“The president nominated Don Berwick because he's far and away the best person for the job, and he's already doing stellar work at CMS, saving taxpayer dollars by cracking down on fraud, and implementing delivery system reforms that will save billions in excess costs and save millions of lives,” said White House spokesman Reid Cherlin. “We won't be withdrawing the nomination.”
And the administration retained the support, as of last week, of several major healthcare organizations that have vocally backed Berwick since he was first appointed, including the American Hospital Association and American Academy of Family Physicians.
Berwick also appeared confident in the president's support when he spoke last week at a Washington meeting of America's Health Insurance Plans. When asked about the stiffening Republican opposition, he told reporters he was thankful for the White House's continued support and remained focused on the duties of his acting administrator role.
Those duties include leading the largest combined group of healthcare programs in the nation and implementing many of the complex provisions of the Patient Protection and Affordable Care Act—difficult tasks for any nominee, much less an unpopular one. Baucus said he doubted Berwick's lack of confirmation would undercut his authority in his high-profile position, but critics warned that is possible.
“He is less likely to be taken seriously on the Hill by Republicans, and that could hurt him when he needs to go up there and ask for something,” said Michael Franc, vice president of government studies at the Heritage Foundation.
However, for the Obama administration, Berwick's high standing among many healthcare policy experts and insight stemming from his many years of advocacy for safety and quality measures trumps the political controversy he engenders. And the continued reliance on Berwick raises the possibility of further recess appointments to keep him around beyond the end of the year when his temporary appointment expires.
Such a move could open a new round of controversies. For example, one senior Republican said in an interview last week that he believes such successive recess appointments to head the CMS would violate federal law. “You get one crack at that,” Sen. Orrin Hatch (R-Utah) said.
One problem that could trip up a second recess appointment is the federal ban on pay for anyone who serves such terms successively, noted by a March 2010 Congressional Research Service report. Although a lack of pay could cause a financial hardship for Berwick, the bigger challenge might be a separate federal law that bars anyone from heading a federal department or agency on a voluntary or unpaid basis.
“I hadn't considered that,” Baucus said, asked about the possible legal obstacles to successive appointments.
Although media reports have recently speculated about possible alternative candidates for the position, an administration spokesman did not respond to questions about replacements for Berwick.
Democrats and Berwick's supporters in the healthcare industry have complained that it is pointless to consider choosing someone else to lead the CMS in order to soothe the GOP's concerns because, they say, opposition to Berwick is purely a proxy fight over the healthcare law. Baucus, however, said his conversations with Republicans indicate that other potential nominees would not draw the same degree of Republican scorn.
And Hatch said, displaying the tone of that scorn, that there are “top-notch people who would know how to run CMS without turning it into a rationing agency.”