Tom Price Will Have a Lot More Power Than He Wants You to Think

Trump’s HHS pick is downplaying his authority to overhaul Obamacare.

Rep. Tom Price testifies before the Senate Health, Education, Labor and Pensions Committee on his nomination to be Health and Human Services secretary in Washington, U.S., January 18, 2017.
Rep. Tom Price testifies before the Senate Health, Education, Labor and Pensions Committee on his HHS secretary nomination in Washington, D.C. on Wednesday.

Joshua Roberts/Reuters

Rep. Tom Price, Donald Trump’s pick to serve as Health and Human Services secretary, was trying not to answer a yes-or-no question from Democratic Sen. Maggie Hassan on Wednesday morning. Substitute Hassan with the name of any other Democrat on the Senate Health, Education, Labor and Pensions (HELP) Committee, and you have the story of half the hearing—the other half being Republican senators defending Price against attacks on his character.

It was late into the first of Price’s two confirmation hearings—the Senate Finance Committee will also hold a Price hearing next week—that Hassan, a new senator, brought up a central regulation of the Affordable Care Act: the requirement that plans sold on insurance exchanges cover 10 so-called “essential benefits.” Hassan was focusing on one particular benefit, coverage for mental health services and substance-abuse treatment. She argued that many insurance companies weren’t covering these until they were required to by law. Did Price believe that it was a “good thing” for this benefit to be required by law?

Price, as he often did during the hearing, first stated his boilerplate belief that health care policy should allow patients to choose plans with the benefits that suit their needs. Hassan reiterated her point that insurance plans in certain markets may not even offer the benefit if not required by law, so it would not be among the many choices available to patients in this vast buffet of choice that Republican health care reformers swear they’re going to establish.

After several rounds of this, Price reverted to what, to me, was the most consistently detached of his fallback responses: that he’s just an “administrator,” and that all the choices abut health care policy in this country will be made by his interrogators on the HELP Committee and in Congress more generally.

“The good news for you,” Price said, “is that, as an administrator, if I am privileged to serve in that capacity, that I follow the policies adopted by the Congress of the United States and signed by the president, so we look forward to working with you to make certain those kind of things are covered.”

Promises to simply implement the law are a common feature in confirmation hearings. It’s always a dodge, though, and it’s especially a dodge for the incoming Republican Health and Human Services secretary, who’ll be expected—and is eager—to do as much as he can administratively to roll back the Affordable Care Act.

He didn’t just bob and weave during the essential benefits suggestion. Earlier in the hearing, Pennsylvania Sen. Bob Casey used his seven minutes to roll through a slew of oftentimes overlooked Affordable Care Act regulations, among them that insurers could no longer deem domestic violence a pre-existing condition or a justification for charging women higher premiums. “Will you commit to maintaining the protections that ensure that victims of domestic violence will not be discriminated against when purchasing health insurance?” Casey asked. Price responded indirectly, and somewhat coldly, stating that it’s “absolutely vital” that such victims not be “priced out of the market.” Casey cut him off—“I don’t want to get hung up on ‘priced out of the market’ ”—and reiterated: “What I’m asking for is an ironclad guarantee that that circumstance, that horrific circumstance, will never be a bar to coverage, treatment, or care?”

“It certainly shouldn’t be,” Price said. Then: “And as you well know, if I’m fortunate enough to be confirmed, that’s an administrative role, and it’s a policy question that the legislators would [determine].”

When Sen. Sheldon Whitehouse pressed Price on whether he believes the Medicare Part D “donut hole” for prescription drug coverage, which the ACA plugged, would be reopened, Price again deferred to the legislative branch. “You know well that the reopening of the donut hole would be a legislative activity, not an administrative activity.”

“But you’ll be the secretary of Health Human Services,” Whitehouse responded. “You’ll be doing a lot of work to prepare this legislation, and to do the technical work behind it for the administration.”

It was nice that Whitehouse, at least, took it upon himself to remind Price that he will not just be some glorified intern at the Department of Health and Human Services, filling out paperwork and answering the phones, with little agency for crafting policy himself. I understand why Price would want to diminish his role. It shows deference to Congress, which is one sure way to flatter members of Congress in hearings. It shows strict adherence to the law as written, a practice conservatives believe the Obama administration abandoned entirely. Most importantly, it’s a useful dodge that’s available to all nominees in tight spots during confirmation hearings.

It is also silly and, in this case, with major health care policy being the focus of the next few months of executive and legislative activity, misleading about the authority of the post he’s been nominated to assume.

As Whitehouse said, Price will not just be some administrator; he will be the secretary of Health and Human Services. He was chosen for this role not because he’s supremely well-versed in McKinsey’s management-consulting best practices. He was chosen because he’s an esteemed physician, and one of the Republican Party’s go-to experts on health care policy and the federal budget.

But Whitehouse sells Price’s would-be authority short, too. It’s not just that he’ll have a major hand in working with congressional Republicans to craft replacement legislation and then implementation. It’s not just administrative and advisory work. Price, as secretary of Health and Human Services, will be the one in charge of writing specific rules and policies—i.e., weakening regulations the Obama administration put on the books. As Republican Sen. Lisa Murkowski said during her questioning of Price, speaking specifically about the “regulatory burden” placed on small, rural hospitals, “You can do things administratively early on should you be confirmed to this position.”

Price’s exercise of that authority isn’t a side story. It’s central to how Republicans plan to undo the Affordable Care Act. As Republicans have enjoyed pointing out for the past seven years, the text of the act handed a lot of authority to the secretary of Health and Human Services to write the rules designed to reach a certain goal set in the legislation. Consider, to Hassan’s point, the essential benefits. The law itself created the category of essential benefits requiring no-limit coverage, and then gave the secretary authority to flesh out what, specifically, acceptable coverage would include. The HHS rules that have gotten the most attention over the years are those governing coverage for birth control. Price’s opinion on that will no longer just be his opinion. It will be the opinion of the U.S. government.

The Trump transition team, up to and including Trump himself, has been gloating about how it’s going to begin unraveling the Affordable Care Act administratively on day one. Once Price is installed, Republicans are going to look to him to walk back regulations through his authority as secretary—something that will be important to keep insurance markets afloat if Republicans, as they’re planning to do, race to repeal the tax-and-spending portions of the law through reconciliation but have to leave the regulations on the books. As Sen. Bob Corker told Politico earlier this week: “There’s so much [Price] can do with a pen. You don’t have to pass legislation. He can modify how we look at the 10 essential benefits. He can give the states more flexibility on the Medicaid program. There’s a lot that he can do to really ease the way for reform.”

Or just to manage the post-repeal, pre-“reform” limbo to which federal health care policy may be condemned forever. There is a possibility—I know, I know—that after Republicans repeal what they can of the Affordable Care Act through reconciliation, they’ll never be able to muster together 60 votes in the Senate and 218 in the House for its replacement(s). In that case, Republicans are going to look to Price to use all of his authority to walk back regulations, since they can’t do so legislatively.

This job is one of the biggest jobs in the administration. His opinions on all of the regulations matter, and Democrats on the Senate Finance Committee next week shouldn’t allow themselves to be flattered when he says that he’s but a simple country administrator, tasked with implementin’ the letter of the law that they decide.