CMS Confirmation May Bring Back Health Care Fight

President Barack Obama’s nomination of Andy Slavitt to be administrator of the Centers for Medicare and Medicaid Services — he’s acting administrator now — leaves Senate Republicans weighing how to orchestrate the confirmation process in their favor.

The Senate could use a confirmation hearing to rehash the stumbles of the 2010 health care overhaul (PL 111-148, PL 111-152), particularly the launch of the federal exchange website. They could cite Slavitt’s past involvement with a company working on the federal exchange. Both would deflect attention from Obama’s victory in June, when the Supreme Court said the law’s subsidies should be available in every state regardless of who runs the health insurance exchange.

But Republicans may dislike giving Democrats a stage to pose easy questions and allow Slavitt to promote the law, including his role in improving the federal exchange. That’s especially the case because Republicans can do little to change the law for the remaining 17 months of Obama’s term. They may prefer to do nothing and leave Slavitt as acting administrator.

At issue for Senate Republicans is who controls the narrative of the health care law in the coming months.

“Why do they want to embarrass themselves by getting all hot and steamy and not doing anything for a year and a half?” asked Joseph Antos, a health care expert at the conservative American Enterprise Institute. He predicted Republicans wouldn’t hold a confirmation hearing.

But American Health Policy Institute President Tevi D. Troy said it’s “very hard to sustain not having hearings for a nominee for a major position” and noted Republicans might enjoy having the conversation about some of the health law’s failings and challenges.

The Senate Finance Committee has jurisdiction over the nomination. Chairman Orrin G. Hatch, R-Utah, hasn’t shown his hand, but on July 16 he indicated the CMS’ willingness to help with a Government Accountability Office investigation of the health law’s federal insurance exchange could factor into Slavitt’s confirmation process. Hatch said the CMS was “less than cooperative” with the probe — which is examining how the site verifies whether applicants qualify for insurance subsidies — and said he plans to ask Slavitt “why CMS has been interfering with our oversight efforts.”

Slavitt worked for federal contractor Optum when it came in to fix healthcare.gov. But he was also with Optum when its subsidiary, Quality Software Services Inc., built the data hub for the federal exchange. The hub was viewed as one of the few pieces of the IT apparatus that worked, but the company created the registration tool that caused bottlenecks after the troubled October 2013 launch. QSSI received a larger role during the cleanup effort later that month.

Slavitt could be painted as being both part of the problem and part of the solution.

The question will be which narrative sticks, according to Robert J. Blendon, a professor of health policy and political analysis at Harvard University. Did Slavitt save healthcare.gov when it was a disaster or did he work for a company that contributed to the problem?

“If there’s any question that he didn’t play a hero’s role in setting that up, that’s an easily publicly understandable issue,” Blendon said.

Republicans could also use a confirmation hearing to air concerns about conflicts of interest between the CMS and Optum, a subsidiary of UnitedHealth Group.

Hatch and Senate Judiciary Chairman Charles E. Grassley of Iowa highlighted those concerns in a letter to the Health and Human Services Department on March 31, after the departure of CMS Administrator Marilyn Tavenner put Slavitt in the acting administrator’s role.

“The multiple relationships between Mr. Slavitt and United subsidiaries raise real concerns about how, and to what extent, CMS has prevented conflicts of interest given the fact CMS makes decisions that impact United and its subsidiaries every day,” the Republicans wrote. “While Mr. Slavitt may have recused himself from such decisions in the past, it may be difficult or impossible for him to do so in his current position at CMS.”

Hatch could hold a hearing only to see the confirmation fizzle out later. If Slavitt’s nomination never crosses the finish line, it wouldn’t be the first time.

Tavenner was the first Senate-approved administrator of the CMS since Mark McClellan occupied the post from 2004 to 2006. Obama administration nominees haven’t been moving through the Senate particularly quickly since Republicans took control in the 114th Congress.

Senate Majority Leader Mitch McConnell, R-Ky., said Slavitt’s nomination “will receive thorough consideration” in a statement released after the July 9 announcement.

Conservatives are signaling their priority is to use the expedited budget reconciliation process to get a health law repeal bill to Obama’s desk rather than pursue a nomination fight.

If one develops, Heritage Action for America spokesman Dan Holler said it “does not alleviate them” from the reconciliation obligation even as he said Slavitt’s nomination “raises plenty of red flags.”

That position, along with the fast- approaching 2016 elections, could take pressure off Republicans to use the confirmation to take a stand against the health law.

Ross Baker, a political science professor at Rutgers University, said the GOP hope for repeal in the 115th Congress is so strong the party will not block Slavitt from becoming the permanent head of the agency.

It’s approving him to be “the skipper of a doomed vessel,” he said in an email.