His nomination to the post drew criticism from many in the GOP, who say that Berwick's past support for the U.K.'s government-run healthcare system, coupled with his writings that they say indicates he supports rationing of healthcare, disqualified him for the job. Political observers say Republican lawmakers view the nomination of Berwick—a founder, president and CEO of the Institute for Healthcare Improvement, a Cambridge, Mass.-based not-for-profit—as an opportunity to continue debate on the health reform plan passed in March.
Last week, that move came to a head. Deciding to sidestep what would have been a lengthy and contentious confirmation process on Capitol Hill, Obama used what's known as a recess appointment to install Berwick to the top post at the all-important agency that runs Medicare and Medicaid. The use of such an appointment, granted to the president under the Constitution, has grown in popularity dating back to President Bill Clinton in the 1990s.
“It's unfortunate that at a time when our nation is facing enormous challenges, many in Congress have decided to delay critical nominations for political purposes,” Obama said in a written explanation of why he decided to skirt Congress.
For many Republicans, the presidential end around was seen as yet another straw on what has become an increasingly strained camel's back. “This recess appointment is an insult to the American people,” says Sen. John Barrasso, M.D., (R-Wyo.), a physician and frequent critic of Obama's nominee. “Dr. Berwick is a self-professed supporter of rationing healthcare, and he won't even have to explain his views to the American people in a congressional hearing.”
Other GOP senators sounded a similar note. “This recess appointment proves the Obama administration did not have the support of a majority of Democrats and Republicans in the Senate and sought to evade a hearing,” adds Sen. Pat Roberts (R-Kan.), who as a member of the Senate Finance Committee would have helped to decide Berwick's fate.
But that decision—at least for now—has been stripped from the committee's jurisdiction. Instead, by using the scheduled Independence Day recess to make the appointment, Berwick can hold the post until late 2011 without interference from lawmakers.
At the outset, Berwick will face a litany of tasks focused on making wholesale changes to how the federal government pays for healthcare.
On the delivery side, Berwick will lead the implementation of a value-based purchasing system for hospitals, which goes into effect in 2012; oversee changes to physician quality efforts; and shape hospital payment provisions.
Next January, the CMS will house a new Center for Medicare and Medicaid Innovation, which will be charged with developing, testing or possibly expanding new payment and delivery models. And if he should stay so long, Berwick will manage a national pilot program on payment bundling, which starts in 2013 and runs through 2017.
“If ever there was a time the inbox was full, it's now,” says Richard Umbdenstock, president and CEO of the American Hospital Association. Berwick “has dedicated his career to engaging hospitals, doctors, nurses and other healthcare providers to improve patient care,” Umbdenstock says. “A physician and innovator in healthcare quality, his knowledge of the healthcare system makes him the right choice.”
And Berwick's appointment was hailed in a flurry of support from other healthcare industry representatives and consumer groups. The provider world cheered the idea that for the first time since 2006, the CMS would have a permanent administrator rather than a series of interim candidates. Though far from a revolving door, the agency has been without a full-timer at the helm since Mark McClellan, M.D., left the job four years ago. The difference between having a confirmed administrator over a series of interim ones is subtle, and to be sure the agency has progressed under a number of temporary directors, says Chip Kahn, president of the Federation of American Hospitals.
Hospital and health system executives say Berwick's advocacy for healthcare quality and efficiency has earned him the respect of providers, and he brings valuable experience to the CMS as the agency implements provisions of the health reform law.
“He has been an engine of healthcare reform before we were anywhere close to achieving healthcare reform legislatively,” says Alan Aviles, president and CEO of the New York City Health and Hospitals Corp. Aviles says hospitals, under initiatives led by Berwick and the IHI, have improved the safety, effectiveness and efficiency of care while reducing wasteful spending. “He is the ideal choice for helping CMS to most strategically advance a set of pilots and demonstrations that will inform the course of broader payment reform,” Aviles says.
James Kaskie, president and CEO of Kaleida Health, Buffalo, N.Y., describes Berwick as “a pioneer in advancing quality as the most important driver of the healthcare system,” and says he was excited and hopeful on the physician's appointment to head the CMS. Kaskie also says he is glad to see the CMS fill the vacancy at the top. Interim leaders lack authority to make changes or set an agenda, he says.
