Thursday, December 1, 2011

Ten Questions for Marilyn Tavenner

Now that the Obama Administration has finally decided to jettison the ill-fated nomination of Donald Berwick, attention has turned toward Marilyn Tavenner, the current Deputy Administrator of CMS, whom the President nominated for the agency’s top job.  Remember that, if confirmed, Tavenner will be charged with overseeing not just the Medicare and Medicaid programs, but the new insurance “super-regulator” being built within CMS – a center that will implement creation of state Exchanges and the insurance “reforms” included in Obamacare.  In other words, the CMS Administrator affects not just the health care of Medicare and Medicaid beneficiaries, but the insurance and care provided to all Americans.

The confirmation process will doubtless cover many of the provisions of Obamacare, how Tavenner intends to implement them, and what CMS under her leadership will do to contain skyrocketing entitlement spending.  To give but ten (plus a bonus 11th!) examples, some of the issues that may arise include:

Medicaid Mandates:  At a time when states face budget deficits totaling a collective $175 billion, Obamacare is imposing new unfunded mandates of at least $118 billion.  Governors have made multiple requests for flexibility from such mandates – the earliest of which came on January 7 this year.  On February 3, Secretary Sebelius wrote to them saying she was “continu[ing] to review what authority, if any, I have to waive the maintenance of effort” requirements under the law.  It’s been more than ten months since the governors sent their original letter – aren’t they entitled to a straight answer as to whether or not the Administration has the authority to waive the Obamacare mandates, as opposed to whether the Administration is ignoring the requests for ostensibly political reasons?

Medicaid Lawsuits:  On the first day of the Supreme Court’s term in October, the nine justices heard a consolidated set of cases from California regarding Medicaid state payment levels, centering around whether Medicaid providers and beneficiaries have a private right of action (i.e., the right to sue) against state officials regarding reimbursement rates and beneficiary access.  The Administration filed a brief supporting the states’ position, but Congressional liberals have sided with the trial bar in favoring the right to sue.  As the former head of Virginia’s Department of Health and Human Services, what does Tavenner think would happen if state Medicaid programs suddenly faced myriad lawsuits from members of the trial bar over reimbursement levels?

Medicare Reform:  In July, the President’s Chief of Staff said that Medicare “will run out of money in five years if we don’t do something.”  Yet the President’s most recent deficit proposal would delay any changes to the Medicare benefit, including additional means-testing, until 2017 – more than five years from now, and well after President Obama leaves office.  What’s the point of delaying changes to the Medicare benefit until after the program could be broke – how does this dithering help seniors, as opposed to the President’s political prospects?  Given his eagerness to impose a trillion-dollar tax hike within mere months, why is the President so afraid of raising Medicare premiums on millionaires and billionaires until after he leaves office?

Premium Increases:  Candidate Obama repeatedly promised that he would cut premium costs by an average of $2,500 per family, and do so in his first term.  Yet the Kaiser Family Foundation has reported that premiums for employer-sponsored insurance have gone up by more than $2,200 since Obama was elected in 2008.  Why has Obamacare failed to live up to candidate Obama’s promises – and will the next CMS Administrator promulgate additional regulations that violate candidate Obama’s clear pledge to lower premiums by $2,500 per family?

Federal Exchanges:  How can the Administration lawfully implement a federal Exchange, seeing as how Obamacare provides no funding for a Washington-run Exchange, and the statute includes no provision under which individuals in federally-run Exchanges can receive insurance subsidies?

Employers Dumping Coverage:  Speaker Pelosi recently spoke favorably about Obamacare as a way “for businesses to be emancipated from health care costs because they have a way out or whatever works for them.”  Her comments echo those of a senior HHS official, who earlier this year said if “the Exchanges work pretty well, then the employer can say ‘This is a great thing.  I can now dump my people into the Exchange and it would be good for them, good for me.’”  Is this the Administration’s official position – that employers being “emancipated” and “dumping” their workers into government-run Exchanges is a good thing?

IPAB and Rationing:  Secretary Sebelius has claimed that the IPAB board of bureaucrats created by Obamacare “is expressly prohibited from making recommendations that ration care” in its rulings.  Where exactly in Obamacare – or any other federal law – is the term “rationing” defined?  For instance, where in the statute is there a prohibition on IPAB making recommendations that could reduce access to breast cancer treatments – say, mammograms?  What about diabetes treatment and prostate cancer screenings – are there any provisions in the law that explicitly state IPAB cannot reduce access to those treatments?

Bureaucrats Interfering with Doctor-Patient Relationship:  In October, the US Preventive Services Task Force released its draft recommendations regarding prostate cancer screening, and the report prompted reactions from across the health policy community.  The New York Times reported that insurers have already begun re-evaluating whether or not to cover screening tests in light of the draft recommendations.  As a trained medical professional, does Tavenner agree with the Task Force’s recommendations?  And is CMS concerned that the rulings of a government-backed panel will lead insurance companies to stop covering certain treatments, preventing patients from determining the best options for them in consultation with their physician?

Politicized and Pre-judged Regulations:  The Administration this summer released a regulation regarding mandatory coverage of contraceptive services.  But back in February,  the New York Times reported that the regulation’s contents had already been determined:  “Administration officials said they expected the list [of required benefits] to include contraception and family planning….But the officials said they preferred to have the panel of independent experts make the initial recommendations so the public would see them as based on science, not politics.”  Is it appropriate for Administration officials to be publicly pre-judging the outcome of “independent” reviews and rulemaking proceedings?  What will CMS do to investigate whether the Administrative Procedures Act or other similar procedural guidelines were violated during this rulemaking?

Waivers and Favors:  In just over one year, the Administration has granted myriad waivers and exemptions to Obamacare:  The Administration has issued more than 1,500 waivers – most of which cover members of union plans – five Democrat Senators recently requested their own waiver for certain agricultural populations and products, and AARP’s lucrative Medigap insurance has also been exempted from the law’s new mandates.  If Obamacare is so good, why does the Administration keep having to exempt people from it?

Medicare Advantage:  In July the Associated Press reported on what amounts to a round of temporary Obamacare waivers granted by the Administration – this one to seniors in Medicare Advantage.  The “reprieve” granted by the Administration came in the form of a multi-billion dollar demonstration project – FAR larger and broader than any prior demonstration program – to pay “bonuses” that “could head off service cuts that would have been a [political] headache for Obama and Democrats in next year’s elections.”  Even a former Democrat staffer who worked in the Clinton Administration admitted the political tenor of the program: “It’s fair to say that [Medicare] could not tolerate dislocation, given the political climate.”  Do you agree with this Democrat’s view that this demonstration program amounted to a political stunt?  Is it appropriate that at a time of trillion dollar deficits, a new multi-billion dollar spending program – one that even Democrats admit has clear political overtones – should be implemented without so much as a vote in Congress?