Without explicit, individualized content in the definition of EHB, the
language of the plan itself can offer no text, ambiguous or otherwise, on
which courts might pin their decisions. In the absence of specific ex ante
expectations about particular health services for a particular person,
coverage determinations cannot rely on the intent of the parties or their
Yet the purpose of ACA plans is clear. They should provide reasonably
necessary care at an affordable price. This two-part goal offers a framework
for a functional analysis of EHB – reasonable statutory expectations.
Decision-makers, both insurers and courts, would be well served by
beginning an analysis of EHB coverage that is consistent with the ACA’s
two-part goal. In so doing, decision-makers can apply well-established rules
of statutory construction, which necessarily apply to health plans that are
created and governed by federal law. Where such rules do not resolve
conflicting interpretations, decision-makers can look to what can be
reasonably expected of a comprehensive, but affordable, ACA plan.
This is a modest conclusion, one that does not pretend to solve all
controversies over ACA plans, much less other insurance policy
interpretations. It addresses only the interpretation of EHB in ACA plans
marketed to individuals and small groups. Thus, it does not challenge the
coverage exclusions permitted by the ACA, for example.166 Neither does
it address plans governed by the Employee Retirement Income Security Act
nor any public benefit programs such as Medicare or Medicaid. Moreover,
it may not affect ACA plans that include mandatory arbitration provisions,
although arbitrators could – and, I would argue, should – apply the same
principles in their proceedings.167 It could be used in both internal and
external review processes for claims determinations.
The proportion of the population currently enrolled in ACA plans is
small—less than five percent of eligible individuals.168 Nevertheless, the
symbolic value of ACA plans far exceeds the number of people they enroll.
And, barring a collapse of federal tax credits, that number may grow over
166. See, e.g., Natali L. Regoli, Insurance Roulette: The Experimental Treatment
Exclusion & Desperate Patients, 22 Quinnipiac L. Rev. 697 (2004).
167. See Susan Randall, Mandatory Arbitration in Insurance Disputes: Inverse
Preemption of the Federal Arbitration Act, 11 Conn. Ins. L.J. 253 (2004/2005); Richard C.
Reuben, Democracy and Dispute Resolution: The Problem of Arbitration, 67 Law &
Contemp. Prob. 279 (Winter/Spring 2004); Jeffrey W. Stempel, Forgetfulness, Fuzziness,
Functionality, Fairness, and Freedom in Dispute Resolution: Serving Dispute Resolution
Through Adjudication, 3 Nev. L. J. 305 (2002/2003).
168. DEP’T OF HEALTH & HUM. SERVS., ASPE ISSUE BRIEF HEALTH INSURANCE
MARKETPLACE: SUMMARY ENROLLMENT REPORT FOR THE INITIAL ANNUAL OPEN
ENROLLMENT PERIOD 1 (2014), available at http://aspe.hhs.gov/health/reports/