provisions eliminate most of the prerogatives heretofore enjoyed by
individual and small group health insurance carriers under state statutes and
common law.135 The maxim that remedial statutes should be liberally
construed seems particularly relevant here.136 This rule argues against
relying solely on contract rules of construction, particularly those that are
limited to the text of an insurance policy’s coverage provisions, and in favor
of interpreting ACA plan coverage in light of legislative intent or goals.
Arguably, then, the ACA’s requirement for EHB coverage should be
liberally construed. At the same time, the ACA goal of affordability argues
against a construction so liberal that it would jeopardize the solvency of the
health insurance industry.
Some might argue that the ACA could be considered a statute in
derogation of the common law. Such statutes were traditionally construed
narrowly,137 but that rule may hold little sway today.138 ACA provisions
governing insurance do not expressly abrogate common law rules for
interpreting insurance policies. Yet, the ACA does impose federal rules on
activities – designing, pricing, and selling health insurance policies – that
were already regulated in part at both the state and federal level.139 The
more persuasive view of the ACA is a remedial statute that expands federal
regulation to remedy the market failures remaining under pre-existing laws.
and Health Care (Feb. 2009), available at http://www.iom.edu/~/media/Files/
Care/Americas%20Uninsured%20Crisis%202009%20Report%20Brief.pdf; see PAUL
FRONSTIN, EMP. BENEFIT RES. INST., SOURCES OF HEALTH INSURANCE AND CHARACTERISTICS
OF THE UNINSURED: ANALYSIS OF THE MARCH 2011 CURRENT POPULATION SURVEY 7 (Sept.
2011), available at http://www.ebri.org/pdf/briefspdf/EBRI_IB_09-2011_No362_
Uninsured1.pdf (for data on the numbers of uninsured in 2010).
135. Mariner, supra note 10, at 439–40.
136. See Jacob Scott, Codified Canons and the Common Law of Interpretation, 98 Geo.
L.J. 341, 402, (2010) (concluding that nineteen states have codified this rule as a method of
interpreting their state statutes).
137. See Roscoe Pound, Common Law and Legislation, 21 Harv. L. Rev. 383, 386
138. See Scott, supra note 136, at 402 (finding that twenty states rejected the rule that
statutes in derogation of the common law should be strictly construed); see also Pound,
supra note 137, at 387 (arguing that the principle that statutes in derogation of the common
law should be strictly construed was already an anachronism in 1908, because “no statute of
any consequence dealing with any relation of private law can be anything but in derogation
of the common law”).
139. See, e.g., Employee Retirement Income Security Act, 29 U.S. C. A. §§ 1001 (West,
WestlawNext through P.L. 113-296 (excluding P.L. 113-235, 113-287, and 113-291); Health
Insurance Portability and Accountability Act of 1996, Pub. L. 104-191, 110 Stat. 1936
(codified as amended in scattered sections of 29 & 42 U.S. C.); Americans with Disabilities
Act, 42 U.S. C. A. §§ 12101 (West, WestlawNext through P.L. 113-296 (excluding P.L. 113-
235, 113-287, and 113-291); Genetic Information Nondiscrimination Act of 2008, Pub. L.
110-233, 122 Stat. 881 (codified as amended in scattered sections of 29 & 42 U.S. C.).