individual actually needs care. What care is appropriate often depends on
the medical condition and circumstances of the individual who seeks care.
For example, even if liver transplantation is expressly listed as a covered
service, it would be inappropriate for policyholders with medical
contraindications to receive such a transplant. This means that what counts
a covered benefit often cannot be specified ex ante in the policy when it is
issued, but must be decided ex post if and when a person seeks care.
The ex post nature of benefit coverage determinations suggests that
policyholders typically will not know what services an ACA plan will cover
unless there is consistency in interpreting EHB when people need health
care. When disputes arise over coverage, consistency may be achieved only
through the application of remedial principles, those that govern the
interpretation of coverage.
III. THE DOCTRINE OF REASONABLE EXPECTATIONS
The breadth and generality of EHB categories, enhanced by the
“considerations” with which they should be balanced and fleshed out, offer
a nearly blank canvas for benefit determinations. Still, it may be possible to
add a little paint to the canvas by considering just how EHB coverage
should be interpreted.
The generality of EHB categories suggests that the doctrine of
reasonable expectations may hold some promise as a rule of construction.
The doctrine of reasonable expectations occupies a somewhat unsettled
place in disputes over insurance coverage.44 Despite an impressive
pedigree and acceptance by most insurance law scholars,45 it has not been
44. See Robert E. Keeton, Insurance Law Rights at Variance with Policy Provisions, 83
Harv. L. Rev. 961, 969-977 (1970) [hereinafter Keeton, Part One] (introducing the
reasonable expectations principle); see also Insurance Law Rights at Variance with Policy
Provisions: Part Two, 83 Harv. L. Rev. 1281, 1285 (1970) [hereinafter Keeton, Part Two]
(arguing that the reasonable expectations principle could fruitfully apply to the interpretation
of warranties in insurance policies).
45. See Peter Nash Swisher, A Realistic Consensus Approach to the Insurance Law
Doctrine of Reasonable Expectations, 35 Tort & Ins. L.J. 729, 729-732 (2000) (stating that a
reasonable expectations analysis would help to assist “academic scholars, jurists, and
insurance law practitioners alike” if the theory is interpreted properly); see also Robert H.
Jerry, II, Insurance, Contract, and the Doctrine of Reasonable Expectations, 5 Conn. Ins.
L.J. 21, 22-23 (1998) (discussing the history of the doctrine of reasonable expectations);
Mark C. Rahdert, Reasonable Expectations Revisited, 5 Conn. Ins. L.J. 107, 111, 150 (1998)
[hereinafter Rahdert, Revisited] (describing four ways that the concept of reasonable
expectations is used and rejecting criticisms of each use); Jeffrey W. Stempel, Unmet
Expectations: Undue Restriction of the Reasonable Expectations Approach and the
Misleading Mythology of the Judicial Role, 5 Conn. Ins. L.J. 181, 206-10 (1998) [hereinafter
Stempel, Unmet Expectations] (discussing scholarly reactions to the reasonable expectations
theory and noting that scholars support the doctrine more than do courts); Stephen J. Ware, A