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A congresswoman’s cause is often her husband’s gain

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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 Rep. Shelley Berkley, D-Nev., who helped lead a successful effort to get the officials from Washington to back down.

In pleading for a reprieve, 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.

Berkley’s actions were among a series over the past 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.

Lehrner helped build a political action committee that has regularly turned to 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 fundraising 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."

Berkley, who is now running for the Senate seat held by John Ensign until his resignation this spring amid an ethics scandal, 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.

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 RPA’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 Lehrner, who is not a registered lobbyist.

The intermingling of 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.

A TROUBLING PATTERN

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, 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," Dionne 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. (Lehrner and his practice were not named in the lawsuit.)

Shawn 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 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. 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 CMS yesterday," 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."

OVERLAPPING AGENDAS

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 Lehrner and the physicians’ association, as well as the drug companies and dialysis operators that dominate the industry.

When Lehrner assumed a series of leadership roles at the renal physicians group, 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. Overall, kidney care doctors, companies and lobbyists have donated at least $140,000 to Berkley’s congressional campaigns.

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.

 

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