CMS chief Dr. Berwick still may face hearings

Republican lawmakers and some policy experts say the recess appointee's tenure won't carry the same weight as if he had been confirmed by the Senate.

By Chris Silva — Posted July 26, 2010

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Republicans in both the House and Senate are demanding hearings with Donald M. Berwick, MD, the new administrator of the Centers for Medicare & Medicaid Services, and at least one key committee Democrat indicated that the GOP may get its wish.

Dr. Berwick was appointed to lead CMS by President Obama in July when Congress was in recess, thus bypassing the usual nomination process in the Senate. Obama said that the post was too important to allow the nominee to be held up for political purposes. Republicans were objecting to the nominee for past statements that they perceived as supporting care rationing and socialized medicine.

The recess appointment drew sharp criticism from Republicans and at least one top Democrat. In July 14 letters addressed to Sen. Max Baucus (D, Mont.), the Senate Finance Committee's chair, and to Rep. Sander Levin (D, Mich.), the House Ways and Means Committee chair, Republican lawmakers asked for hearings with Dr. Berwick, citing the critical role he will play as provisions of the new health reform law take effect.

"We would request that the committee call a hearing as soon as possible so that the president's recess appointment does not result in circumventing the open public review that should take place for a nomination of such importance," stated the letter to Baucus, which was signed by Sen. Charles Grassley (R, Iowa), the Finance panel's ranking GOP member, and other Republican members of the committee. A hearing with Dr. Berwick "is all the more important because the agency will be responsible for numerous and significant changes to federal health programs, including the largest Medicaid coverage expansion since the program's creation."

Ways and Means Republican members similarly requested a hearing with Dr. Berwick because "members of Congress and the American people were denied the opportunity" to hear his testimony, particularly on how he intends to run an agency that controls nearly $800 billion in taxpayer funds annually.

Even Baucus was critical of the course taken by the Obama administration.

"I'm troubled that, rather than going through the standard nomination process, Dr. Berwick was recess appointed," Baucus said in a July 7 statement. "Senate confirmation of presidential appointees is an essential process prescribed by the Constitution that serves as a check on executive power ... ensuring that crucial questions are asked of the nominee -- and answered." Baucus had not scheduled any confirmation hearings for Dr. Berwick since his nomination three months earlier.

Statements from Baucus' camp indicated that the Finance Committee now would call Dr. Berwick to a hearing to ask how he intends to lead CMS in the wake of health system reform becoming law. At this article's deadline, however, no hearing date had been set.

"Ensuring that health care reform is implemented properly to deliver the high-quality care and affordable coverage the law was designed to produce is an oversight role Chairman Baucus takes seriously, and he fully expects that CMS Administrator Berwick will testify before the committee on that topic and other important health policy matters in the near future," a Finance Committee aide said.

A controversial process

Some policy experts also said they felt uneasy about the way Dr. Berwick became CMS chief. Under the recess appointment, Dr. Berwick can stay in his post through the end of 2011 unless he is confirmed by the Senate through the regular process. President Obama on July 19 renominated Dr. Berwick for the permanent position, a move White House aides described as routine.

Tevi Troy, PhD, is a senior fellow at Potomac Institute for Policy Studies, a public policy research institute based in Arlington, Va., and a former deputy secretary of Health and Human Services under President George W. Bush. The Senate had not completed the vetting process for the nominee, he said.

"This is a very controversial move," Troy said. He emphasized that he believes Dr. Berwick is talented and well-qualified for the position, and that he eventually would have been appointed by the Senate.

"I don't have a problem with recess appointments, but you do it after you've held the appropriate process. In this case, they circumvented the whole process," he said.

Troy, who was unanimously confirmed as HHS deputy secretary by the Senate, said Dr. Berwick will not carry the same weight with lawmakers or health care leaders. "You're never viewed the same way when you're a recess appointee compared to if you're confirmed by the Senate."

Gail Wilensky, PhD, a former Medicare administrator under President George H.W. Bush, agreed.

"Being confirmed by the Senate is an honor for anyone," said Wilensky, now senior fellow at Project HOPE, an international health advocacy organization. "It gives you a legitimacy that doesn't automatically come with a recess appointment. There is nothing good about it happening this way."

Both Wilensky and Troy also questioned why it took so long for the Obama administration to nominate someone for the post. It has been managed by acting administrators since October 2006, when Mark B. McClellan, MD, PhD, stepped down.

Despite the criticism of the White House's handling of the nominee, Dr. Berwick's appointment was widely cheered by the physician community. The American Medical Association said Dr. Berwick -- who had been president and CEO of the Institute for Healthcare Improvement in Cambridge, Mass. -- is "widely known and well-respected" among his peers, particularly for his work on improving care quality.

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