1 Patient Protection & Affordable Care Act of 2010, Pub. L. No. 111-148, 124 Stat. 119 (codified as amended in scattered sections of 21, 25, 26, 29, 42 U.S.C.).

2 See generally PAUL STARR, REMEDY AND REACTION: THE PECULIAR AMERICAN STRUGGLE OVER HEALTH CARE REFORM 177 (2011).

3 See id. at 241-47.

4 See generally ROBERT CUNNINGHAM III & ROBERT CUNNINGHAM, JR., THE BLUES: A HISTORY OF THE BLUE CROSS AND BLUE SHIELD SYSTEM (1997).

5 ROBERT D. EILERS, REGULATION OF BLUE CROSS AND BLUE SHIELD PLANS 135-36 (1963). For an example of such licensure statutes, see Mass. Gen. Laws ch. 176A (2012 & Supp. 2013), 176C (2012).

6 See generally ALAIN C. ENTHOVEN, HEALTH PLAN: THE ONLY PRACTICAL SOLUTION TO THE SOARING COST OF MEDICAL CARE (1980); Jensen, Gail et al., The New Dominance of Managed Care: Insurance Trends in the 1990’s, 16 HEALTH AFF. 125 (1997)CrossRefGoogle Scholar; Gold, Marsha, Can Managed Care and Competition Control Medicare Costs?, W3 HEALTH AFF. 176 (2003)Google Scholar, http://content.healthaffairs.org/content/early/2003/04/02/hlthaff.w3.176.full.pdf?origin=publication_detail.

7 See generally Gabel, Jon et al., The Changing World of Group Health Insurance, 7 HEALTH AFF. 48 (1988)CrossRefGoogle ScholarPubMed; Gabel, Jon et al., Withering on the Vine: The Decline of Indemnity Health Insurance, 19 HEALTH AFF. 152 (2000)CrossRefGoogle ScholarPubMed; Mariner, Wendy K., Social Solidarity and Personal Responsibility in Health Reform, 14 CONN. INS. L.J. 199, 206-13 (2008)Google Scholar.

8 Mariner, Wendy K., Health Reform: What's Insurance Got to Do with It? Recognizing Health Insurance as a Separate Species of Insurance, 36 AM. J.L. MED. 436, 438 (2010)CrossRefGoogle Scholar; Nat’l Fed’n of Indep. Bus. (NFIB) v. Sebelius, 132 S. Ct. 2566, 2620 (2012) (Ginsburg, J., dissenting in the judgment in part and concurring in the judgment in part).

9 See generally Brief of 104 Health Law Professors as Amici Curiae in Support of Petitioners, NFIB v. Sebelius, 132 S. Ct. 2566 (2012), available at http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs/11-398_petitioneramcu104healthlawprofs.authcheckdam.pdf (written together with Mark Hall, the aut hor who organized and participated in drafting the brief (along with Abbe Gluck), the characteristics of which are described in Part II, infra.)

10 Id. at 16.

11 See id. at 5.

12 Mariner, supra note 8, at 443.

13 See Brief of 104 Health Law Professors, supra note 9, at 7-10.

14 CTRS. FOR MEDICARE & MEDICAID SERVS., U.S. DEP't OF HEALTH & HUMAN SERVS., NATIONAL HEALTH EXPENDITURES BY TYPE OF SERVICE AND SOURCE OF FUNDS, CY1960-2012, available at http://www.cms.gov/Research-Statistics-Data-and-Systems/Statistics-Trends-and-Reports/NationalHealthExpendData/NationalHealthAccountsHistorical.html (last modified Jan. 7, 2014).

15 U.S. CENSUS BUREAU, U.S. DEP't OF COMMERCE, STATISTICAL ABSTRACT OF THE UNITED STATES: 2012, 102 tbl.135 (2012), available at http://www.census.gov/compendia/statab/2012edition.html (select “Section 3: Health and Nutrition” from the menu).

