The Need for a New Compact

Increasingly stringent limits on the HHS secretary’s flexibility are hampering departmental leadership. A secretary’s role is to focus on broad goals and strategies and gather the resources to meet them, as well as respond quickly and effectively to emergencies or emerging threats. But this role has become increasingly difficult to carry out, because secretarial authority has eroded to the point that in some areas it is no longer commensurate with the responsibilities of the position.

Most of these limits on authority have come about because of Congress’s increased attention to the details of departmental management and operations. Some of the former secretaries interviewed for this report described the degree to which Congress “has become much more directive in specifying the functions of each unit of the department,” including crafting job descriptions and the “fine details” of program operations and delivery, such as, “including floors and ceilings on spending and service, as well as a rising tide of earmarks, or what Congress now calls ‘congressionally directed funding’,” that reflect particular interests (Appendix G).

As a result, the secretary and the department now are in danger of being hamstrung by these externally imposed restrictions. For example, until recently,9 Medicare could not add prevention benefits without a change in statute. In other cases, Congress has taken away HHS’s flexibility to test new approaches. For example, it did not allow CMS to test either competitive pricing of managed care plans in areas with good plan penetration or competitive bidding of clinical laboratory services.

Congress frequently adds new responsibilities to agencies unaccompanied by the resources needed to carry out the new tasks. In a particularly troubling example, over the past two decades, Congress has enacted 125 statutes that directly affect FDA’s regulatory responsibilities—requiring new regulations, regulatory programs, or policy. In most cases these new requirements need scientific knowledge or expertise to develop and administer; in some cases they require laboratory research; but in no case has Congress provided an appropriation for staff or other re-


The Medicare Improvement for Patients and Providers Act of 2008, passed in July 2008, allows the Centers for Medicare and Medicaid Services to make national coverage decisions regarding prevention policies and authorizes the secretary of HHS to extend coverage to additional preventive services through the national coverage determination process.

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