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A big day for the Fifth on Capitol Hill

This article first appeared in the St. Louis Beacon, May 22, 2013 - WASHINGTON – On opposite sides of Capitol Hill on a busy Wednesday, two witnesses ruffled some feathers when they invoked their Fifth Amendment rights against self-incrimination.

The witness who got all the attention was the head of the Internal Revenue Service’s tax-exempt organizations branch, Lois G. Lerner, who told the House Oversight committee that she had done nothing wrong — but invoked the Fifth in declining the answer questions about the scrutiny of tea party groups seeking tax-exempt status.

"Surprising," is how U.S. Sen. Roy Blunt, R-Mo., later described that legal move. At the hearing, irritated GOP members of the House panel argued that Lerner might have technically waived her Fifth Amendment rights by starting off with a statement.

A few hours later on the Senate side, the head of a medical equipment firm also invoked the Fifth when U.S. Sen. Claire McCaskill, D-Mo., sought to ask him about reports by Missourians that misleading tactics by companies that sell durable medical equipment — such as diabetic testing apparatus — may be costly to Medicare and Medicaid.

McCaskill said she respected the businessman’s right to invoke the Fifth, but added: "We know that your company has been speaking to the press about this issue and we're hopeful that at some point in time your company will be in a position that you can speak to the committee under oath in the same manner."

At the same hearing of the Senate Homeland Security subcommittee on financial and contracting oversight, the head of another medical equipment firm — Dr. Steve Silverman, of Med-Care Diabetic & Medical Supplies — defended his company and answered McCaskill’s questions for nearly a half hour. McCaskill's panel had subpoenaed both officials.

At a hearing last month on the same topic, McCaskill had complained that the companies sent no one to testify. She said a Chesterfield internist and other Missourians had complained about overly aggressive tactics by Med-Care and the other firm, U.S. Healthcare Supply LLC, in trying to convince older patients that they needed certain durable medical equipment.

But Silverman said Wednesday that his firm’s employees had followed all of the appropriate rules in contacting potential patients. Denying that some sales employees had made "cold calls" to such people, Silverman said they only contacted people who had indicated in the firm’s internet ads that they were interested in learning more.

But McCaskill pressed him about whether it is fair to rely on the internet habits of the elderly in making such sales calls. "My late mother ... clicked on a lot of things on the internet that she shouldn’t have clicked," the senator said.

Both Silverman, in his testimony, and a lawyer for U.S. Healthcare Supply — in a five-page letter to McCaskill that was also released to the media — questioned the subcommittee’s interpretation of an analysis made by an auditor for the Centers for Medicare and Medicaid Services (CMS) relating to the number of "improper" claims by the firms.

At last month’s hearing, an official in charge of the "program integrity" effort acknowledged problems in monitoring durable equipment claims, but said the CMS now has in place a "comprehensive strategy to further reduce the fraud, waste and abuse that result in improper payments."

McCaskill said she wanted to find a way to hold down skyrocketing increases in Medicare costs, and that more effectively controlling the costs of durable medical equipment might be one way to hold the line.

"Wouldn’t it be better if doctors are the ones providing this medical equipment — and if that care isn’t instigated by third parties," suggested McCaskill. "We’ve got to bring Medicare costs under control and reforms in this industry are one way to do that."

Rob Koenig is an award-winning journalist and author. He worked at the STL Beacon until 2013.