(7) Rehabilitative and habilitative services and devices;
(8) Laboratory services;
(9) Preventive and wellness services and chronic disease management;
(10) Pediatric services, including oral and vision care.21
To complicate matters, the ACA also requires that four general
“considerations” be taken into account in designing coverage of EHB. First,
the EHB categories must be balanced, without undue weight given to any
single category.22 Second, coverage must not discriminate on the basis of
age, disability, or life expectancy.23 Third, the needs of diverse groups,
including women, children, and people with disabilities, should be taken
into account.24 And finally, benefits should not be denied on the basis of
age, life expectancy, present or predicted disability, degree of medical
dependency, or quality of life.25
The ACA charged the Secretary of Health and Human Services
(“HHS”) with the task of defining EHB.26 The Secretary, however,
initially allowed the states to flesh out the actual benefit package for their
own markets, within some broad parameters.27 States could select a
“benchmark” plan as the template for EHB.28 Benchmark plans that did
not include all ten EHB categories needed to add the missing categories to
qualify.29 This allowed the states and the health insurance industry to use
existing policies, often with little modification, as benchmarks to meet
eligibility requirements in the rapid gear-up to the first plan year of the
ACA’s operation, beginning on or after January 1, 2014.30
21. Id. The HHS regulations repeat the same unannotated list of benefits. See 45 C.F.R.
§ 156.110 (West, WestlawNext through Apr. 9, 2015; 80 Fed. Reg. 19,036).
22. § 18022(b)(4)( A).
23. See id. at § 18022(b)(4)( B) (“[T]he Secretary shall. . .not make coverage decisions,
determine reimbursement rates, establish incentive programs, or design benefits in ways that
discriminate against individuals because of their age, disability, or expected length of life.”).
24. Id. at § 18022(b)(4)( C).
25. Id. at § 18022(b)(4)( D).
26. Id. at § 18022(b)( 1).
27. 45 C.F.R. § 156.100 (West, WestlawNext through Apr. 19, 2015; 80 Fed. Reg.
19,036). See generally Inst. of Med. of the Nat’l Acad., Essential Health Benefits: Balancing
Coverage and Cost 79-102 (Cheryl Ulmer et al. eds., 2012) (providing recommendations as
to the process for defining EHB in terms of a typical small employer health insurance plan,
without specifying content).
28. Additional Information on Proposed State Essential Health Benefits Benchmark
Plans, CTRS. FOR MEDICARE & MEDICAID SERVS., http://www.cms.gov/CCIIO/Resources/
Data-Resources/ ehb.html (last visited Apr. 15, 2015) .
29. See id. (“[W]hen designing plans that are substantially equal to the EHB-benchmark
plan, beginning in 2014, issuers may need to conform plan benefits, including coverage and
limitations, to comply with [ACA] requirements and limitations.”).
30. See id. For a summary of each state’s benchmark plan, see Consumer Information