Berwick Recess Appointment Sparks Capitol Hill Backlash

Published May 31, 2016

Angry at President Barack Obama’s recess appointment of Donald Berwick to head the Centers for Medicare and Medicaid Services (CMS), senators on Capitol Hill continue to demand Berwick appear before a congressional committee for hearings on his nomination.

Sen. John Barrasso (R-WY), one of two medical doctors serving in the Senate, said Berwick should complete the standard vetting process and provide answers to questions about a series of controversial statements he has made.

“This recess appointment is an insult to the American people,” said Barrasso. “Dr. Berwick is a supporter of government rationing of health care. It’s something he’s bragged about, and he’s never going to have to explain his views to the American people in a Congressional hearing, and that’s just wrong. The president has made all these pledges about being accountable and transparent, and I think this approach makes a mockery of it all.”

Will Oversee Sweeping Changes

In a Finance Committee hearing, Sen. Pat Roberts (R-KS) noted Berwick will be responsible for the control of one of the most important health care positions in the nation and charged with cutting half a trillion dollars from Medicare.

“The vetting process by Senate committees plays a critical role in the review of individuals nominated to serve the public in an official capacity. As Administrator of CMS, Dr. Berwick will be in charge of implementing the most sweeping changes to our nation’s health care system in some time. At the same time, CMS is charged with finding nearly a half-a-trillion in cuts as required in the health reform bill that was jammed through Congress,” Roberts said.

Roberts previously criticized Berwick’s views on the Senate floor, noting they could pose significant ramifications for rural doctors in his home state.

“Given that all we know about Dr. Berwick are from his public statements—he expresses his ‘love’ of the British National Health System, a system which rations care to patients in order to contain costs—it is incumbent upon us to know more about his views on what services are acceptable and what medical services will get cut,” Roberts said.

Appointment Avoided Controversy

Barrasso, Roberts, and other senators maintain the White House wanted to avoid a public forum airing Berwick’s controversial views. Avik Roy, a health care analyst at Monness, Crespi, Hardt & Co. in New York City, says a confirmation battle would cost the president political capital and could’ve caused Berwick difficulty in getting approved.

“Obama didn’t want Berwick’s views, which are controversial, to be highlighted in hearings that would remind people, close to an election, of why they don’t like the Democratic approach to health care policy,” Roy said. “There would have been at least a few Democrats who would have had to disavow him.”

Recess appointments are typically made for positions that urgently need to be filled or when a president lacks the votes to have a nominee approved by a Senate controlled by the opposing political party. Barrasso notes CMS has been without a Senate-approved director since the resignation of Mark McClelland in 2006. President George W. Bush’s chosen replacement, Kerry Weems, was blocked by Senate Democrats for nearly two years, and it was 454 days before Obama chose to make a nomination for the position.

“This is a nomination that should’ve had a hearing. Maybe Sen. [Harry] Reid didn’t want to have a public discussion about rationing or reopen the debate about health care,” said Barrasso. “They have tried to manipulate the situation, claiming that ‘the Republicans blocked it,’ but that’s just not true—we’ve been demanding a hearing, but one was never scheduled. Dr. Berwick didn’t even have his paperwork done!

“I cannot recall a situation like this, where someone was recess-appointed without ever having a hearing,” Barrasso added.

CMS Administers Nearly $1 Trillion

Robert Moffit, director of the Center for Health Policy Studies at the Heritage Foundation, says Berwick’s role at CMS has gained importance under the new Patient Protection and Affordable Care Act (PPACA).

“The Secretary of HHS has to sign off on everything included in the legislation,” Moffit noted. “But HHS is a Department with a huge number of people, and the Secretary delegates many policy decisions. Berwick will be making those decisions, particularly on any item dealing with Medicare.”

Roy agrees with this assessment.

“PPACA mandates significant changes in Medicare and Medicaid that Berwick will be responsible for implementing,” Roy said. “It’s the HHS Secretary who has the most power, but the CMS Administrator is second on that list.”

According to the HHS FY2011 budget, CMS accounts for about 86 percent of the $911 billion in total HHS outlays. CMS has a budget of about $3.6 billion but oversees the vast expenditures for Medicare and Medicaid.

“If you look at S-CHIP, Medicare, Medicaid, and grant funding, we’re talking about a huge amount of federal money,” said Moffit. “Berwick’s going to control about one-third of [all] health care spending in the United States. Those programs cover millions of people, so what he thinks or doesn’t think is a critically important fact. It’s a shame we’re not going to have a chance to talk with him.”

Push for Hearings Continues

Although Berwick can serve as a recess appointee for roughly 16 months, until the end of 2011, Roberts says he will continue to argue for hearings to examine these issues.

“The American people deserve to hear how Dr. Berwick will implement the major changes called for in the so-called health care reform bill and how those changes impact their health care,” Roberts said.

Benjamin Domenech ([email protected]) is managing editor of Health Care News. Loren Heal ([email protected]) writes from Neoga, Illinois.