do not have that option82. They must “take” a policy, because they cannot
“leave it” without penalty.
Third, those who purchase through a marketplace exchange have no one
to bargain with. They log on to the state or federal website and choose from
a list of plans.83 The information about plans on these websites is typically
limited to a list of the general categories of covered benefits (e.g.,
emergency care, hospital care, maternity benefits), premiums, cost sharing
amounts, some service limits, and perhaps a list of participating provider
networks. The website may advise applicants to seek more information
from each insurer, but insurer websites contain little more information than
the exchange, suggesting that those who buy directly from an insurer are
likely to learn no more than those who buy through an exchange
ACA plan purchasers have few, if any, sources of independent
information about plan coverage.84 There is some evidence that
independent insurance brokers offer limited advice about different plans,
ACA plan purchasers typically cannot read a policy before buying it.
Most policyholders never receive a copy of the policy at all, until after the
contract has been made.87 Of course, few consumers read any insurance
policy in detail, if at all, and insurers do not expect them to do so.88
82. Persons exempt from the minimum coverage requirement or penalty include
undocumented aliens, 26 U.S. C. § 5000A(d)(3); persons with certain religious objections, id.
at § 5000(d)(2); prisoners, id. at § 5000A(d)(4), and persons below certain income
thresholds, id. at § 5000A(e).
83. See, e.g., HealthCare.gov, U.S. CTRS. FOR MEDICARE & MEDICAID SERVS.,
www.healthcare.gov (last visited Apr. 15, 2015) (federal); Access Health CT, www.ct.gov/
hix/site/ default.asp (last visited Apr. 15, 2015) (Connecticut); Get Covered Illinois,
https://getcoveredillinois.gov/ (last visited Apr. 15, 2015 ) (Illinois); Kentucky’s Healthcare
Connection, KYNECT, https://kynect.ky.gov/ (last visited Apr. 15, 2015 ) (Kentucky).
84. See generally, Schwarcz, supra note 40 (arguing that the Consumer Financial
Protection Bureau should encompass consumer protection in insurance markets).
85. See Daniel Schwarcz, Reevaluating Standardized Insurance Policies, 78 U. Chi. L.
Rev. 1263, 1267, 1322, 1329-1331 (2011) (presenting findings from a study of homeowners
86. Id. at 1323–25.
87. Keeton, supra note 44, at 968; see Schwarcz, Transparently Opaque, supra note 39,
at 421; Deborah Stone, Promises and Public Trust: Rethinking Insurance Law Through
Stories, 72 TEX. L. REV. 1435, 1438 (1994).
88. See Rakoff, supra note 56, at 1179; Michelle Boardman, Insuring Understanding: