What Does Don Berwick’s Recess Appointment Mean for Don Berwick?

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The Administration announced last night that it would use a recess appointment to get Donald Berwick in place as the Administrator of the Centers for Medicare and Medicaid Services (CMS). Recess appointments are controversial and this is no exception. Republicans are downright angry that the White House, apparently without much warning, decided to circumvent Congress and critics who were gearing up for a high-profile fight over Berwick’s past statements.

(Among other impolitic utterings, Berwick has said he “is romantic about the NHS,” the UK’s oft-maligned nationalized health system, and believes “excellent health care is by definitional redistributional.”)

Maybe the Administration didn’t have the stomach for another partisan health care reform battle. Maybe it didn’t feel confident in its ability to defend Don Berwick’s contention that rationing should not be the boogeyman of health care policy. Maybe vulnerable Congressional Democrats successfully lobbied for a recess appointment, eager to avoid a contentious confirmation hearing that would bring health care reform to the fore just ahead of this fall’s election. Most likely, it was all of these things.

There was no doubt that Berwick’s confirmation hearing would have created fireworks and there was a chance he would have lost the battle and not garnered the votes needed to be confirmed. His past statements, in or out of context, were a perfect means to caricature the Administration’s health care policies as being all about government control at the expense of quality care. (This, despite that Berwick’s passions include better quality care and a better experience for patients in the hospital.)

In other words, it’s abundantly clear what motivated the White House to install Berwick via a recess appointment. But why do so less than three months after he was officially nominated? It’s not as if this is the only congressional recess on the calendar. CMS has been without a permanent head since 2006 and Berwick’s name has been bouncing around as a leading candidate for more than a year. And how hampered will Berwick be in his job because of the means by which he got it?

That’s what Gail Wilensky wants to know. She ran Medicare and Medicaid under George H.W. Bush and advised Congress on Medicare reimbursements from 1997 to 2001. She is also among a group of CMS administrators who worked in Republican Administrations and who admire Berwick and strongly support his nomination. (It should be noted that the list of medical societies, hospital groups, disease advocacy organizations and others who want Berwick to have the job is seven single-spaced pages.)

“It may have come to this but it didn’t have to happen so soon,” says Wilensky. Installing Berwick during a short Senate recess so soon, is “an in your face, picking a fight response and the guy that’s going to take it on the chin is Don Berwick.”

Wilensky points out that Berwick’s ability to develop relationships with members of Congress – who he’ll need to confirm him when his recess appointment expires in late 2011 – has been severely damaged by this quick move by the White House.

“[The Administration] sat and sat and dithered and dithered and now it’s like two months and the sky is falling,” adds Wilensky.

During the next year, Berwick will be charged with ushering out reams of regulations putting the Medicare and Medicaid provisions of the Affordable Care Act into practice. He will also oversee early design of cost control and quality improvement pilot projects that could eventually transform the whole health care system. He will likely be called to testify before Congress in his role overseeing one of the largest bureaucracies in government. How smoothly will all of this go in light of the Administration’s decision? A confirmation hearing, however contentious – if it results in an actual confirmation – lends credibility to a powerful bureaucrat like the CMS administrator.

Sen. Max Baucus, the Democratic in charge of the Finance committee where Berwick nomination hearing would have taken place, said in a statement today that he’s “troubled” by the recess appointment, adding, “Senate confirmation of presidential appointees is an essential process prescribed by the Constitution that serves as a check on executive power and protects Montanans and all Americans by ensuring that crucial questions are asked of the nominee – and answered.”

According to the New York Times, Berwick’s recess appointment “was somewhat unusual because the Senate is in recess for less than two weeks and senators were still waiting for Dr. Berwick to submit responses to some of their requests for information. No confirmation hearing has been held or scheduled.”

Did the Administration jump the gun? The White House announced Berwick’s recess appointment in a blog post written by communications director Dan Pfeiffer asserting that,
“Republicans in Congress have made it clear in recent weeks that they were going to stall the nomination as long as they could, solely to score political points.”

So the White House is trying to stay a step ahead of Republicans – playing defense even before they could run their offensive play against Berwick, labeling the pediatrician, highly regarded researcher and expert on health care policy simply an “expert on rationing.” How this will affect Berwick, who is a brilliant policy wonk but whose provocative public statements exposed his political naivete?

Well, Berwick is getting a lesson in politics now and it’s one that Republicans will eagerly remind him of every time he comes into contact with them in the next 18 months or so.

(For information about Berwick, check out this rundown from Kaiser Health News.)