Moreover, to the extent that insurers and consumers gain experience with
the scope and limits of ACA plan coverage and affordability, regulatory
agencies should be able to develop more detailed rules or guidance for
specific types of EHB categories, as the Centers for Medicare and Medicaid
Services have done for Medicare benefits.163
It may not matter whether one characterizes this approach as a
reasonableness standard or as statutory interpretation.164 In the case of
ACA plans, they are two sides of the same coin.165 The approach might be
called reasonable statutory expectations. The reasonable expectations of the
parties cannot diverge significantly from Congressional intent, because all
parties are bound by the statutory framework. Moreover, the ACA itself
probably inspires its own expectations among insureds and insurers. Thus,
the rule of construction should ask what services a reasonable health plan
would cover to comply with the EHB requirements in light of ACA’s goal
of comprehensive and affordable coverage.
A functional approach to ACA plan interpretation could move us
farther down the path to a more “carefully calculated” picture of ACA plan
coverage. Since the ACA has altered the concept of insurance in the context
of health insurance, it stands to reason that insurance law applied to ACA
plans should adapt itself to the ends that the ACA seeks to achieve.
Traditional rules of construction for insurance policies do not easily fit the
individualized determinations of health services covered as part of EHB.
an analysis of health insurers responses to ACA requirements, see Michael J. McCue &
Mark Hall, Health Insurers’ Financial Performance and Quality Improvement Expenditures
in the Affordable Care Act’s Second Year, 72 Med. Care Res. & Rev. 113 (2015) (to meet
ACA requirements, insurers increased medical loss ratios, decreased median administrative
expenses and most increased quality of care expenditures in 2012). Although still too early
to predict, some uses of accountable care organizations may encourage more value for
money. See, e.g., Arnold M. Epstein, et al., Analysis of Early Accountable Care
Organizations Defines Patient, Structural, Cost, and Quality-Of-Care Characteristics, 33
Health Aff. 95 (2014).
163. Although Medicare uses private carriers to administer claims, which can result in
some variation in coverage determinations, it also issues National Coverage Determinations
to be applied nationally. See Dep’t of Health & Hum. Servs., Ctrs for Medicare & Medicaid
Servs., Medicare Coverage – General Information, CMS.GOV,
www.cms.gov/Medicare/Coverage/CoverageGenInfo/index.html (last visited Apr. 15, 2015).
State insurance regulators may also have discretion to make EHB content more concrete,
depending on their state statutory authority. See Stempel, Insurance Policy, supra note 128,
164. See Bailey H. Kuklin, The Plausibility of Legally Protecting Reasonable
Expectations, 32 Val. U. L. Rev. 19 (1997).
165. See Fischer, supra note 49, at 163–64 (noting that reasonableness standards import
public policy into private law).