WASHINGTON — The Senate Finance Committee split along party lines in Thursday’s vote on President Biden’s nominee to head CMS, voting 14-14 to report the nomination to the full Senate without a recommendation for confirmation.
Committee Republicans’ votes against the nominee, Chiquita Brooks-LaSure, largely did not have to do with her background or qualifications; several said they agreed that she was qualified for the position. Instead, they were objecting to the Biden administration’s decision on April 16 to revoke a 10-year 1115 Medicaid waiver extension for the state of Texas, approved in January by the Trump administration.
“She sounds to me like a very qualified person, and I appreciate her willingness to meet with me on this issue,” Sen. John Cornyn (R-Texas), a member of the Finance Committee, said of Brooks-LaSure. “And frankly, I was looking forward to voting for her nomination, but this unprecedented action by the administration threatens the security of my state’s Medicaid program … and it sets a dangerous precedent of an administration undoing agreements made in good faith between the states and the federal government in a previous administration. Until Texas can even receive an assurance that this action will be rectified and the rug will not be pulled out from under our poorest patients, I cannot support the nominee. At this time, I don’t know what else to do.”
Sen. Mike Crapo (R-Idaho), the committee’s ranking member, agreed. “It’s particularly confusing that the administration would do this now, when nominees are before this committee and are seeking the advice and consent of the Senate,” he said.
Alluding to rumors that the administration was trying to use Medicaid waivers as leverage to get recalcitrant states to expand their Medicaid programs, he added: “The timing of the decision and the widespread reports that this action was part of a broader strategy to incent states to expand coverage through different means are discouraging, and raise serious questions about the administration’s commitment to engagement with the states. Unfortunately, after CMS’s actions on Friday, I cannot vote in favor of Ms. Brooks-LaSure.”
The Texas waiver extension would have provided the state with $11.7 billion annually through 2030 and helped to fund the state’s uncompensated care pool. The CMS decision to rescind the waiver came in the form of a letter to Stephanie Stephens, the state’s Medicaid director, from CMS acting administrator Elizabeth Richter. Richter noted that in its application for a waiver extension, the state sought to be exempt from the usual requirement of a notice and comment period.
“Texas asserted that this exemption was necessary to provide financial stability for providers in the state, as well as the state’s Medicaid program, in the midst of the COVID-19 public health emergency,” Richter wrote.
However, “the state did not articulate a sufficient basis for us to conclude that approving the state’s emergency request for an exemption from the normal public notice process was needed to address the COVID-19 public health emergency or other sudden emergency threat to human lives,” she continued. “Instead, Texas’s request for an extension of the [waiver] and the amendments we initially approved alongside the extension were ordinary programmatic actions that could have proceeded, and still may proceed, through the ordinary programmatic processes,” including a period for public notice and comment.
The rescission means that absent any further action, Texas’s 1115 waiver will end on Sept. 30, 2022.
Committee chairman Ron Wyden (D-Ore.) sought to allay senators’ concerns, to no avail. At Brooks-LaSure’s confirmation hearing last week, “both of the initial questions from me and from Sen. Crapo were on waivers because we understand the importance of letting states innovate,” Wyden said, adding that he himself authored successful legislation to implement another type of waiver for Medicaid known as Section 1332.
“I know that my colleague from Texas is very troubled about the Texas situation, and I want him to know that after we move ahead — because it’s critically important to move ahead on these nominations today — he has a pledge from me personally, as the author of the principal waiver approach, to work closely with him and the administration to see if we can find some common ground,” Wyden said.
He denied a request from Cornyn to postpone the committee vote until Cornyn could discuss the issue with White House officials.
Under Senate rules, Senate Majority Leader Chuck Schumer (D-N.Y.) or Senate Minority Leader Mitch McConnell (R-Ky.) can now make a motion on the Senate floor to vote on the nomination despite not getting any recommendation one way or the other from the Finance Committee, Wyden said.
The whole Senate itself is also split 50-50 along party lines, but if a full Senate vote on Brooks-LaSure’s nomination ended in a tie, it would be broken by Vice President Kamala Harris. Cornyn has already put a “hold” on that part of the nomination process, but it is not expected to have much practical effect other than to possibly slow down the nomination vote.
In a separate vote of 20-8, the committee voted in favor of the nomination of Andrea Palm to serve as Deputy Secretary of Health and Human Services. That nomination will be sent to the full Senate with a recommendation for approval.