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San Francisco City Attorney David Chiu sent a letter to U.S. News & World Report last June seeking information on the company’s hospital rankings, which have come under scrutiny from medical experts for imprecise methodology and bias.

The letter also demanded that U.S. News publicly disclose the payments it receives from the hospitals it endorses, as required by federal regulations. The City Attorney also demands U.S. News substantiate its advertising claims, explain its methodology and how it intends to correct biases, and immediately publicly disclose the revenue it receives from hospitals.

“Consumers use these rankings to make consequential health care decisions, and yet there is little understanding that the rankings are fraught and that U.S. News has financial relationships with the hospitals it ranks,” said City Attorney Chiu. “The hospital rankings appear to be biased towards providing treatment for wealthy, white patients, to the detriment of poorer, sicker, or more diverse populations. Perverse incentives in the rankings risk warping our health care system. Hospitals are treating to the test by investing in specialties that rack up the most points rather than in primary care or other worthy specialties.”

“Smaller, rural, or community hospitals do not have the resources to compete in the rankings. This creates a cycle in which patients and crucial research funding flow to higher ranked hospitals instead of smaller, community hospitals. Those smaller hospitals continue to be under resourced and do not perform well in the rankings or are not ranked at all.”

In a thorough response to the letter dated July 19, 2023 U.S. News raised grave, pointed concerns about the City Attorney’s infringement on U.S. News’ rights under the United States and California Constitutions and California’s Reporters’ Shield Laws, while also explaining that its ranking methodology is published annually, communicated widely, and is wholly transparent.

On January 9, 2024, the City Attorney escalated his inquiry by issuing two subpoenas seeking documents and information relating to U.S. News’ hospital rankings. U.S. News escalated its response on January 23rd by filing a 44 page lawsuit against the City Attorney in the U.S. District Court for the Northern District of California.

In its lawsuit, U.S. News argues that the First Amendment to the United States Constitution safeguards the freedom of speech and the freedom of the press against viewpoint-based discrimination by the government. The Liberty of Speech Clause in the California Constitution, Art. I, § 2, similarly protects these foundational rights. And California’s Reporters’ Shield Law, embodied in the California Constitution (Art. I, § 2, subd. (b)) and California law (Cal. Evid. Code § 1070), defends the press against intrusive inquiries by the government into unpublished information, news gathering, and methodologies.

It goes on to allege the Subpoenas make clear that the City Attorney is using governmental process to engage in viewpoint discrimination – and, indeed, is proceeding as though he holds censorial (or editorial) authority over how U.S. News performs its journalistic work ranking hospitals. The Subpoenas ask U.S. News to “[d]escribe [U.S. News’] basis for not including measures of health equity in its rankings of adult Hospitals”; “[d]escribe how, if at all, [U.S. News] has incorporated primary and preventive care in each annual version of the Best Hospitals rankings”; and “[d]escribe [U.S. News’] basis for believing that Medicare outcomes information from at least 18 months ago accurately reflects current Hospital outcomes.”

U.S. News seeks a declaration that the Subpoenas violate the First and Fourteenth Amendments to the United States Constitution, Article I, section 2 of the California Constitution, and section 1070 of the California Evidence Code. U.S. News also seeks an order permanently enjoining Defendant from enforcing the Subpoenas.

Chiu, in a statement provided to The Los Angeles Times, vigorously disputed those claims. “It’s ironic that U.S. News claims its speech has been chilled, when the purpose of the company’s lawsuit is to chill and impede a legitimate government investigation of potential unlawful business practices,” Chiu said.

“Despite U.S. News’ stated commitment to transparency, the company has spent months evading tough questions about its undisclosed financial links to the hospitals it ranks. This lawsuit is yet another baseless attempt to avoid these questions and a waste of judicial resources,” Chiu said. “U.S. News is not above the law, and its bullying litigation tactics will not deter us from standing up for patients and consumers.”