Berkley pushes back on report challenging her ethics

WASHINGTON — Rep. Shelley Berkley often jokes about being married to a doctor. Her 1999 marriage to Dr. Larry Lehrner, a kidney specialist, made her instantly wealthy and, she would say, gave her a trusted sounding board on health care matters.

But Berkley on Tuesday was pushing back against a published report that their relationship has created conflicts of interest for the eight-term member of Congress. The New York Times reported in a front-page story that the Las Vegas Democrat took actions as a U.S. House member that have benefited
Lehrner and his lucrative practice, Kidney Specialists of Southern Nevada.

Over the past five years, Berkley “pushed legislation or twisted the arms of federal regulators to pursue an agenda that is aligned with the business interests of her husband,” the newspaper reported in a lengthy piece.

“The intermingling of Ms. Berkley’s public and private life … is striking even among her peers on Capitol Hill,” the newspaper said.

“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.”

The accusations of conflict could complicate life for Berkley, who is running for the U.S. Senate in 2012.

The article is a sign of the scrutiny Berkley faces as she undertakes what is expected to be a close contest against Sen. Dean Heller, R-Nev. It comes after years of not facing serious competition for her U.S. House seat, which would have brought along with it closer dissections of her record.

On the political front, Republicans were silent on Tuesday. “The story speaks for itself, and we will see where it goes,” one GOP strategist said. Meanwhile, Senate Majority Leader Harry Reid, D-Nev., said through a spokesman that Berkley still has his “full support” for Senate.

Berkley issued a rebuttal through her Senate campaign that said the newspaper “ignored crucial facts.”

“Shelley Berkley has a long history of fighting for better healthcare for patients — she has sponsored or cosponsored 78 pieces of healthcare legislation that are not related to kidney care including osteoporosis, cancer, hepatitis C, and heart disease,” the statement said.

“I will never stop fighting on behalf of my constituents just because my husband is a doctor — as I won’t stop standing up for veterans because my father served in World War II,” Berkley said in the statement.

The paper on its website published documentation to accompany its story, tracing the growth of Lehrner’s practice from three doctors and a single office to 21 doctors and more than a dozen offices including dialysis centers in partnership with DaVita, a large dialysis chain.

At the same time, Berkley emerged as a kidney champion, joining a congressional caucus that defended federal funding for kidney care. With others, she lobbied colleagues in 2008 and this year not to change the way the government reimburses doctors and dialysis units.

According to campaign finance records. Berkley received $7,000 from Renal Physicians Association, an industry political action committee that Lehrner helped establish in 2006. Separately, a PAC representing DaVita donated $18,000 since 2005, and its executives added another $26,000.

The paper said Berkley did not agree to an interview. The newspaper did post to its website questions it posed to the lawmaker and responses from her campaign.

Congressional ethics watchdogs say House rules are fuzzy on conflicts of interests. If Berkley took actions that helped kidney doctors as a profession, not just her husband for instance, that could be considered technically acceptable, said Melanie Sloan, executive director of the Center for Responsibility and Ethics in Washington.

“On the other hand, there is the rule about appearances, and members are supposed to avoid even the appearance of a conflict, and clearly she has blown by that,” Sloan said.

Sloan said the organization probably will not file an ethics complaint against Berkley based on the issues raised by the New York Times

“Under the conflicts rules, they probably would not find she engaged in a conflict,” Sloan said. “I’m not saying there is no problem. It’s just a fine line.”

The New York Times piece focuses in part on Berkley’s role in lobbying the federal Centers for Medicare and Medicaid Services in 2008 to reverse an order that revoked kidney transplant certification for the University Medical Center in Las Vegas, where Lehrner’s partnership was medical director of the kidney department.

The federal agency cited a review of hospital statistics that showed five patients had died within a year of their transplants, a death rate twice the national average.

Hospital officials contended the program, the only transplant center in Nevada, was being unfairly penalized, and members of the state’s delegation to Congress sent a letter to the agency’s acting administrator expressing “strong disagreement” with the decision.

Soon afterward, Medicare administrators agreed to override the decertification.

“Part of a resulting agreement involved expanding the staff of kidney specialists,” the newspaper reported. “The hospital turned to Lehrner to recruit two transplant nephrologists, who … work more directly with the hospital’s new transplant surgeon.”

UMC chief executive Brian Brannman told the newspaper Lehrner’s practice was the sole bidder for the contract that was renewed in December 2010 for $738,000. He said it had nothing to do with Berkley.

Efforts to rescue the transplant program were justified, he said. “As the only transplant center in Nevada, patients would be forced to travel out-of-state for treatment if our program would have shut down in 2008.”

According to Berkley’s rebuttal. UMC reached out to the delegation to save the transplant program. She said that it was then-Rep. Jon Porter’s idea to write a joint letter and that he was the first official to meet with Medicare officials

Peter Urban of the Stephens Washington Bureau contributed to this story. Contact Stephens Washington Bureau Chief Steve Tetreault at stetreault@stephens or 202-783-1760.

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