governed by the ACA. Since Essential Health Benefits are a statutory
requirement, Part V considers the need for rules of statutory interpretation.
These could compensate for a disadvantage of the doctrine of reasonable
expectations – the likely absence of specific expectations by the parties. The
article concludes that courts, insurers, and policyholders would be well
served by adopting a functional combination of both approaches, which
might be called reasonable statutory expectations, to carry out the
regulatory and financing functions of ACA plans. As noted in Part VI, this
is a modest conclusion, given the circumscribed scope of private health
plans currently subject to ACA requirements. It adds only slightly more
definition to the picture. Nonetheless, such a functional approach to
interpreting ACA plans could play a positive role and inform a growing
number of health plans.
II. THE AFFORDABLE CARE ACT AND ESSENTIAL HEALTH BENEFITS
The goal of the Affordable Care Act is to increase access to health care
by enabling individuals and small groups to purchase affordable health
insurance in the private market, including through web-based marketplaces
(called Exchanges in the Act).15 This goal is bolstered in part by the
individual mandate, and tax credits and subsidies to enable low-income
individuals to purchase insurance.16 To ensure the availability of
insurance, the Act requires private health insurers that offer qualified health
plans to individuals or small groups through a marketplace exchange or in
the regular private market to comply with specific requirements.17 These
15. Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2580 (2012) (“The Act aims
to increase the number of Americans covered by health insurance and decrease the cost of
health care.”); see 26 C.F.R. § 1.5000A-2 (2014) (West, WestlawNext through Apr. 9, 2015;
80 Fed. Reg. 19,036) (explaining minimum essential coverage).
16. See 26 U.S. C. A. § 5000A (West, WestlawNext through P.L. 111-148, 111-152,
111-159, and 111-173); see also 26 C.F.R. § 1.5000A-2 (West, WestlawNext through Apr. 9,
2015; 80 Fed. Reg. 19,036); 26 U.S. C. A. § 36B (West, WestlawNext through P.L. 113-296,
excluding P.L. 113-235, 113-287, and 113-291) (discussing premium assistance tax credits).
The majority of those who purchased coverage through an exchange are eligible for
subsidies currently, since the IRS interpreted §§ 1311 and 1321 of the ACA to permit
subsidies to those who purchased through the federal website. See 26 C.F.R. § 1.36B-2
(West, WestlawNext through Apr. 9, 2014; 80 Fed. Reg. 19,036) (detailing a taxpayer’s
eligibility for premium assistance).
17. 42 U.S. C. A. § 18021 (West, WestlawNext through P.L. 113-296, excluding P.L.
113-235, 113-287, and 113-291) (defining qualified health plans); § 18022 (defining
qualified health plans); §18022 (outlining the essential health benefit requirements). The
number of grandfathered plans has been declining. Sarah Barr, FAQ: Grandfathered Health
Plans, KAISER HEALTH NEWS (Nov. 13, 2013), http://kaiserhealthnews.org/news/
grandfathered-plans-faq/. Consequently, most grandfathered plans will ultimately be
replaced by self-insured plans or plans that must meet ACA requirements. E.g., 42 U.S. C. A.
§§ 18031, 18041 (West, WestlawNext through P.L. 113-296, excluding P.L. 113-235, 113-