How Our FOIA Request Was Blocked, and Why We’re Still Pursuing It
A FOIA request for documents on a Tricare-commissioned study that concluded cognitive rehabilitation therapy was not effective was met with contradictory denials and explanations from Tricare and the company that did the study.
In May 2009, the Pentagon asked a nonprofit company to study cognitive rehabilitation therapy, a painstaking and often expensive treatment program to help soldiers with brain injuries relearn tasks of daily living.
The $21,000 study, conducted by Pennsylvania-based ECRI Institute, found limited evidence that the therapy is effective. That tiny contract had a profound impact on tens of thousands of people who have suffered brain damage while serving in Afghanistan and Iraq. Tricare, the health plan for troops and many veterans, relied on its findings to deny coverage for the therapy.
Leading experts on brain injuries sharply criticized Tricare's decision, arguing that cognitive rehabilitation was a well-proven technique whose efficacy had been established by numerous scientific studies. They noted that expert committees convened by the Pentagon and the National Institutes of Health had unanimously agreed on the value of cognitive rehabilitation as a treatment.
To examine the basis of Tricare's decision, ProPublica and NPR filed a Freedom of Information Act request in March 2010 requesting a copy of the ECRI study and "all external and internal" reviews of its validity. We also asked for a copy of the contract between Tricare and the institute.
In response, officials at ECRI and Tricare have given us contradictory denials and explanations. For instance, seven months later, Tricare provided a copy of the study but said in a written letter that "no written internal review ... exists." Tricare acknowledged the existence of "external reviews" but said they would not provide them since "they were submitted voluntarily, were not contracted by" the Department of Defense "and the content is not owned by" the Department of Defense.
At the same time, a Tricare FOIA officer told ProPublica and NPR that a copy of the contract had been sent to ECRI for review. Private firms are allowed to review government contracts prior to public release to make sure that they do not contain confidential business information.
We are appealing that denial. Here's why.
ProPublica and NPR have learned that five brain rehabilitation experts conducted reviews of the Tricare study. Those reviews, according to people who have seen them, criticized the ECRI study.
Two of those reviews were called for in ECRI's contract with the Pentagon. According to ECRI officials, both were critical of the study's findings and methodology. ECRI said it stood by its report, and called the criticism part of normal scientific debate.
ECRI officials said they were willing to provide copies of those reviews to ProPublica and NPR, but that Tricare told the company that it could not do so because the reviews were owned by Tricare -- a direct contradiction of Tricare's statement to us.
"ECRI Institute declined requests to provide copies of the external reviews because, as required deliverables under ECRI Institute's contract with Tricare, they are the property of Tricare," wrote Vivian Coates, an ECRI vice president.
In addition, ECRI spokesman Laurie Menyo said that ECRI had never been asked to review a copy of the contract -- contradicting the Pentagon's statement that its release was being delayed while the company examined it.
"Our legal counsel has no record of being contacted by FOIA regarding any documentation," Menyo said in an e-mailed statement.
ProPublica and NPR has learned that Tricare asked for three additional peer reviews after it received the ECRI study. In an interview, Capt. Robert DeMartino, who directs Tricare's behavioral health department, acknowledged that these reviews were "of concern." He said Tricare planned to conduct further studies of cognitive rehabilitation.
Although Tricare did not release these reviews, ProPublica and NPR obtained copies of them. All three attacked the Tricare study in strong terms, calling it "deeply flawed," "unacceptable" and "dismaying."
One top scientist termed the ECRI study a "misuse" of science designed to deny treatment for service members. "Reviewing this report brings to mind the stance taken by the tobacco companies many years ago with regard to the relationship between cigarette smoking and various types of cancer," wrote Wayne Gordon, director of rehabilitation psychology and neuropsychology servicesat Mt. Sinai School of Medicine in New York. "They chose to turn their back on the existing evidence."
A Pentagon spokeswoman declined comment on Tricare's decision not to release the reviews, or their apparent failure to send a copy of the contract for review, citing the pending appeal.
"It is inappropriate for us to make any comments concerning the appeal or the processing of the initial FOIA request by Tricare," wrote Cynthia Smith, a Pentagon spokeswoman.
ProPublica and NPR will post the results of the decision when they are available.
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The military has failed to diagnose brain injuries in thousands of soldiers returning from overseas.
The Story So Far
Traumatic brain injury is considered the “signature wound” of soldiers fighting in Iraq and Afghanistan. Official military statistics show that more than 115,000 soldiers have suffered mild traumatic brain injuries since the wars began. Shock waves from roadside bombs can ripple through soldiers’ brains, causing damage that sometimes leaves no visible scars but may cause lasting mental and physical harm.