Berwick Appointed to Head CMS Without Senate Vote

July 07, 2010

July 7, 2010 — Pediatrician Donald Berwick, MD, a leading advocate of patient safety and quality improvement in healthcare, became the head of the Centers for Medicare and Medicaid Services (CMS) today without a bruising Senate confirmation process.

President Barack Obama nominated Dr. Berwick to the post of CMS administrator in April. The healthcare industry, including organized medicine, by and large has applauded the nomination, saying Dr. Berwick is an excellent choice for implementing many of the provisions of healthcare reform legislation passed earlier this year.

Supporters point to his role as president and chief executive officer of the Institute for Healthcare Improvement, a nonprofit group that has helped hospitals and physicians improve patient care, save lives, and eliminate waste in the process. However, Senate Republicans who view Dr. Berwick as a proponent of healthcare rationing and European-style socialized medicine had vowed to challenge his nomination.

Under normal circumstances, the Senate Finance Committee would have held a hearing on the nomination, with Dr. Berwick fielding questions from both supporters and critics. Then the committee would have voted on whether to report the nomination to the full Senate for its approval.

President Obama sidestepped that process — which Senate Republicans could have derailed with a filibuster — by taking advantage of a Constitutional provision that allows the president to make appointments while Congress is between legislative sessions or in recess during a session. Congress recessed for the Fourth of July holiday and will not reconvene until Monday, July 12.

So-called recess appointments do not require Senate confirmation, but they come with the disadvantage of expiring at the end of the Senate's next session, which for Dr. Berwick would be at the end of the 2011. However, President Obama could extend Dr. Berwick's tenure by submitting the nomination to the Senate again or making another recess appointment.

The president issued a statement today saying that he was making a recess appointment in the case of Dr. Berwick and 2 other nominees for federal office because "many in Congress have decided to delay critical nominations for political purposes." The recess appointments, he said, would allow the appointees "to get to work on behalf of the American people right away."

Permanent CMS Administrator Needed Immediately, Says AAFP President

Recess appointments have been a common practice for recent Republican and Democratic presidents. George W. Bush, for example, made 171 recess appointments, and his predecessor, Bill Clinton, made 139, according to the Congressional Research Service, an agency of Congress.

Not all recess appointments have sparked as much controversy as Dr. Berwick's, however. Senate Republicans today are accusing President Obama of sneaking Dr. Berwick into his CMS post without first letting him explain his admiration for the UK's National Health Service or his past statements on rationing.

"This recess appointment is an insult to the American people," said Sen. John Barrasso, MD (R-WY), an orthopedic surgeon, in a press release.

On the other side of the aisle, Sen. John Kerry (D-MA) said President Obama needed to make the recess appointment to circumvent cynical Republican stalling tactics. "Republicans screamed that these federal programs [Medicare and Medicaid] were in trouble, then tried to deny the administration the capable guy the President had chosen to oversee them," Sen. Kerry said in a written statement.

Lori Heim, MD, the president of the American Academy of Family Physicians, told Medscape Medical News that the recess appointment "serves CMS, physicians, and the public very well" because the Obama administration could not afford to wait any longer to fill the post. CMS, Dr. Heim explained, has not had a permanent administrator since Mark McClellan, MD, an appointee of George W. Bush, stepped down from the position in September 2006.

"With healthcare reform legislation comes a renewed need to have a strong CMS administrator because of all the implementation that will fall to CMS," said Dr. Heim, whose medical association supported Dr. Berwick's nomination.

Dr. McClellan, as well as Thomas Scully, another former CMS administrator appointed by George W. Bush, have both declared their support for Dr. Berwick. Such endorsements, taken together with Republican opposition to Dr. Berwick, demonstrate that "political debate is not about somebody's qualifications," Dr. Heim said. "It is strictly on a partisan basis."

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