Bill Pierce is a senior director in APCO Worldwide’s Washington, D.C., office. He specializes in advising health care clients; his work includes policy development, issue advocacy, message development, crisis communication and media relations.
There has been no shortage of debate, conversation and discussion about the Affordable Care Act (ACA) over the last year or so, which makes it hard to believe that one critical issue has received little if any attention – the new role of the U.S. Department of Health and Human Services (HHS) secretary. However, given the change that the ACA brings to the secretary’s job, a discussion of this issue is important and relevant for whoever holds this job in the future and for the regulation of health care in the United States.
Until the passage of the ACA, the HHS secretary had few direct regulatory responsibilities or authorities, unlike two appointees who work for the secretary — the FDA commissioner and CMS administrator. Each of these persons makes decisions that have a significant impact on individual companies and on the markets in which they operate. In fact, many of their decisions regarding regulations and approvals are announced after the stock market closes so the decision won’t impact the stock price at that moment. Until the ACA, the HHS secretary had faced few, if any, of these decisions.
But now that the ACA has become law, the HHS secretary has moved into a role more closely aligned with the FDA commissioner and CMS administrator. This new reality effectively changes the role of the secretary in a fundamental way.
Though political appointees, because of their role in regulating a significant part of the economy, the CMS administrator and FDA commissioner generally do not engage in overt political activity such as attending fundraisers, making political speeches, signing fundraising letters or attending the national nominating conventions. According to tradition, the treasury secretary, secretary of state and defense secretary also follow the custom of not engaging in public political activity. Even the public rhetoric of these office holders is generally non-partisan or, in the case of the treasury secretary, CMS administrator and FDA commissioner, they generally refrain from sharp criticism of the industries they regulate that can be construed as political in nature.
The HHS secretary has now become a regulator, especially of the health insurance industry, and as such needs to be perceived as fair and objective. The current secretary was deeply involved in the very partisan fight over passage of the ACA and engaged in sharp partisan defense of the plan. She was also very critical of the health insurance industry. She even went to Representative Paul Ryan’s (R-Wis.) district to campaign for his opponent. While legal in the strictest sense, it raises the question: Should someone who now holds such regulatory authority be engaging in such partisan activity?
It is expected that Cabinet secretaries (and those appointees who work for them) will defend and advocate for the president’s priorities and proposals. If not, they will find themselves out of a job. However, for those political appointees who directly regulate industries and companies, they must walk a fine line between advocacy, constructive criticism and political attack. The HHS secretary is now in the category of political appointees who must walk this line and as such must be held to a different standard than before the ACA.