President Obama to Make Recess Appointment of CMS Administrator Republicans Attacking as 'Expert on Rationing'

by Jake Tapper , ABC News
Jul. 07, 2010

With Congress officially on recess, President Obama will on Wednesday use his ability to make recess appointments to name one of his more controversial nominees: Donald Berwick, nominee to be Administrator of the Centers for Medicare & Medicaid Services (CMS).

The April nomination of Berwick -- president and chief executive officer of the Institute for Healthcare Improvement -- was in trouble and might not have been able to meet Senate confirmation due to comments Berwick made in the past about rationing health care. Even if Berwick could have been confirmed by the Senate, Democrats have little appetite for another round of fighting about changes to the health care system, Democrats said.

In an interview last year with Biotechnology Healthcare, Berwick said society makes decisions about rationing all the time, and that 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."

He has also praised the UK's National Institute for Health and Clinical Excellence (NICE), which he said had "developed very good and very disciplined, scientifically grounded, policy-connected models for the evaluation of medical treatments from which we ought to learn."

Said Berwick, "You can say, 'Well, we shouldn't even look.' But that would be irrational. The social budget is limited -- we have a limited resource pool. It makes terribly good sense to at least know the price of an added benefit, and at some point we might say nationally, regionally, or locally that we wish we could afford it, but we can't. We have to be realistic about the knowledge base."

Berwick said the degree to which the knowledge base is "linked directly to policy and decision is a matter of choice. You could make it advisory, or you could make it mandatory, or you could make it a policy rule. But to remain ignorant of the cost implications of a drug that is marginally better than what is already out there is simply bad policy."

Because of these comments and others, Berwick was criticized by conservatives, with Senate Minority Leader Mitch McConnell, R-Kentucky, calling him an "expert on rationing." The Republican Policy Committee sought to directly tie Berwick's praise of the UK's NICE with some of the more troubling testimonials against the UK system.

In response to these and similar criticisms, a number of physicians' groups and health care organizations wrote a letter on Berwick's behalf, saying "Unfortunately, some of Dr. Berwick's speeches and writings have been quoted in ways that misrepresent his beliefs. Specifically, it has been suggested that Dr. Berwick is an advocate of health care rationing and that he in some way supports the government making health care decisions that should be made by patients and their doctors. This misrepresentation does a disservice to Dr. Berwick who has a long history as a leader in promoting patient-centered care."

Berwick, they said, "has consistently prioritized patients' needs and preferences not only through his best practice initiatives, but also by teaching health professionals how to put patients at the center of health care decision- making through IHI's health professions training work. In short, Dr. Berwick's commitment to patient-centered care is about putting control of health care decisions in the hands of informed patients and their families, working in partnership with their physicians."

White House communications director Dan Pfeiffer posted on his blog this evening that many "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. But with the agency facing new responsibilities to protect seniors' care under the Affordable Care Act, there's no time to waste with Washington game-playing."

The Centers for Medicare and Medicaid Services oversees approximately one third of all health care spending in the United States, more than $800 billion. Becker's nomination had been endorsed by President George W. Bush's two CMS administrators, Mark McClellan and Tom Scully, the American Hospital Association, the AARP, and others.

Obama has used his Constitutional ability to make recess appointments for a few other controversial nominees, including labor attorney Craig Becker, now on the National Labor Relations Board, and Chai Feldblum, now on the Equal Employment Opportunity Commission.

At this point in his presidency, President Bush had made 15 recess appointments. Obama's actions Wednesday will bring his total to 18. White House officials argued that Obama has a total of 189 nominees pending before the Senate, with almost half of them pending for more than three months.

President Bush, a White House official said, "was not facing the same level of obstruction. Twenty-eight of President Obama's nominees have been held on the Senate floor for more than three months. At this point in the Bush administration, only six of his nominees had been waiting that long."

UPDATE: Sen. John Barrasso, R-Wyo., called the recess appointment "an insult to the American people. 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."