S.Amdt. 4512

SA 4512. Mr. ROBERTS submitted an amendment intended to be proposed
to amendment SA 4500 proposed by Mr. Reid (for Mr. LeMieux (for
himself, Ms. Landrieu, Mr. Merkley, Mrs. Boxer, Ms. Cantwell, Ms.
Klobuchar, and Mrs. Murray)) to the amendment SA 4499 proposed by Mr.
Reid (for Mr. Baucus) to the bill H.R. 5297, to create the Small
Business Lending Fund Program to direct the Secretary of the Treasury
to make capital investments in eligible institutions in order to
increase the availability of credit for small businesses, to amend the
Internal Revenue Code of 1986 to provide tax incentives for small
business job creation, and for other purposes; which was ordered to lie
on the table; as follows:

At the end, add the following:

PART _--MISCELLANEOUS

SEC. ___. SENSE OF THE SENATE REGARDING THE RECESS
APPOINTMENT OF DR. DONALD BERWICK.

(a) Findings.--The Senate makes the following findings:
(1) On April 19, 2010, the President nominated Dr. Donald
Berwick to serve as the Administrator of the Centers for
Medicare & Medicaid Services (in this section referred to as
``CMS'') in the Department of Health and Human Services. As
of that date, the position was vacant for the first 16 months
of the Obama Administration.
(2) Since that date, Dr. Berwick has been undergoing the
bipartisan nomination investigation review process of the
Committee on Finance of the Senate (in this section referred
to as the ``Senate Finance Committee'') and there has been
ongoing activity as the Senate Finance Committee continues

[[Page S6224]]

to gather and review information from Dr. Berwick.
(3) The Senate Finance Committee review process for the
Berwick nomination was proceeding normally. A hearing on the
nomination of Dr. Berwick had been requested and no
objections had been raised to having the hearing.
(4) On July 7, 2010, less than 3 months after the
nomination and without a Senate Finance Committee hearing
taking place, the President recess-appointed Dr. Berwick to
serve as the Administrator of CMS. Dr. Berwick was sworn in
on July 12, 2010.
(5) The appointment of the Administrator of CMS is subject
to Senate confirmation under article II, section 2, clause 2
of the Constitution. Dr. Berwick's nomination was referred to
the Senate Finance Committee which has jurisdiction over
health programs under the Social Security Act and the
responsibility to examine Presidential nominees related to
these programs.
(6) It is especially true that Dr. Berwick's nomination
should have undergone the Senate Finance Committee nomination
review process in light of the significant responsibilities
of the Administrator of CMS.
(7) CMS is responsible for the health care of more than
100,000,000 Americans, and is one of the largest agencies in
the Federal Government.
(8) The recently enacted Patient Protection and Affordable
Care Act (commonly referred to as the ``health care reform
law'') significantly increases the responsibilities of CMS,
including half a trillion dollars in Medicare provider cuts
and the largest expansion of the Medicaid program since its
inception.
(9) The manner in which an individual nominated to serve as
the Administrator of CMS intends to carry out these
responsibilities is a serious matter and warrants a thorough
review. A thorough review is especially needed for Dr.
Berwick's appointment in light of statements he has made in
the past about health care rationing as well as the role of
government in health care.
(10) By recess-appointing Dr. Berwick, the President has
attempted to short circuit the requirement of article II,
section 2, clause 2 of the Constitution that he appoint
officers of the United States ``by and with the Advice and
Consent of the Senate''.
(b) Sense of the Senate.--It is the sense of the Senate
that--
(1) the recess appointment of Dr. Donald Berwick, while
consideration of his nomination to serve as Administrator of
CMS was proceeding normally through the Senate Finance
Committee nomination review process, constitutes an abuse of
power by the President; and
(2) notwithstanding his recess appointment to that
position, Dr. Donald Berwick should appear before the Senate
Finance Committee and respond to questions by members about
his qualifications to serve as Administrator of CMS.
______