in interpreting policy content.128 Professor Randall argues that state
“statutory and regulatory control of insurance relationships should displace
judicial reliance on contract principles.”129 ACA plans are not merely
analogous to statutes; their design and marketing are almost entirely
governed by legislation and implementing regulations. Federal law
dominates the regulatory framework for ACA plans, despite preservation of
many state insurance licensure and rate-setting functions.130 Indeed, the
scope of federal requirements make ACA plans look rather like part of a
more traditional federal benefit program, such as Medicare Part B,
administered by third party insurers.131
To properly construe the purpose, function, and terms of an ACA plan,
it may be impossible to avoid interpreting the statute itself. As Professor
Randall suggests, this shifts the starting point for interpretation from
contract to statutory rules of construction.132 If, as argued above, specific
benefits covered by EHB cannot be discerned from the plan text and the
parties have no ex ante specific intent respecting particular benefits
coverage, then contract-based rules of construction offer little guidance.
While the doctrine of reasonable expectations suggests searching for what
would be reasonable for a health plan of this type, it begs the question of
what counts as reasonable in such a plan. If one adds – or begins with – the
presumption that ACA plans are intended to function as means of financing
affordable health care, then courts may be able to resolve disputes by
focusing on the purpose that ACA plans are to serve.133
The ACA can be seen as a remedial statute – one enacted to remedy the
market failures that made health insurance unaffordable or unavailable to
more than eighteen percent of the population in 2010.134 ACA remedial
128. See Jeffrey W. Stempel, The Insurance Policy as Statute, 41 McGeorge L. Rev.
203, 215 (2010) [hereinafter Stempel Insurance Policy].
129. Randall, supra note 6, at 107; see also James Davey, Fracturing and Bundling
Risks: The Coverage Expectations of the “Real” Reasonable Policyholder, 11 Rutgers J.L.
& Pub. Pol’y 118, 135–38 (2013) (discussing an English case in which the court aligned
contract interpretation with statutory interpretation).
130. See Randall, supra note 6, at 126–36. (for a summary of the variation in often
limited regulatory authority of state insurance departments even before the ACA).
131. See BARBARA S. KLEES ET AL., BRIEF SUMMARIES OF MEDICARE & MEDICAID 11–13
(Nov. 1, 2014) (for a description of Medicare Part B, which combines federal payments with
beneficiary premium payments).
132. See Randall, supra note 6, at 108, 135–36. This suggests a question beyond the
scope of this article: whether ACA plans should be considered to be contracts of adhesion to
the extent that the statute and regulations serve to represent the interests of the consumer.
133. See Stempel, supra note 128, at 230 (“Particular applications of the policy to
unanticipated future disputes may not have been foreseen, but the general goals of the policy
provisions are ascertainable with reasonable certainty.”); Robert Katzmann, Judging Statutes
134. See generally Inst. of Med., America’s Uninsured Crisis: Consequences for Health