Some Questions Sen. Grassley Might Ask Medicare/Medicaid Agency Nominee in Confirmation Hearings

So far Marilyn Tavenner, acting director of Centers for Medicare and Medicaid Services (CMS), has avoided a serious vetting. But today a confirmation hearing is set for the woman who has headed the $800 billion agency for the last year and a half since taking over from Donald Berwick.

This is the second time President Obama has nominated Tavenner. The first time, Finance Chairman Max Baucus stated a hearing would only end up "dominated by controversial health care politics." In 2012 another ranking member of the Finance Committee, Orrin Hatch said "any nominee to a federal agency with this much power and authority over the lives of millions of Americans must be carefully scrutinized."

In 2011 Dr. Jane Orient,  Executive Director of the Association of American Physicians  and Surgeons (AAPS)  agreed with Senator Hatch suggesting Tavenner should receive no less scrutiny than Berwick.  

The Association of American Physicians and Surgeons a group of private physicians, released a brief Wednesday, declaring that the "new CMS pick [is] no better than Berwick." Having expressed support for the Affordable Care Act and Berwick's policies, according to the statement, Tavenner is charged with carrying out many of those policies, particularly implementing the Independent Payment Advisory Board (IPAB).

Despite Orient's skepticism, Tavenner has enjoyed broad bipartisan support from professional groups as well as politicians. House Majority Leader Eric Cantor (R-Va.) will introduce her today. He has praised her as someone who would 'be a real benefit to patients." Cantor worked with Tavenner early on in her career as an executive with HCA (Hospital Corporation of America) during the 1990's. "Cantor estimates they've worked together for about 15 years now, most recently coordinating on Virginia-related issues, particularly Medicaid." 

According to Politico, Cantor's endorsement doesn't mean the hearing will be a cake walk for Tavenner. 

Senator Chuck Grassley has already demanded Tavenner come clean about how Medicare Advantage rates were leaked last Monday prior to a public announcement.

Grassley asked Acting Administrator Marilyn Tavenner of the Centers for Medicare and Medicaid Services (CMS) for the details on a key decision on Monday over Medicare Advantage payment rates.  According to the Wall Street Journal, a firm call Height Securities issued an advisory that "a deal has been hatched to protect Medicare Advantage rates" from a proposed cut, and that stocks rose as a result of the advisory.  The advisory was issued before CMS' decision became public, raising questions about whether CMS or other federal agencies involved in the decision allowed sensitive information to flow to non-governmental entities before the government made its announcement. 

In addition to grilling her on the implementation of key Obamacare provisions, here are a few more areas of interest the Senators might want to examine. 

Psychiatric Solutions Inc., Joey Jacobs and Whisper Ridge

At the time Tavenner came on board as Tim Kaine's HHS Secretary, Psychiatric Solutions Inc. (PSI) the  private hospital group based in Tennessee, founded by another longtime HCA executive Joey Jacobs, had a long record of alleged state violations not only in Virginia but across the country at their various psychiatric facilities. 

In 2006, PSI-owned Whisper Ridge Behavioral Health System in Charlottesville, Virginia was investigated by police for multiple human rights violations. It was just one of many PSI psychiatric hospitals nationwide facing similar allegations.

The situation was so bad that Dr. James Reinhard, the Commissioner of the Virginia Department of Mental Health, Mental Retardation and Substance Abuse Services sent a 16-page letter to Whisper Ridge's Chief Operating Officer citing numerous violations including "staff sexual abuse of residents, overdoses, suicide attempts, multiple medication errors and egregious neglect of juveniles by staff. Reinhard notified PSI of his Department's intention to revoke Whisper Ridge's license.

But Whisper Ridge was allowed to stay open after paying fines and changing its name.  Did David Hallock, a lobbyist for PSI with government connections, influence the outcome of the investigation?

What does PSI  have  to do with Marilyn Tavenner who told the Washington Post that mental health services was one of her five focus areas? 

While she was still Virginia's HHS secretary in 2009, Tavenner and the governor conspired to delete certain details from a report on two state children's hospitals which Kaine wanted to close. Why?

PSI was interested in purchasing the facilities, and PSI was a major donor to Kaine's political action committee at the time.

E-mails obtained by the Richmond Times-Dispatch revealed communication among the governor's office, Tavenner, and the Department of Behavioral Health and Developmental Services even before the panel's report was complete. 

One e-mail indicates that Tavenner personally escorted PSI officials on a tour of one of the state hospitals, where the latter displayed an interest in "treating the young people there."  In another e-mail regarding the tour, Tavenner wrote that she was "trying not to make a big deal of it for obvious reasons."

The state Department of Behavioral Health and Developmental Services said a series of e-mails from Nov. 5 to Dec. 16, 2009, between the governor's office, then- Secretary of Health Marilyn Tavenner and the department discussed revisions to an expert panel's report on the care for children with severe mental illness.

The revision removed from the report a finding that no other hospitals in Virginia could care for the 800 children with serious mental illnesses treated every year at the state's Commonwealth Center for Children and Adolescents in Staunton and a smaller facility in Marion.

When contacted about the e-mails in March 2010, Tavenner, the newly appointed CMS deputy director told the Times-Dispatch that she no longer worked as Virginia's HHS secretary and would not comment.  Kaine, who went on to become chairman of the DNC, has also refused to talk about his part in the quashed findings.

Was Tavenner unaware of PSI'S reputation? How could she be? Dr. Reinhard answered to Tavenner in late 2006 after she took over. Reinhard eventually left his position as mental health commissioner in 2010 and is currently medical director of Virginia Tech's counseling center. 

Did Tavenner have personal connections to Joey Jacobs and PSI lobbyist David Hallock?

Bob Tavenner, Husband/Ex-husband of Marilyn

In addition to the alleged pay-to-play PSI scheme, Tavenner's previous ties to Democrat Tim Kaine and the Hospital Corporation of America (HCA), a corporation which had to pay out billions in fines for overbilling Medicare in 2001, the committee might want to explore Tavenner's husband/ex-husband's position as Director of Virginia's Division of Legislative Services (DLS).

Mr. Robert Tavenner was appointed in 2011 months after Mrs. Tavenner was named Berwick's number two at CMS. In a June 2011 news report, Marilyn was called Robert's "ex-wife," but in December 2011 online bios had the two still married with three children.

Bob Tavenner's responsibilities as chief operating officer of Virginia's legislative services agency includes preparing the Code of Virginia and the Virginia Administrative Code.

The DLS also "plays a very critical supporting role in the legislative process...The DLS Director leads the legislative branch agency in providing clear, concise and objective legal and research support to all 140 members of the Virginia General Assembly, as well as assistance with various boards and commissions serving the public."

One of those boards reviews Freedom of Information Act requests so it's not a stretch to think Marilyn's duties as CMS administrator might at some time intersect with Bob's lead role at DLS.

Double Dipping

The Washington Times reported on another possible conflict of interest if Ms. Tavenner is confirmed. Tavenner will receive an annual retirement salary of $160,000 from her old employer HCA .

Not a big deal unless one considers she will head an agency that has direct contact with healthcare providers like HCA who routinely lobby CMS. A White House spokesman said Tavenner does not need a waiver since she retired from the company six years ago but she "would likely be recused from anything that would impact HCA's ability and willingness to make the payment."

Read more M. Catharine Evans at Potter Williams Report

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