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CMS Seen Staying Steady With or Without Tavenner Confirmation

By John Reichard, CQ HealthBeat Editor

May 25, 2012 -- If past is prologue, the disclosure by Senate Finance Committee chairman Max Baucus that he doesn't see enough votes to confirm Marilyn Tavenner as administrator of the Centers for Medicare and Medicaid Services (CMS) isn't likely to shake her from her steady performance in cranking out rules, grants, and guidance documents to implement the health care law.

Tavenner has been consistent ever since joining the agency in early 2010 as principal deputy administrator. The hallmarks of her successful career as a corporate executive prior to joining the agency, setting goals and disciplining a large enterprise to consistently meet them, have also marked her tenure at CMS.

It's been an extended period in which the agency's thousands of staffers either haven't known who would hold the top spot at the agency or knew that the person at the helm, Donald M. Berwick, would be a short-timer because of intense criticism from Republicans on Capitol Hill.

But with Tavenner handling the operations side of CMS both before and after passage of the health care law (PL 111-148, PL 111-152), staffers have been implementing an enormously complex measure despite complaints about delays in getting exchange guidance out to the states and a lack of rulemaking in defining minimum benefits.

Tavenner may well serve out her tenure running the agency without ever shaking the "acting" status she holds as administrator of the agency. But observers say it's clear to the CMS staff that she is the boss.

In telling Politico that he doesn't see 60 votes to confirm Tavenner, Baucus didn't say whether she'd be able to get them after the election if President Obama wins reelection. But Baucus said he didn't see the lack of sufficient votes as a reflection on her qualifications.

"From an operations perspective, she is running the place beautifully," said Dan Mendelson, who oversaw Medicare, Medicaid and other federal programs as health budget chief during the Clinton administration. "Regulations are getting done without drama, consultation is happening with the private sector and the staff see her as the person in charge. It's such a political season, it's hard to imagine that things would be better for the agency on the hill if she were confirmed in the short run. The fact is that the members have no interest in coming together on significant matters of health care interest until after the election. So, while it's deplorable that a straight shooting centrist can't get confirmed, I don't see it holding her back."

Gail Wilensky, who ran Medicare and Medicaid during the George Bush administration, gives the Obama administration very low marks for failing to move more quickly on nominating a CMS administrator within a few months of President Obama taking office. Even the controversial Berwick would have been confirmed had he been nominated in the spring of 2009, Wilensky said. She added that it's bad for an agency to be run for an extended period without a confirmed administrator—and CMS hasn't had one since 2006.

The problem is that without a permanent administrator, an agency is not always as aggressive as it should be, Wilensky explained. But even so, she said Tavenner has been a good administrator and it was unrealistic to think a nominee would be confirmed in the last year of an administration. And Wilensky doesn't expect Tavenner to leave because of her doubtful confirmation prospects. Running CMS is still "a very special opportunity," Wilensky said.

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