requirements, and statutory interpretation is also a matter for the judiciary.
Basing decisions solely on the text of an ACA plan is to pretend to find the
meaning of words without admitting the pretense.158 Since ACA plan
provisions on EHB are likely to offer only general descriptions, courts have
little choice but to interpret their terms in light of the statutory purpose that
such plans are intended to implement. To do otherwise risks overstepping
the boundary between Congress and the judiciary.
Furthermore, ex post EHB coverage determinations are individualized
decisions, where there is less pressure for the application of a uniform rule.
The issue is whether an insurer is bound to pay for a particular course of
therapy for one individual, not a search for the plain meaning of a text
applicable to all policyholders. What may be reasonable and necessary for
one patient may not be for another, and decision-making takes place in the
context of limited resources. Courts could consider the cost to the insurer of
covering that therapy for the proportion of policyholders who are predicted
to need it and compare that cost with premiums. Surely insurers could
provide some actuarial support for the assumptions underlying the premium
rate. Insurers should be expected to pay for what the policyholder
reasonably needs and nothing more, in order to ensure the availability of
funds to cover every policyholder’s reasonable needs.159 In essence,
interpreting EHB coverage in individual cases is analogous to deciding
whether the insurer is acting in good faith, a doctrine that courts have few
qualms applying, despite its independence from the text of a contract.160
To be sure, the judicial task of dispute resolution under this analytic
framework may be complex.161 Nonetheless, it may be more honest and
acceptable to all parties than attempts to force ACA plan generalities into
ill-fitting contract rules of construction. Courts need not resort to fictions
like the intent of the parties or ambiguous text, but can focus on identifying
appropriate services within the constraints of available resources.162
158. The same could be said of judicial conclusions about a policyholder’s
expectations. See Fischer, supra note 49, at 164 (“The expectations of the policyholder are
defined by the judge’s perception of what constitutes a fair and just bargain.”).
159. See Deborah A. Stone, Promises and Public Trust: Rethinking Insurance Law
Through Stories, 72 TEX. L. REV. 1435, 1440–45 (1994).
160. See Kenneth S. Abraham, Liability for Bad Faith and the Principle Without a
Name (Yet), 19 Conn. Ins. L.J. 1 (2012/2013); Robert H. Jerry, II, Bad Faith at Middle Age:
Comments on Abraham, “Liability for Bad Faith and the Principle without a Name (Yet)”,
19 Conn. Ins. L.J. 13 (2012/2013).
161. See Randall, supra note 6, at 136.
162. For examples of studies of efforts to identify cost-effective health services, see
Niteesh K. Choudhry et al., Five Features Of Value-Based Insurance Design Plans Were
Associated With Higher Rates Of Medication Adherence, 33 Health Aff. 3493 (2014);
Matthew L. Maciejewski et al., Value-Based Insurance Design Program in North Carolina
Increased Medication Adherence But Was Not Cost Neutral, 33 Health Aff. 300 (2014). For