What adjective would most people associate with the word “bureaucrat”? For many, it would be “inefficient,” “inept,” or “incompetent.” But another that is just as descriptive is “lifesaving.”
Dr. Frances Kelsey, who died this month at the age of 101, was celebrated as an American hero for her work as a medical officer at the Food and Drug Administration (FDA). She saved thousands of lives and prevented untold suffering by using techniques that earn bureaucrats a bad name, delay and obstruction, to keep the drug thalidomide from reaching the market in the United States in 1961.
Thalidomide is a sedative that had been approved for sale in Europe four years earlier and was prescribed for morning sickness during pregnancy. The American manufacturer, Richardson-Merrell, saw a large potential market in the United States. However, Dr. Kelsey, who was assigned to review its application for marketing approval, was troubled by questionable safety data. The law in effect in 1961 required that she issue a decision within 60 days, but she was able to buy more time by asking for additional information.
Why would Congress have limited Affordable Care Act subsidies to residents of only some states – those that establish their own insurance exchanges? The law authorizes credits for the purchase of insurance “through an Exchange established by the State under section 1311.” The D.C. Circuit found that this wording excludes federally established exchanges and that Congress might have intended this to induce states to establish their own exchanges rather than letting the federal government take over.
But the Court acknowledged that there is no evidence of such intent in the legislative history. And such a purpose would conflict with the ACA’s overall goal of extending health insurance access to all Americans.
With no legislative history as a guide, is there another plausible explanation of Congressional intent? Is the best answer to the D.C. Circuit’s opinion that the phrase was a drafting error, as the dissent seems to imply? Why else would it have found its way into the law?
Inartful though it may be, the wording can be seen to serve a different purpose that is consistent with the rest of the ACA. It can be understood not as a way to distinguish exchanges established by a state from those established by the federal government but to distinguish those established publicly from those created privately.
Robert I. Field, JD, MPH, PhD is a nationally known expert in health care regulation and its role in implementing public policy. He holds a joint appointment as professor of law at the School of Law and professor of health management and policy at the School of Public Health at Drexel University. He is also a lecturer in health care management at the Wharton School of the University of Pennsylvania and a senior fellow of Penn’s Leonard Davis Institute of Health Economics.
Professor Field is the author of Mother of Invention: How the Government Created Free-Market Health Care, just released by Oxford University Press. It presents an historical overview of four key health care sectors to demonstrate the underlying importance of government programs in creating and maintaining the health care system and to place health reform in the context of an ongoing evolutionary process. He is also the author of Health Care Regulation in America: Complexity, Confrontation and Compromise, a comprehensive overview of health care regulation, also published by Oxford University Press.
Professor Field’s recent scholarly work has focused on health reform and is effects on the structure of the health care system, ethical issues in vaccines, and policy implications of genetic databases. His work has appeared in the University of Pennsylvania Law Review, the Villanova Law Review, the Drexel Law Review, Health Affairs, Vaccine, and the Journal of Clinical Oncology. He writes a blog for the Philadelphia Inquirer on health policy entitled the Field Clinic, which features 14 prominent Philadelphia health care leaders as regular contributors.
Professor Field speaks nationally on health care topics. He is frequently quoted in the press, including stories in the New York Times, Wall Street Journal, Washington Post, Boston Globe, Philadelphia Inquirer, and BusinessWeek and has discussed health policy issues on CNN, NPR, ABC, and numerous local television and radio stations. He has also been a frequent commentator on WHYY, the NPR affiliate in Philadelphia.
Before joining the faculty of Drexel University, Professor Field founded and chaired the Department of Health Policy and Public Health at University of Sciences in Philadelphia, where he was also professor of health policy. Previously, he led business planning and development for the primary care network of the University of Pennsylvania Health System. He has also conducted health policy research at the Institute of Medicine of the National Academy of Sciences and the Center for Law and Health Sciences at Boston University, practiced health law with the Philadelphia firm of Ballard Spahr, LLP, and directed public policy research for Cigna Corporation.
Professor Field earned a Ph.D. in psychology from Boston University, an M.P.H. from the Harvard School of Public Health, a J.D. from the Columbia Law School, where he was associate editor of the Columbia Journal of Environmental Law, and an A.B. magna cum laude from Harvard College.