February 5, 2021

The confirmations of Cabinet secretaries and federal agency directors by the U.S. Senate are critical and early milestones in any new President’s administration. Permanent department leadership allows the executive branch to more aggressively pursue the President’s policy agenda and vision, to establish routine processes that facilitate the work of the federal government, and to signal continuity to stakeholder communities. The Senate’s delay in reaching a power sharing agreement has acutely impacted a number of committees charged with processing and advancing nominees to lead key federal departments and agencies. These nominees include Xavier Becerra for Secretary of the Department of Health and Human Services and Neera Tanden for Director of the Office of Management and Budget.

This alert provides a snapshot of each agency’s anticipated role in fulfilling the Biden agenda and topics to watch during confirmation hearings. Polsinelli’s Public Policy Group is pleased to provide additional information or assistance on these topics upon request and will continue to monitor these developments.

Department of Health and Human Services (HHS): Xavier Becerra

HHS historically has served as a critical department within the federal government both in terms of its budget and outsized impact on public health. The COVID-19 pandemic has further elevated the work of HHS’ 11 main agencies and their importance to President Biden’s first 100 days in office and his legacy.

Currently, Xavier Becerra’s confirmation hearing is anticipated during the week of February 15 but a further delay may slow down subsequent appointments at the department and leave personnel gaps that prevent the administration from driving its objectives and implementing new policies. For instance, HHS soon must address a range of issues that straddle both immediate and longer-term priorities, such as COVID-19 vaccine distribution and further development of diagnostics and therapeutics; temporary provider flexibilities granted during the COVID-19 public health emergency; additional authorities and funding provided in last year’s virus relief packages; and potential upcoming action on priorities affecting Medicare, Medicaid, and health care affordability and access.

Topics to Watch: Becerra served in the U.S. House of Representatives for 12 terms, including on the powerful House Ways and Means Committee and as chair of both the House Democratic Caucus and Congressional Hispanic Caucus. Becerra’s seats on subcommittee panels dedicated to health and Social Security permitted him to work closely on issues impacting Medicare, federal deficits, and unemployment. As Attorney General of California, Becerra led a coalition of states in motions to uphold the Affordable Care Act and its provisions addressing health nondiscrimination. He also built a record on health care antitrust issues involving anticompetitive practices and mergers, and health care parity and access issues that included mental health benefits and services and Title X.

Office of Management and Budget (OMB): Neera Tanden

While OMB is known for its central role in drafting the President’s annual budget submission to Congress and coordinating agency funding proposals, it has other significant responsibilities within the executive budget process. Federal statute requires OMB to release, or apportion, Congressionally appropriated funding to agencies in specified increments to prevent shortfalls and ensure sustained financial resources throughout the fiscal year. OMB may include conditions for apportionment, such as requiring agencies to take certain actions before funding becomes available. It therefore employs substantial authority over when and how an agency may receive and expend its funding. OMB additionally is tasked with coordinating the administration’s legislative actions. Divisions within OMB clear agencies’ testimony before Congress, advise the President on Statements of Administration Policy, and review significant proposed and final rules prior to their publication. The Senate Homeland Security and Governmental Affairs Committee is scheduled to hold Neera Tanden’s confirmation hearing on February 9 and the Senate Budget Committee will hold its hearing on February 10.

Topics to Watch: Tanden worked on passage of the ACA in her role as a senior advisor at HHS and is a veteran of both the Clinton and Obama administrations. She has been involved in leading the Center for American Progress, a D.C.-based think tank, since its founding in 2003; has been open about her family’s personal experience of relying on public assistance during her youth; and has referred to budgets as “a reflection of our values.”