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Berwick Leaves CMS; Tavenner Nominated

Written by Kevin Kappel and Jared Alves

The Centers for Medicare & Medicaid Services will be due for new leadership as Don Berwick, its current chief executive, steps down today. If all goes according to the Obama Administration’s plan, Berwick will be replaced by Marilyn Tavenner, the agency’s current principal deputy administrator.  Already Tavenner’s nomination appears on the path to confirmation – the first since the Senate confirmed Mark McClellan during George W. Bush’s second term – although most key Senators have kept quiet on how they intend to proceed.

Nominated in April 2010, Berwick was appointed by President Obama during Congressional recess the following July. The controversial appointment avoided Senate confirmation, but as a result was set to expire at the end of this year. From the start, Republicans mounted a coordinated effort to denounce Berwick as endorsing both healthcare rationing and the British single-payer system.  In addition, earlier this year, 42 of those Senators sent a letter to President Obama pledging to oppose his nomination if it ever came up for a vote – enough to officially sustain a filibuster and block the confirmation.  With weeks left in his temporary appointment, Berwick announced on November 23rdthat he would step down today.  Berwick made notable progress in writing the rules associated with the Patient Protection and Affordable Care Act, in particular regarding the new state healthcare exchanges and Accountable Care Organizations.

If confirmed, Tavenner will continue to implement key portions of the healthcare reform law.  Her experience in the industry is extensive, with a career that includes starting as a nurse and rising through the ranks to several senior executive positions at the Hospital Corporation of America and service as the Virginia Secretary of Health and Human Resources for then Governor and current Senatorial candidate Tim Kaine (D-VA).  Unlike her predecessor, she has received backing from top Republicans including House Majority Leader Eric Cantor – with whom she worked while the Majority Leader was serving in the Virginia House of Delegates.  While stating that he “expects great things” from Tavenner, the Majority Leader noted her work in the private sector as indicating that she will take the steps necessary to implement the reform law in a more responsible manner. While Cantor lacks a vote in the Senate, his support – coming from senior party leadership - could signal a greater willingness for Republicans to endorse her nomination.  As of now, two vocal opponents of Berwick, Senators Orrin Hatch (R-UT) and John Barrasso (R-WY) have noted that her nomination deserves careful review.  Given the contentious nature of the health reform law, even such innocuous statements could be perceived as tentative statements of support and could indicate that her nomination will be successful.


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Author

M. Daria Niewenhous is a Mintz Member with a well-established health care practice. National and local providers rely on Daria’s experience to navigate capital projects, mergers & acquisitions, integration, and other strategic initiatives; adverse events; and licensing, contracting, patient care/risk management, and other complex legal matters.