ACA sets minimum standards for covered services” 19 and that, in determining compensation for claimants beyond the MOOPL, life care planners, experts who estimate claimants’ future health care needs, can consider which
services “would normally be covered by the minimum insurance requirements mandated by the ACA . . . .” 20 As the following sections demonstrate,
however, these assumptions are unsound because the ACA does not create a
clearly-defined package of health care services that all health plans are required to provide. 21
A. Shifting Standards for What Must Be Covered
The truth is that the essential benefits that the ACA requires health plans
to cover are extremely vague and unstable. 22 The ACA describes them only
in very general terms (such as “hospitalization” and “pediatric services”), 23
and leaves it up to the states to fill in the details. 24 Claimants may switch
19. Id. at 155.
20. Id. at 157; see also Mark S. Yagerman & Max Bookman, How Obamacare May Limit
Projected Expenses in Personal Injury Life Care Plans (unpublished manuscript), available at
https://cardozo.yu.edu/sites/default/files/YagermanBookan.HowObamacareMayLimitPro-jectedExpensesInPersonalInjuryLifeCarePlans.pdf (“Under the ACA, all plans will be required to meet a certain minimum coverage standard. Therefore, while it is true that there will
be future variations above and beyond that minimum standard, it is also true that notwithstanding any such variation, all plans policies will maintain a certain required baseline. As such, at
the very least, defendants will argue that the jury should be permitted to consider an attack on
a life care plan that fails to take into account the fact that no matter what health care coverage
a plaintiff may obtain in the future, any such coverage must meet the ACA’s minimum requirements.”).
21. Timothy Jost, Implementing Health Reform: ‘Minimum Value’ Plans Must Have Hospital and Physician Coverage, HEALTH AFF. BLOG (Nov. 4, 2014, 2: 13 PM), http://
22. Nicholas Bagley & Helen Levy, Essential Health Benefits and the Affordable Care
Act: Law and Process, 39 J. HEALTH POL., POL’Y, & L. 441, 448 (2014) (stating that the states
have “no additional guidance or regulations on essential health benefits” leaving leaders to
make decisions based on “vague guidance and guesswork”).
23. See 42 U.S. C. A. § 18022 (2015) (“[The ACA states: “. . . T]he Secretary shall define
the essential health benefits, except that such benefits shall include at least the following general categories and the items and services covered within the categories: ( A) Ambulatory patient services. ( B) Emergency services. ( C) Hospitalization. ( D) Maternity and newborn care.
(E) Mental health and substance use disorder services, including behavioral health treatment.
(F) Prescription drugs. (G) Rehabilitative and habilitative services and devices. (H) Laboratory
services. (I) Preventive and wellness services and chronic disease management. (J) Pediatric
services, including oral and vision care.”).
24. See Amanda Cassidy, Health Policy Brief: Essential Health Benefits, HEALTH AFF. 1
(May 2, 2013), available at http://healthaffairs.org/healthpolicybriefs/brief_pdfs/
healthpolicybrief_ 91.pdf (“[R]ather than establishing a national standard for these benefits,
the Department of Health and Human Services (HHS) decided to allow each state to choose
from a set of plans to serve as the benchmark plan in their state. Whatever benefits that plan
covers in the 10 categories will be deemed the essential benefits for plans in the state.”). A
number of Democratic lawmakers, consumer groups, and providers have criticized this approach on the ground that the benefits could be inadequate. Id. at 3.