Can Berwick Be Saved? Here’s One Possible Scenario

We’ve all had the experience of hearing someone we know well say or write something totally out of character, and wondering, “what was that about?”

Don Berwick said such a thing last week, all-but-contradicting President Obama’s support for a strengthened, independent Medicare payment board. After a little head scratching, I began to wonder whether this might have been a harbinger of some good news regarding his tenure as Medicare czar.

This is one complicated political dance, so let me explain.

Berwick, as you know, received a recess appointment to lead the Centers for Medicare & Medicaid Services (CMS) last July, after his nomination had become hopelessly entangled in a web of partisan politics. I applauded President Obama for the appointment, and predicted that Don would do a great job in this crucial role, perhaps even wooing some of the Republican legislators who hijacked his nomination process to re-litigate the fracas over healthcare reform.

Then, in early March, Senate Republicans made it clear that they would not support Berwick’s continued tenure when his recess appointment expires later this year. The reasons include lingering concerns about Berwick’s politics (particularly his embrace of the British system of universal healthcare coverage), continued anger over the Affordable Care Act (ACA), and some peevishness over the recess appointment itself. In this space last month, I promoted a letter-writing campaign to try to save the Berwick appointment, though insiders told me it was “hopeless.”

Some interesting things have happened since then. First, Berwick has been on a roll, announcing a number of key initiatives like his Partnership for Patients (a billion dollar patient safety strategy) and the rules around Accountable Care Organizations – ambitious, exciting programs on which Berwick’s fingerprints are obvious. The question of whether CMS would lose crucial momentum if it changed leaders in mid-stream has clearly been called.

Secondly, Rep. Paul Ryan (R-WI) laid out a controversial program to convert Medicare from a defined benefit program into one in which the elderly receive vouchers to buy insurance on the private market. While I admire Ryan’s chutzpah (particularly since the plan strikes me as political suicide. See also: Dan Rostenkowski), I have serious concerns about the program’s wisdom. But more germane to the present argument, I wonder whether Ryan’s colleagues, now fearing a Rosty-like backlash complete with marauding octogenarians bearing wooden signs, have become even less excited about a bruising battle in which they are (rightly) tarred for removing the popular, universally respected (at least among healthcare experts) Dr. Berwick from his post.

With this as context, I began to try to conjure up a scenario in which the Republicans could allow the Berwick appointment to proceed while getting something in exchange. But what could the Dems give in return? It couldn’t be universal coverage, which is far too central to Democratic core values. Most of the quality and safety provisions in the ACA aren’t very controversial. Preexisting condition coverage and kids’ remaining on their parents’ policies: these appear to be the only two parts of the bill that people both understand and like. Comparative effectiveness research: already neutered by the bizarre requirement that CER results cannot be used in coverage decisions. What was left?

Oh yes, MedPAC on Steroids.

One piece of the ACA that received relatively little attention (distracted as we were by the town hall brawls over the Public Option and Palin’s “death panels”) was a plan to create a new version of the Medicare Payment Advisory Commission (MedPAC), the body that advises Congress on Medicare coverage rates and physician payments. While MedPAC is well run (truth-in-advertising: the chair, Glenn Hackbarth, is a friend and one of the smartest people I’ve met in healthcare, and I testified before the Commission a few months ago), everyone knows that it cannot enforce tough choices – denying coverage for expensive, low-yield procedures, for example, or shifting reimbursements from overpaid specialists to underpaid primary care docs – because the process is too politicized, special interests are everywhere, and Congress can overturn any of its decisions. Early in the debate over healthcare reform, the idea of a “MedPAC on Steroids” gained traction, a new oversight body with the power to suggest major changes to Medicare and force Congress into a single up-or-down vote on them (aka, the Base Closure gambit).

As Obama described in a 2009 interview, such a group could “bend the cost curve” over the long haul by

continually [presenting] new ideas to change incentives, change the delivery system, understanding that because this is such a complex system we’re not always going to get it exactly right the first time, and that there have to be a series of modifications over the course of a series of years, and we have to take that out of politics and make sure that an independent board of medical experts and health economists are providing packages that are continually improving the system.

Surprisingly, MedPAC on Steroids (whose formal name in is the “Independent Payment Advisory Board,” or IPAB) made it into the final legislation, and has continued to annoy Congressional Republicans ever since. The Wall Street Journal’s editorial board recently opined:

Mr. Obama… is relying on the so far unidentified technocratic reforms of 15 so far unidentified geniuses… Under last year’s law, the board submits its recommendations to Congress on an up-or-down vote and they go into effect automatically unless Congress adopts an equivalent plan. Its decisions aren’t subject to judicial or administrative review. Now Mr. Obama wants to give the board the additional power of automatic sequester to enforce its dictates, meaning that it would have the legal authority to prevent Congress from appropriating tax dollars. In other words, Congress would be stripped of any real legislative role in favor of an unaccountable body of experts.

