By Jamie A. Gregorian, Esq.
Recess appointment receives mixed reviews
On July 7, in a move that delighted Democrats and infuriated Republicans, President Obama used his recess appointment power to install Donald M. Berwick, MD, as administrator of the Centers for Medicare & Medicaid Services (CMS). The White House statement announcing the appointment accused Senate Republicans of stalling Dr. Berwick’s nomination “solely to score political points” and said that “there’s no question that Don Berwick is the right choice to be our next CMS administrator.”
Donald M. Berwick, MD
Courtesy of the Institute for Healthcare Improvement
“This recess appointment is an insult to the American people,” said U.S. Senator and orthopaedic surgeon, John A. Barrasso, MD (R-Wyo.). “Dr. Berwick is a self-professed supporter of rationing health care and he won’t even have to explain his views to the American people in a Congressional hearing. Once again, President Obama has made a mockery of his pledge to be accountable and transparent.”
Rep. Tom Price, MD (R-Ga.), also an orthopaedic surgeon, called Dr. Berwick’s views “radical.”
Still, several large medical interest groups lauded the appointment. The American Medical Association, the AARP, and the Association of American Medical Colleges have all voiced their support for Dr. Berwick.
The situation at CMS
CMS has been without a permanent administrator since Mark McClellan, MD, stepped down from the position in September 2006. Dr. Berwick was nominated on April 19, 2010, but confirmation hearings were never held. With the Obama administration’s early focus on health care, the absence of a nominee for the CMS administrator position prior to last April baffled many observers.
CMS is the nation’s largest buyer of health care, and its programs are central to efforts to overhaul the healthcare system. Medicare, Medicaid, and other programs overseen by the agency provide health insurance to 98 million people. CMS pays out more than one billion claims per annum and has a budget greater than
The role of the CMS administrator is to direct this effort and to develop effective relationships between federal programs, private health programs, and federally supported health-related programs.
Because more Americans are insured through Medicare than any private insurer, the administrator of CMS has significant influence over not just federal healthcare policy, but also private insurance policies. Private insurers often wait for Medicare to approve or disapprove coverage of new treatments before doing so themselves. Those decisions made by Medicare ultimately are the responsibility of the CMS administrator.
Dr. Berwick, a pediatrician and a professor at Harvard Medical School, has been accused of endorsing healthcare rationing and favoring the British national healthcare plan as ways of addressing the need for healthcare reform in the United States.
Many detractors point to a statement made by Dr. Berwick, “the decision is not whether or not we will ration care—the decision is whether we will ration with our eyes open. And right now, we are doing it blindly.”
Proponents of the appointment, on the other hand, tout the broad support that Dr. Berwick has in the medical community, including from former CMS administrators Tom Scully and Dr. McClellan.
As the president and chief executive officer of the Institute for Healthcare Improvement, Dr. Berwick has an extensive background in public policy. A pediatrician by training, he is clinical professor of pediatrics and health care policy at the Harvard Medical School and professor of health policy and management at the Harvard School of Public Health.
Dr. Berwick has published more than 130 scientific articles in numerous professional journals on subjects relating to healthcare policy, decision analysis, technology assessment, and healthcare quality management. His research and commentaries have appeared in The Journal of the American Medical Association, The New England Journal of Medicine, and The British Medical Journal. He is the coauthor of Curing Health Care: New Strategies for Quality Improvement.
Dr. Berwick will remain CMS administrator until late 2011, after which he will either need to be confirmed by the Senate or leave the post.
Jamie A. Gregorian, Esq., is the manager of research advocacy at AAOS. He can be reached at firstname.lastname@example.org
The process of a recess appointment
According to Article II, Section 2 of the U.S. Constitution, “The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.”
In plain English, this means that while Senate confirmation is required for a number of positions (including CMS Administrator), when a position that requires confirmation is vacant, the president may appoint someone to fill that role until the end of the next Congress, which typically comes in the next 12 to 16 months after the appointment. If the appointee has not been confirmed by the Senate prior to the end of the next Senate session, however, he or she will have to vacate the position.
Dr. Berwick’s recess appointment was the 18th made by President Obama. President George W. Bush made 171 recess appointments during his 8 years in the White House, while President Bill Clinton made 139.