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Clock is ticking for Bush on CMS chief

The White House has about 10 days to nominate someone to be administrator of the Centers for Medicare and Medicaid Services (CMS) or the agency will lose its current chief official. Unless it doesn’t.

Under the Federal Vacancies Reform Act of 1998, an individual can serve as the acting head of an agency for 210 days unless the Senate is considering a presidential nomination for the position.

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Leslie Norwalk has served as acting CMS administrator since Mark McClellan vacated the position Oct. 15. The law says she can continue in that position for those 210 days — which expire in less than two weeks — but the White House says it could keep her in place longer.

Rumors of a CMS nomination have been percolating for months, with Norwalk among the names circulated on the Hill and K Street as a candidate. Other possible nominees from within CMS or the Department of Health and Human Services (HHS) have been bandied about as well.

But President Bush has yet to name someone as his choice to manage the agency and its nearly $600 billion budget, used to deliver health coverage to 44 million elderly and disabled people under Medicare and 55 million poor people under Medicaid.

 “We don’t ever speculate on personnel,” White House spokeswoman Emily Lawrimore said. Emphasizing that the White House would not disclose its plans for CMS, she said that the president would have the option of extending Norwalk’s tenure as acting administrator without nominating her or anyone else.

Congress has sought to compel presidents to submit nominations so the Senate can carry out its rights and responsibilities under the “advice and consent” clause of the Constitution through several laws. The first such law was enacted during the administration of President Andrew Johnson, according to New York University professor Paul Light, an expert on presidential appointments and a former Senate staffer.

“The intent of the statute[s] … was to prevent the executive branch from filling vacancies with individuals who were not going to be nominated” because a president believed they would not be confirmed, Light said.

But the laws leave presidents with considerable wiggle room. Even determining the true expiration of the 210-day period is complicated. In Norwalk’s case, the 210th day falls on May 13, which is a Sunday. The law grants two extra days when the Senate is not in session, which would give Norwalk until May 15.

A Senate Finance Committee Republican aide said the Bush administration has not advised the office of ranking member Chuck GrassleyCharles (Chuck) Ernest GrassleyDems angered by GOP plan to hold judicial hearings in October American Bar Association dropping Kavanaugh review Clinton's security clearance withdrawn at her request MORE (R-Iowa) about any potential candidates, and that the office had not asked about any. The aide added that the current situation is “unfortunate” and that the president should make a nomination.

Norwalk was deputy administrator when McClellan stepped down, so she assumed the responsibilities of acting administrator by virtue of her position as the second-ranking official at CMS, HHS spokeswoman Christina Pearson said.

The president could have designated Norwalk or someone else as acting administrator but did not. This is why, according to the White House, she could stay on.

If the president were to designate Norwalk as the acting head of the agency now, she would get another 210 days, according to the White House. If that designation were made on May 13, it would allow Norwalk to occupy the office without Senate confirmation until Dec. 9, or almost 14 months after the last Senate-confirmed administrator left office.

The White House said Norwalk also could remain acting administrator if the president were to nominate her or another individual. After a nomination, Norwalk could remain in office for the duration of the time the Senate considered the nomination.

 “I think that [the law] was really designed to foreclose those kinds of shenanigans,” said Light, who helped draft a 1988 law on executive branch vacancies while a professional staff member of the Senate Governmental Affairs Committee.

Yet, he added, there’s little Congress can do if the White House does not address a vacancy. “There’s really no enforcement mechanism,” Light said, short of an individual or group filing lawsuits that challenge the official actions of someone holding an acting position past the time laid out in statute.

The last time a CMS administrator left office, the White House acted more quickly. McClellan’s predecessor, Tom Scully, stepped down as CMS administrator in December 2003 and Dennis Smith, who is the director of CMS’s Center for Medicaid and State Operations, was designated acting administrator.

The president nominated McClellan to be administrator in February 2004 and the Senate confirmed him the following month.

When Scully left, Norwalk was acting deputy administrator but was not chosen as interim head of the agency. When making the announcement, then-HHS Secretary Tommy Thompson issued an unusual press release emphasizing that Norwalk would remain deputy.