EHB and its elimination of traditional methods of selecting and
ACA plans do have the characteristics of insurance policies that make
the doctrine of reasonable expectations a potentially useful rule of
construction. First, and most obviously, ACA plans are contracts of
adhesion – standard form contracts for consumer insurance – the type of
insurance contract that the doctrine of reasonable expectations fits best.75
As Keeton noted, “the insured is left little choice beyond electing among
standardized provisions offered to him, even when the standard forms are
prescribed by public officials rather than insurers.”76 The standardized
form may still offer some value to the extent that it provides uniform terms
in compliance with ACA requirements and approved by state insurance
regulators.77 However, insurers, rather than regulators, typically prepare
the plan language, so terminology is not necessarily uniform.78 Moreover,
as long as the Secretary and state regulators allow insurers to draft their
own ACA plans, variation in policy language is likely to remain.79 In
these circumstances, the ACA’s goal of ensuring a reasonably uniform
package of benefits may not be attained without a reasonably uniform
principle for interpreting EHB policy language.
Second, ACA plans may be more “adhesive” than ordinary insurance
policies, because individuals must buy a policy or face a penalty.80 Like
consumers who purchase other types of insurance, purchasers of ACA plans
have little bargaining power.81 However, this is not the typical take-it-or-leave-it situation most consumers confront with standard form contracts.
While ordinary insurance purchasers may have little or no choice of an
automobile insurance policy, for example, they can refuse to buy a car (at
least in theory) and thereby avoid having to buy insurance without losing
any money. Persons obligated to obtain minimum coverage under the ACA
75. See Abraham, Policy Interpretation, supra note 7, at 540.
76. Keeton, Part One, supra note 44, at 966.
77. Where basic coverage terms are standard, consumers may be better able to compare
other terms that may be important to them, such as premium rates, cost sharing, and
participating providers. Standard forms have other recognized advantages, such as defining
terms uniformly, reducing the transaction costs of negotiating individual agreements with
numerous similarly situated individuals, and avoiding the need for individualized
underwriting. See Slawson, supra note 55. The ongoing development of rules for web-based
Summaries of Benefits and Coverage offers some promise here, although perhaps not
enough to clarify EHB. See supra text accompanying notes 35–40.
78. This is not unique to health insurance, of course. See Keeton, Part One, supra note
44, at 966–67.
79. See supra text accompanying notes 29-32.
80. 26 U.S. C. § 5000A (2015).
81. See Schwarcz, supra note 40; see Daniel D. Barnhizer, supra note 71.