By Tommy Thompson
February 9, 2018
IDEAS

Thompson served as U.S. Secretary of Health and Human Services from 2001–2005 and as the 42nd Governor of Wisconsin from 1987–2001.

Understandably, the Trump Administration wants to use every tool at its disposal to improve the lives of Americans. However, as a close observer of the Administration’s health care policy and a former Secretary of the Health and Human Services Department (HHS), I’m increasingly concerned that its plans for the Center for Medicare and Medicaid Innovation (CMMI), an office created by Obamacare, lack necessary guardrails to ensure against future abuse by the Executive Branch.

At issue is the CMMI’s far-reaching power to essentially remake Medicare in its own image without Congress lifting a finger. Under the law, the office can unilaterally impose policy changes to the entire Medicare program if it deems a study it conducted was a success.

This power is, purportedly, in service of an uncontroversial and even admirable goal: identifying through experimentation how the government can save taxpayer dollars and operate more efficiently.

For several reasons, however, Republicans have long viewed the office’s power with suspicion. Those fears hardened when CMMI came under blistering criticism from both sides of the aisle for how the center’s early work treated millions of Americans — in some cases, the majority of Medicare beneficiaries — as guinea pigs in what are supposed to be pilot studies with isolated impact.

For example, in 2016 CMMI proposed an experiment that would have impacted care for cancer patients in 75% of the U.S. The policy was never implemented because it was broadly opposed by both doctors and patients. Experts were concerned that patients could lose access to community-based care and would have less choice in terms of their treatment options. The program also lacked an adequate monitoring plan to assess if care quality was diminished.

Clearly, experimentation is a crucial part of discovering how the government can save taxpayers’ hard-earned money, and a well-designed program to study the impact of proposed reforms on isolated populations would benefit all of us. But it is absolutely crucial that HHS start by working with Congress and other stakeholders to institute guardrails on CMMI to ensure it never conducts a study on the entire country, in addition to clearly defining CMMI’s authority to stay inside the executive branch’s constitutional authority to enforce — not write — the law.

For example, HHS should explicitly limit the scope of CMMI’s tests such that it cannot thrust a policy change on a large group of people as part of a so-called “study.” Secondly, CMMI should be required to explicitly announce its studies and seek stakeholder input on how it designs its studies, just as any other federal agency seeks input before subjecting the country to its decisions. Third, Congress should be afforded opportunities to review CMMI’s decisions and must remain the ultimate authority to approve or deny policy changes to Medicare and Medicaid.

A related issue is how congressional budgetary rules are being improperly promulgated to shield CMMI from reform legislation. Under Obamacare, CMMI receives a mandatory funding allocation of $10 billion every ten years. However, the Congressional Budget Office is assuming, without evidence, that CMMI will save this amount and more, and that reforming the CMMI would cost money. This dynamic ties Congress’ hands in its rightful policymaking role by putting it in the untenable position of identifying mandatory offsets each time it wants to make changes to a CMMI demonstration program. Congress must also find an offset if it wants to direct CMMI demonstrations, including ones that exceed CMMI’s statutory authority or pose risks to Medicare beneficiaries.

CMMI must at the same time be safeguarded by administrative action to ensure that elected officials in Congress can be good stewards of the Medicare program for the seniors they represent. It may be tempting to seize the CMMI’s powers, but someday, the Trump presidency will end, and the next president may not have the same policy goals. Expanding the authority of federal agencies to enact conservative policies for a short period is shortsighted — that’s just the nature of government in a free society.

Instead, the Trump Administration could pave the way for broader legislative reforms in the future if it works to establish administrative safeguards to govern CMMI and clarifying, as part of a transparent collaboration with Congress and stakeholders, its operations.

Contact us at editors@time.com.

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