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Tavenner: Transparency for Thee But Not for Me

CMS head who deleted her emails oversees Obamacare’s ‘Sunshine Act.’

By 8.11.14

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It has been widely reported that the latest Obama administration official to delete emails requested by congressional investigators is Marilyn Tavenner, who runs the Centers for Medicare and Medicaid Services (CMS). Far less coverage, however, has been devoted to the ironic fact that Tavenner’s agency administers the Physician Payment Sunshine Act. The “Sunshine Act,” as it is generally known, is a provision of Obamacare meant to ensure that physicians conduct business transactions with complete transparency. In other words, the very bureaucrat whose emails have conveniently gone missing oversees the agency tasked with keeping your doctor and his business associates honest.

The Sunshine Act requires manufacturers of drugs and other medical products to report anything worth more than $10.00 that they have given a physician. This includes food. If a software vendor takes your doctor out to lunch and buys him a steak, it must be reported on the CMS “Open Payments” website. Failure to do so can result in penalties of up to $1 million. And Tavenner has by no means played a passive role in the implementation of this Byzantine statute. Late last year, ignoring the law’s explicit exemption of medical textbooks and peer-reviewed journals, she issued an imperial decree to the effect that all such materials “must be reported either as ‘education’ or a ‘gift.’”

Where transparency is concerned, however, Tavenner’s philosophy is evidently “sunshine for thee but not for me.” Like Lois Lerner and other high level Obama administration bureaucrats, she deep-sixed emails that had been subpoenaed by Congress. And a statement released by Rep. Darrell Issa, chairman of the House Oversight Committee, suggests that he is not amused: “Today’s news that a senior HHS executive destroyed emails relevant to a congressional investigation means that the Obama Administration has lost or destroyed emails for more than 20 witnesses, and in each case, the loss wasn’t disclosed to the National Archives or Congress for months or years, in violation of federal law.”

Moreover, it appears that Tavenner and her underlings have deliberately withheld information from Congress about her missing emails. Referring specifically to the Tavenner revelation, Issa’s statement said, “Just this week, my staff followed up with HHS, who has failed to comply with a subpoena from ten months ago. Even at that point, the administration did not inform us that there was a problem with Ms. Tavenner’s email history.” And Issa clearly isn’t buying the CMS claim that these emails were inadvertently deleted: “It defies logic that so many senior Administration officials were found to have ignored federal record keeping requirements only after Congress asked to see their emails.”

But Tavenner’s cavalier disregard for federal rules concerning the retention of emails and other records shouldn’t be a surprise. Her history suggests an indifferent attitude about such regulations as they relate to her and her fellow apparatchiks. Before she took over as the administrator of CMS, Tavenner was the agency’s deputy principal administrator. In that capacity she oversaw the activities of the Center for Consumer Information and Insurance Oversight (CCIIO). This, you may recall, is the bureaucracy that issued the infamous Obamacare waivers. Not coincidentally, the CCIIO ignored repeated congressional requests for the criteria used to determine eligibility for those waivers.

All of which suggests that Tavenner is the last person who should be overseeing the implementation of the Sunshine Act. But it gets worse, and not merely because of her double standard concerning transparency. Rep. Issa’s committee wants Tavenner’s emails so they can be compared to the testimony she provided to Congress about the botched rollout of Healthcare.gov. The need to do so was underscored last week when her agency was forced to take down the website at which physicians must register to comply with the Sunshine Act: “Another glitch-filled government health site goes down.” To quote the immortal Yogi Berra, it’s déjà vu all over again.

Open Payments is, like Healthcare.gov, a train wreck. As Sanjay Gupta reports, physicians attempting to register on the site face an absurdly cumbersome process that takes hours to navigate and fails to provide a confirmation when the ordeal is complete. That is not, however, the reason the site was taken down. It turns out that Open Payments has been publicizing inaccurate information. As a CMS spokesman delicately phrased it, “After an assessment of the data resulting from a complaint… we have taken the system offline temporarily and will work with the industry to eliminate incorrect payment records.” This is doubtless a great comfort to physicians nationwide.

When Marilyn Tavenner replaced CMS administrator Donald Berwick, the latter’s departure engendered so much relief that she received very little serious scrutiny. One publication that did raise questions was the Boston Globe: “While Tavenner worked for HCA, the company was busily enhancing its profit margin by defrauding Medicare… it hardly seems wise to put her in charge of the government system her company helped defraud.” Tavenner wasn’t implicated in the HCA fraud, but her high-handed behavior regarding the Sunshine Act combined with the deletion of her emails suggests that she applies a different standard of honesty to herself than she imposes on the hoi polloi.

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About the Author

David Catron is a health care consultant. He has an MBA from the University of Georgia and blogs at Health Care BS.