While Republican congressional opposition is predictable, even some Democrats are balking at relinquishing so much power. Representative Allyson Schwartz, a Pennsylvania Democrat, said:

It’s our constitutional duty, as members of Congress, to take responsibility for Medicare and not turn decisions over to a board. Abdicating this responsibility, whether to insurance companies or to an unelected commission, undermines our ability to represent our constituents, including seniors and the disabled.

Soon after the Ryan voucher proposal was made public, President Obama defended his own plans for Medicare and criticized Ryan’s. Last week, in a speech at George Washington University, he appeared to double down on the IPAB, endorsing a mechanism that would allow the Board to trigger payment cuts if Medicare’s inflation rate remains significantly higher than that of the Gross Domestic Product.

The day after Obama’s speech, Berwick addressed a group of healthcare journalists. Ever the good lieutenant, one would have expected that Berwick would have saluted his president’s proposal to further juice up the IPAB. But that’s not what happened. After deeming Obama’s proposal “a very wise default system – a Plan B,” he added:

We don’t have to get to that point… There are two ways to save money. One is to cut and the other is to improve…. The aim is to make the best the norm.

Did I hear that right? The head of CMS, a day after the president announced his Medicare plans, says that a key provision wouldn’t be necessary? Don Berwick is a very smart, careful man, and this couldn’t have been unplanned.

Nor could it be unplanned that yesterday, Berwick took the role of the Administration’s Ryan Plan attack dog. A pediatrician by training, Berwick told Politico:

When I started taking care of kids at the beginning of my career, every leukemic child died. … Now they all live. That costs some money… We shouldn’t give that up as a country. We need to make care better by adding the stuff that really does help.

With that as gentle, Marcus Welby-like prelude, the man who has been caricatured as “rationer-in-chief” by Republicans (finally) removed his rhetorical gloves:

It is paradoxical really that with all this talk of rationing, the proposal we hear about how to fix American health care is to take it away from people. That’s from the very people who are crying rationing. If you look at the proposed withdrawals of support to Medicare beneficiaries and Medicaid, it’s withholding care from the people who need the care. You tell me what that is?

What exactly is going on here? In an email exchange with me, hospitalist-blogger Brad Flansbaum, an astute health policy observer, suggested an alternative hypothesis: that Berwick may be a political zombie, a “dead man walking” – and his tough talk and disagreement with the president might be the Inside-the-Beltway equivalent to the terminally ill man being sent on a suicide mission.

Or here’s another idea (this one wasn’t Brad’s): maybe Berwick, upset with the White House for not signaling its willingness to go to the mat on his re-nomination battle, has left the reservation. Could DB be going rogue?

Neither of these explanations feels right to me. If the Berwick nomination was truly dead, I doubt that the Administration would have chosen him to lead the attack on the Ryan plan. As for going rogue, Berwick is among the smartest, most measured people I know. He is capable of Shock and Awe rhetoric, but it’s always in the service of a clearly considered goal.

No, this must all be planned, which leads me to believe that perhaps – just perhaps – the Democrats have negotiated a deal: Let us keep Berwick and we’ll give a bit on the IPAB.

You might be thinking that if there really was a Berwick-for-IPAB trade in the works, then Berwick would lay low for a while and not do something to rile up the Right, like taking the lead on bashing the Ryan plan. And you’d be correct… if the Republicans were foursquare behind Ryan’s voucher idea.

But just yesterday, House speaker John Boehner began backpedalling from Ryan’s proposal faster than Willie Mays going after a fly ball to deep center field. (Translation hint: when you hear a Speaker of the House say I’m “not wedded” to a plan, that is Congress-speak for “Make this thing go away before it causes me to have to hand my gavel back to that Pelosi woman.”) Even “The Donald” (yes, your Republican front-runner) veered off his Birther Talking Point long enough to diss the Ryan plan last week. Mark my words: this is a plan that will not be on the Republican agenda come 2012.

So where does this political shaggy dog story leave us? Here are my predictions:

First, both parties will allow the Ryan plan to die a slow, excruciating death over the next few weeks. Think about the Bush plan to privatize Social Security and you’ll have a roadmap for where this train wreck is going.

Second, in a month or two, HHS Secretary Sebelius, or perhaps even Berwick, will announce some softening of the Administration’s support for the IPAB, coupled with some promising but relatively uncontroversial alternative strategy for bending the cost curve.

Finally, Don Berwick’s nomination will magically gain the support it needs to (barely) survive the Senate.

