and impose limits out of the insurer’s hands.123 Moreover, the insurer is
not free to select risks for ACA plans, but must ensure balanced coverage
under the “considerations,” all while keeping premiums affordable.124
Thus, what might be reasonable for a pre-ACA health insurance policy may
not be reasonable for an ACA plan.
The ACA alters the expectations of both insurer and insured. In the
context of ACA plans, the doctrine could ask what therapy or service an
ACA plan should reasonably be expected to cover in light of the ACA’s
goal of ensuring that ACA plans cover a comprehensive set of benefits –
EHB – for a premium that is affordable to the population required to obtain
V. REASONABLE EXPECTATIONS OF ACA PLANS AND RULES OF
The ACA creates legislative expectations for ACA plans. These can be
easily inferred from the statutory requirements for ACA plan coverage
(including EHB), guaranteed issue and renewal, no dollar caps on coverage,
nondiscrimination on the basis of health factors, actuarial values, medical
loss ratios, risk adjustments, and reinsurance, to name only a few.125 ACA
plans are almost entirely creatures of the federal statute.126 This suggests
that a fair interpretation of ACA plan terms necessarily depends on
understanding – and interpreting – the statutory provisions governing ACA
Rules of statutory interpretation are likely to be necessary in
considering how EHB coverage should be construed.127 Professor Stempel
compares the function of standard form insurance policies to that of
legislation, arguing that canons of statutory construction could prove useful
123. Mariner, supra note 10, at 439–40.
124. NAT’L ASS’N OF INS. COMM’RS, ADVERSE SELECTION ISSUES AND HEALTH
INSURANCE EXCHANGES UNDER THE AFFORDABLE CARE ACT 2–4 (2011), available at
125. See supra notes 17–18.
127. For general treatments of statutory analysis, see Frank B. Cross, The Theory and
Practice of Statutory Interpretation (2009); William N. Eskridge, Jr. et al., Cases and
Materials on Legislation: Statutes and the Creation of Public Policy (4th ed. 2007 & Supp.
2010); Norman J. Singer & J. D. Shambie Singer, Sutherland on Statutes and Statutory
Construction (2007); Peter L. Strauss, Legislation: Understanding and Using Statutes (2006);
William D. Popkin, Statutes in Court: The History and Theory of Statutory Interpretation
(1999); see also Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the
Inside—An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I,
65 Stan. L. Rev. 901, 965 (2013) (finding that legislative staff viewed legislative history as
second only to statutory text as the most important tool for interpreting legislation).