neither insurers nor regulators are likely to be able to compensate for the
consumer’s lack of information at the time the policy is purchased, because
they cannot predict ex ante an individual’s future needs.
This brings us to the fifth and most significant reason why the
reasonable expectations doctrine may suit ACA plan coverage decisions.
Covered EHB in an ACA plan are necessarily determined ex post – when
the consumer becomes a patient and seeks insurance coverage for health
care. With inevitably vague EHB coverage terminology, decisions about
what medical services the insurer will pay for necessarily arise only when
the policyholder becomes a patient and seeks health care.94 At that point,
the insurer and the patient each may have different ideas – or expectations –
of what EHB coverage includes.
These different ideas cannot be attributed to the policyholder failing to
read the policy, or even misunderstanding its text.95 The difference is
invited by the vague description of EHB coverage in the policy.
Conventional contract interpretation rules cannot resolve the difference,
because they do not address this problem. They simply do not fit. The
rationale for enforcing the terms of a standard form contract that the
policyholder merely failed to read is inapplicable here.96 The terms
themselves could not specify what should be enforced. The principle that
hidden terms should not be enforced against the policyholder is similarly
inapplicable where specific terms are not hidden, because they are not
included in the contract at all.97 The rule against enforcing unconscionable
terms is similarly inapplicable.98 Most policing doctrines are not likely to
apply to disputes over EHB coverage. Unless the insurer has led the
policyholder to believe that a specific medical service would be covered,
94. There are, of course, important exceptions to this scenario. Some exclusions, such
as custodial care or experimental therapies, may be clearly set forth in the policy, while
others might be inferred from the text. Here, the focus is on the more common circumstance
in which the determination must be made solely on the basis of what counts as part of EHB.
95. See Wendy K. Mariner, Can Consumer-Choice Plans Satisfy Patients? Problems
with Theory and Practice in Health Insurance Contracts, 69 Brook. L. Rev. 485, 515–18
(2004) (arguing that different rules may apply to ex ante purchases and ex post treatment
decisions, because “consumers choose health plans, while patients choose medical care”).
96. See generally Robert A. Hillman & Jeffrey J. Rachlinski, Standard-Form
Contracting in the Electronic Age, 77 N. Y.U. L. Rev. 429 (2002); see generally W. David
Slawson, Standard Form Contracts and Democratic Control of Lawmaking Power, 84 Harv.
L. Rev. 529 (1971).
97. See Stempel, supra note 45, at 184–93 (describing judicial refusal to enforce
coverage exclusions hidden in unexpected places in the contract or couched in unusual
language, such that consumers would not necessarily notice them).
98. Keeton, supra note 44, at 963 (Keeton’s first principle forbids allowing insurers to
take advantage of unconscionable provisions.).