Wishful thinking? Perhaps. Plausible? Definitely. Would I bet on it? It’s probably a better bet than 90 percent of my poker hands in my Friday night game, so, sure.

Would this be a good trade? All things considered, I’d vote yes, partly because the IPAB would be in such a political straightjacket that it would struggle to achieve its aims (the ACA expressly forbids it from “limiting services”). At this fragile moment in the life of healthcare reform, I believe strong leadership at CMS is more important than a structural change whose final shape remains relatively amorphous.

And, if the last few years have taught us anything, it is that CMS already has lots of tools to promote value; it just doesn’t use them effectively. Changing this is a question of leadership, the kind of leadership that Don Berwick offers.

Robert Wachter, MD, is widely regarded as a leading figure in the modern patient safety movement. Together with Dr. Lee Goldman, he coined the term “hospitalist” in an influential 1996 essay in The New England Journal of Medicine. His posts appear semi-regularly on THCB and on his own blog, Wachter’s World.

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14 replies »

  1. Wouldn’t it be wonderful if we could all work in a ‘think tank’ and not run our practices and not care for patients with real problems. (sounds like my good old college days !)

  2. ” It depends who that “someone else” is ”

    I could spare a year or two to fix things for the good of the country

  3. if he is half as altruistic as everyone keeps claiming he is he should have no problem. Plus his strength and interest has always been the quality, if he could drop all the responsibility of running CMS and just focus on that you would think he would jump at the chance.

    If I could get rid of all my managment responsibility and just sell and fight with hospitals I would take it in a heartbeat.

  4. Don Berwick’s reputation on health care quality improvement and patient safety are impeccable. I don’t see eye-to-eye politically with him, but was initially excited about his appointment. I wonder now if this is a case of the Peter Principle, or perhaps just a case of being in the wrong seat on the bus. I like Nate’s idea above about being in charge of quality improvement, and therefore putting him back in the right seat. However, it is hard to go backwards isn’t it!

  5. Don Berwick commited a political faux in London, and accidentally impaled himself on his sword. He was anxious to please his audience by applauding their system, and dissing ours. Not a good thing, especially in the midst of serious reservation about our new “law”. His temporary appointment may have been the plan all along. Obama surely was testing the waters and allowed congress to ‘pass’ on a full committee and congressional hearings. Berwick supported Obama care fully, misjudging the character of our President. He was the sacrificial lamb. Surely he did not deserve what he is faced and what has ocurred to him. While I disagree strongly with his opinions, I respect his studies and observations. His viewpoint is highly biased, based upon his lofty status. It mirrors and parallels the attitude of many of medicines “elected” representatives in the AMA, and social circles of the elite in Medicine. The Head of CMS is an administrative position, not a policy making position.
    Hopefully we will all learn from this experience. No one should have all that much faith in any upper echelon personality. They all come and go, and we healthcare givers remain in the trenches caring for our patients day after day. We work and they ‘play’ with the system.

  6. I don’t know. It depends who that “someone else” is and it depends on how much authority would be given to Dr. Berwick, but if he accepts such role, I would trust his decision to be a good one.

  7. Would you be happy if someone else was appointed to head CMS and they named Berwick to head a department focused on quality improvement?

  8. It is the lack of Senate Democratic support for Berwick, not Republican opposition, that has doomed Berwick’s nomination. Baucus was not prepared to go to the mat for this nominee, or he would have been confirmed last year, when the Republicans were virtually irrelevant to the process. Baucus also doomed the appointment of his former colleague, Tom Daschle, as HHS Secretary. There’s a lot of serious passive aggression going on here.

  9. Bob is playing with Medicare money, which is fake money, so he is not breaking any laws….

    To the point, if Bob is right and we trade IPAB for Dr. Berwick, I will consider it to be a miracle of the best possible kind, since IPAB is an anti-democratic institution, put forward out of cowardice and dereliction of duty, and it is completely redundant if Dr. Berwick is allowed to lead CMS.
    So, yes, please, make it so…..

  10. That’s a trick question, Bob doesn’t live in Vegas or AC so it would be illegal to play poker for money so he left with the same amount he went with.

  11. Oh Nate, you miss the real question which is, when Bob exits his Friday night Poker game, does he leave with more money than he started or not?

  12. “Republican legislators who hijacked his nomination process to re-litigate the fracas over healthcare reform.”

    Never miss an opportunbity to plant this lie in hopes that it grows. Lets check this for the 1000 time.

    Did Republican’s vote against him


    Did Republican’s fillibuster his vote


    Did Republican’s block other legislation until he was replaced


    How exactly did Republican’s hijack his nomination, ah thats right they took over the body of Harry Reid and never scheduled it.

    When will you ever stop tossing this lie?