington.
“We have been screwed by our policy makers for 20 years,” he told the crowd. “Only you can prevent the destruction of our profession.”
The doctors, he said, could donate money directly to members of Congress, volunteer on their campaigns, contribute to the political action committee that he had helped build at the Renal Physicians Association and travel to Washington to personally appeal to lawmakers, as he himself does.
Dr. Lehrner added one more option to the list. “Marry an elected official,” he said, evoking laughter.
He may have been joking, but Ms. Berkley, 60, who was first elected in 1998 — a year before she and Dr. Lehrner married — has been largely sympathetic to the doctors’ cause.
The Medicare system spends an estimated $27 billion a year, or about 6 percent of overall Medicare spending, to help some of the approximately 550,000 Americans who have so-called end-stage kidney disease. It is the only chronic disease in which the most severely ill patients get nearly free care, regardless of age.
But Congress and federal regulators, alarmed over the surging costs, have sought to control spending in recent years, provoking protests from Dr. Lehrner and the physicians’ association, as well as the drug companies and dialysis operators that dominate the industry.
When Dr. Lehrner assumed a series of leadership roles at the renal physicians group, Ms. Berkley’s agenda in Washington started to overlap with her husband’s. He became the single biggest contributor to the association’s political action committee, while also serving as its chairman. And she has received the largest share of its contributions, totaling $7,000 since 2007. Over all, kidney care doctors, companies and lobbyists have donated at least $140,000 to Ms. Berkley’s Congressional campaigns.
Dr. Lehrner’s flourishing practice now includes 21 doctors who work out of seven offices in the Las Vegas area, as well as 11 dialysis centers, 10 of them run in a joint venture, started in 2003, with DaVita. He is a paid national speaker for and has received research grants from Amgen, a major supplier of drugs to dialysis centers.
The activities of these interest groups are closely aligned at times.
In early February 2008, for example, Ms. Berkley received a series of campaign contributions, first $1,000 from Amgen, then $2,000 from Kidney Care Partners, a trade group backed by Amgen and DaVita, then $3,000 from DaVita, and then $1,000 from Dr. Lehrner’s group, the Renal Physicians.
The day that two of those checks were delivered, Ms. Berkley sent a letter to Representative Pete Stark, Democrat of California, then chairman of the House Ways and Means subcommittee with jurisdiction over Medicare, warning him to move carefully in considering changes in compensating doctors who provided dialysis treatments. Echoing concerns raised by the industry, the congresswoman said she worried that patient access to care could be affected.
“While I support initiatives to improve quality and efficiency in Medicare, I do not believe that these efficiencies should come at the cost of patient well being,” Ms. Berkley wrote, without mentioning her husband’s interest in the matter.
Regulators moved ahead with the new reimbursement system, although it was adjusted in a way that the dialysis and drug companies ultimately embraced. This year, after Medicaidthreatened to cut 3.1 percent of the money for dialysis — to save an estimated $250 million annually — Ms. Berkley led an effort in the House to oppose the cut.
Less than a month later, the agency reversed its position, winning Ms. Berkley a personal thanks from industry leaders in press releases and new campaign donations.
“She is highly knowledgeable about this complicated and critical area of health care that impacts millions of Americans,” Skip Thurman, a DaVita spokesman said in a written statement, of the company’s donations — which have accelerated as Ms. Berkley runs for the Senate. “The kidney community’s support of her is entirely appropriate.”
The Champions
Helping a Spouse
Articles in this series look at members of Congress and their advocacy for favorite industries or causes.
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