proposal, claimants in theory are entitled to recover all of these out-of-pocket
costs, but as noted in the previous section, it is impossible to predict what
they will be. There is no way to determine in advance what services will be
available within which plan networks, or how much claimants will have to
pay out-of-pocket to obtain care outside the network.
B. Unpredictable Coverage for Future Care
Another reason the proposal is unworkable is that, as noted earlier, it is
impossible to predict what health care claimants’ plans will cover. During the
time they will require care for tort-related injuries, claimants’ circumstances
are likely to change, resulting in changes in their health coverage. 74 People
can be expected to purchase different amounts of coverage, for example, de-
pending on whether they are young and healthy, marry, divorce, become
pregnant, have children, age, or become ill or develop chronic medical con-
ditions. 75 In addition, claimants may switch plans when they or a partner
changes jobs or upon the death of a partner under whose plan they were in-
sured. 76 Each plan will cover different services, and plans can alter what they
cover over time. 77 Moreover, even if the care that a claimant needs is a man-
datory benefit in one state, the claimant may move to a different state with
different coverage requirements. 78 Since there is no way to know what cov-
erage claimants will have under different plans, this makes predicting their
out-of-pocket costs even more difficult.
Regardless of state benefit requirements, individual plans have broad discretion to limit what they cover: for example, limiting the annual number of
patient visits to certain types of providers. 79 In addition, as noted earlier, the
74. Peter J. Cunningham & Linda Kohn, Health Plan Switching: Choice or Circumstance?, 19 HEALTH AFF. 158, 159 (2000) (discussing the most common reasons people
change their health coverage).
75. Id. at 159-60.
76. Id. at 160.
77. See What Marketplace Plans Cover, HEALTHCARE.GOV, https://www.healthcare.gov/
coverage/what-marketplace-plans-cover/ (last visited Nov. 10, 2015) (explaining that even
within the same state, there can be differences in the health plans’ covered services and procedures).
78. Id. (explaining that “some states require insurers to cover additional services and procedures.”).
79. See Frequently Asked Questions on Essential Health Benefits Bulletin CTRS. FOR
MEDICARE & MEDICAID SERVS. (Dec. 16, 2011), https://www.cms.gov/cciio/resources/
files/downloads/ehb-faq-508.pdf (“Under the approach described in the Bulletin, a plan could
substitute coverage of services within each of the ten statutory categories, so long as substitutions were actuarially equivalent, based on standards set forth in CHIP regulations at 42 CFR
457.431, and provided that substitutions would not violate other statutory provisions. For example, a plan could offer coverage consistent with a benchmark plan offering up to 20 covered
physical therapy visits and 10 covered occupational therapy visits by replacing them with up
to 10 covered physical therapy visits and up to 20 covered occupational therapy visits, assuming actuarial equivalence and the other criteria are met. Q: Can scope and duration limits be