anomaly in the insurance field.10 The history of health insurance includes
examples of courts struggling with whether to classify health plans as
service contracts or as insurance for purposes of state insurance
regulation.11 With health insurance operating as a federally regulated
industry to finance health care, rather than offering only voluntary contracts
to accept certain risks, conventional rules of construction have diminishing
relevance. The question of how to interpret coverage governed by the ACA
becomes more acute as federal and state governments implement the new
regulatory scheme.12 The challenge is to move from the broad strokes of
the ACA canvas to more deliberate details.
This article attempts to take a first step in that direction, without – it
must be said – completing the picture. The article explores which rules of
interpretation should apply to one specific line of insurance – health
insurance policies, primarily qualified health plans, sold to individuals and
small groups through the exchanges and private markets governed by the
ACA.13 The ACA requires such plans to cover Essential Health
Benefits,14 described in Part II, but both the statute and the regulations
speak in broad categorical terms, leaving considerable discretion to insurers
to decide what to cover in particular health plans and in individual cases.
This raises the question of which rule – or rules – of construction should be
used to make coverage decisions and resolve coverage disputes.
Two possibilities are explored here. First, the doctrine of reasonable
expectations, described in Part III, holds some promise. Part IV examines
whether that doctrine is suited to making ex post decisions about what
health care is covered within the meaning of Essential Health Benefits
10. See Wendy K. Mariner, Health Reform: What’s Insurance Got to Do With It?
Recognizing Health Insurance as a Separate Species of Insurance, 36 Am. J.L. & Med. 436,
438 (2010) [hereinafter Mariner, What’s Insurance Got to Do With It?] (describing ways in
which health insurance differs from conventional insurance).
11. See, e.g., id. at 444 (describing health insurance as including elements of both
conventional insurance and service contracts); Jordan v. Group Health Ass’n., 107 F.2d 239
( D. C. Cir. 1939). See also Jerry & Richmond, supra note 7, at 24 (noting that in “the health
care arena, the line between an ordinary service contract and an insurance contract is more
12. See Mariner, Long Live Health Insurance, supra note 3, at 214 (concluding, “[T]he
ACA has taken the first step in the process to provide general standards for health insurance
coverage. The next step is to reevaluate the normative standards in insurance law that govern
what insurers must do for insureds at the level of patient care.”).
13. The article does not address state Medicaid expansion programs, including those
permitted pursuant to a waiver under Social Security Act § 1115, that are allowed to
establish benchmark equivalent coverage, which is similar to Essential Health Benefits. See
42 U.S. C. § 1396u-7(b)(2).
14. 42 U.S. C. A. § 18022(b) (West, WestlawNext through P.L. 113-296, excluding P.L.
113-235, 113-287, and 113-291); 42 U.S. C. A. § 300gg-6(b) (West, WestlawNext through
P.L. 113-296, excluding P.L. 113-235, 113-287, and 113-291).