Elliot Sussman, M.D., president and CEO of Lehigh Valley Health Network, Allentown, Pa., says patients, nurses, doctors and administrators identify with Berwick's emphasis on measuring quality, safety and value and his focus on patients. “I think people care” that healthcare is centered on patients, he says. “That means a lot. You take into account who I am, what I believe, what's important to me,” he says.
Karen Ignagni, president and CEO of America's Health Insurance Plans, lauded Berwick's experience, pledging to work with him to help shape the wide reform blueprint that Congress passed earlier this year. “I think I've been pretty widely quoted as saying what our community believes, that Don Berwick comes to this job with a very significant set of important experience with respect to quality,” Ignagni told reporters last week. Ignagni, who heads one of the most influential associations within the healthcare realm, added that his experience would be essential “as we move the healthcare system into the 21st century.” She added: “We've had a long relationship with (Berwick), and we have nothing but the utmost respect for his qualifications.”
Physician groups also back the appointment. “Dr. Berwick's career and work at the Institute for Healthcare Improvement illustrates the drive to provide patient-centered care, patient safety, quality improvement and care coordination in healthcare,” says J. Fred Ralston Jr., M.D., president of the American College of Physicians, in a written statement. “He is well-respected in the healthcare community and known for his desire to bring constructive change to healthcare delivery. We share these objectives and believe Dr. Berwick will be an able administrator and partner for change,” Ralston says.
Consumers Union supports Berwick as CMS administrator. “We are relieved that President Obama moved ahead on this appointment,” says Jim Guest, president and CEO of Consumers Union, in a written statement. “Don is a healthcare leader of extraordinary skill, knowledge and compassion. He's the right person for the job at this critical moment. He will make a fundamental difference in improving the way the system works for Medicare and Medicaid beneficiaries, and everyone,” he says.
Still, with the rhetoric in Washington as heated as the temperatures, the Obama administration's move has effectively set up what will surely be a series of highly anticipated Hill visits by Berwick in the coming weeks.
“Obviously, Don will have to deal with Congress a lot,” the Federation of American Hospitals' Kahn says. The confirmation process aside, the CMS administrator—even in slow times—is frequently called upon to testify before congressional committees. But charged with the implementation of the most sweeping changes to the healthcare system since the advent of Medicare in the 1960s, Berwick's visits to the Hill could number in the dozens. Any lingering bad feelings between Congress and the Obama administration could hurt an agenda that's heavy on provider-side reforms. “I think the Republican side will have to work through that with him,” Kahn says, adding, “At the end of the day, they're going to need him, too.”
Senate Republicans had started to line up their opposition to Berwick in March, when White House officials first leaked the name of Berwick, 63, a physician who trained as a pediatrician. Much of their opposition has been pinned to statements Berwick has made over the past decade that apparently show a penchant for rationed, government-backed care as a means to drive down costs.
In his writings and speeches, Berwick had given them plenty of ammunition. “The decision is not whether or not we will ration care—the decision is whether we will ration with our eyes open,” Berwick said in a 2009 interview.
GOP lawmakers all along had warned that legislative provisions in the mammoth reform package could lead to the rationing of medical treatments, and Berwick's writings and speeches were used to stoke those concerns.
Indeed, not even a week after the White House made his nomination official, Republican leaders coalesced behind a plan to press Berwick on those and other comments he made in praise of the National Health Service in Britain. “Obviously, there are going to be some real problems with that nomination,” Sen. Jon Kyl of Arizona said at the time.
Further, Republican senators created a loose-knit campaign, known as “Second Opinion,” as an effort to highlight problems with the new reform package. Often, Barrasso, Kyl and others would take to the Senate floor to tie Berwick to statements he had made lauding the NHS.
The debates became so heated that Sen. Max Baucus (D-Mont.), who chairs the Finance Committee and would have led Berwick's confirmation process, charged Barrasso with making libelous statements about the nominee. “If the senator were not protected by the speech and debate clause, he would be subject to a suit for slander,” Baucus said on the Senate floor in June.
But even Baucus says he harbored mixed feelings about Obama's use of the recess appointment to elevate Berwick. “I'm troubled that, rather than going through the standard nomination process, Dr. Berwick was recess appointed,” he says in a written statement. “Senate confirmation of presidential appointees is an essential process prescribed by the Constitution that serves as a check on executive power.”
Baucus continued, however, to say that “despite the recess appointment,” he looks forward to working with the CMS on implementing the thousands of changes marked in the new reform law.
—with Melanie Evans and Jennifer Lubell