16 Id. at 104.

17 Id. at 102.

18 Id.

19 U.S. CONST. amend. XIII.

20 NFIB v. Sebelius, 132 S. Ct. 2566, 2591 (2012) (Roberts, C.J.).

21 Id. See also Kenneth S. Abraham, Four Conceptions of Insurance, 161 U. PA. L. REV. 653, 671 (2013) (arguing that automobile insurance is second to health insurance in its importance to well - being, because “[i]n all but urban areas where there is adequate mass transit, driving is an essential feature of daily life”).

22 NFIB, 132 S. Ct. at 2610 (Ginsburg, J., dissenting in the judgment in part and concurring in the judgement in part).

23 Nat’l Ctr. for Health Statistics, Summary Health Statistics for U.S. Adults: National Health Interview Survey, 2009, 10 VITAL & HEALTH STAT. 1, 124 (2010)Google Scholar, available at http://www.cdc.gov/nchs/data/series/sr_10/sr10_249.pdf.

24 Id.

25 Id. at 6.

26 Hartman, Micah et al., National Health Spending in 2011: Overall Growth Remains Low, but Some Players and Services Show Signs of Acceleration, 32 HEALTH AFF. 87, 88 exh. 1 (2013)CrossRefGoogle Scholar.

27 T. SCOTT BENTLEY & STEVEN G. HANSON, 2011 U.S. ORGAN AND TISSUE TRANSPLANT COST ESTIMATES AND DISCUSSION 3 tbl.1 (2011), available at http://www.publications.milliman.com/research/health-rr/pdfs/2011-us-organ-tissue.pdf.

28 Zhao, Zhenxiang & Winget, Melissa, Economic Burden of Illness of Acute Coronary Syndromes: Medical and Productivity Costs, 11 BMC HEALTH SERVICES RES. 1, 3 (2011).CrossRefGoogle ScholarPubMed

29 U.S. CENSUS BUREAU, U.S. DEP't OF COMMERCE, INCOME, POVERTY, AND HEALTH INSURANCE COVERAGE IN THE UNITED STATES: 2010 453 tbl.692 (2011), available at http://www.census.gov/prod/2011pubs/p60-239.pdf.

30 Id. at 6 tbl.1.

31 Newhouse, Joseph P. et al., Risk Adjustment and Medicare: Taking a Closer Look, 16 HEALTH AFF. 26, 32-33 (1997)CrossRefGoogle ScholarPubMed.

32 STARR, supra note 2, at 7-10.

33 PAUL SLOVIC, THE FEELING OF RISK: NEW PERSPECTIVES ON RISK PERCEPTION 73 (2010); Jenni, Karen E. & Loewenstein, George, Explaining the “Identifiable Victim Effect”, 14 J. RISK & UNCERTAINTY 235, 237 (1997)CrossRefGoogle Scholar.

34 Code of Medical Ethics § 8.11 Neglect of Patients (Am. Med. Ass’n 1996), available at http://www.ama-assn.org//ama/pub/physician-resources/medical-ethics/code-medicalethics/opinion811.page.

35 See generally Wilmington Gen. Hosp. v. Manlove, 174 A.2d 135 (Del. 1961); Emergency Medical Treatment & Active Labor Act (EMTALA), 42 U.S.C. § 1395dd (2012).

36 See, e.g., Stonehenge Eng’g Corp. v. Emp’rs Ins. of Wausau, 201 F.3d 296, 301-02 (4th Cir. 2000); SCA Serv. Inc., v. Transp. Ins. Co., 646 N.E.2d 394, 397 (Mass. 1995); STEVEN PLITT ET AL., COUCH ON INSURANCE §§ 102.8-102.9 (3d ed. 2009); JEFFREY W. STEMPEL, STEMPEL ON INSURANCE CONTRACTS 27 (3d ed. 2006).

37 Mariner, supra note 7, at 209.

38 Id.

39 Id.

40 See MICHAEL MORRISEY, HEALTH INSURANCE 276 (2007) (noting growth in mandates since the 1970s); Power, Mark & Ralson, August, State Mandated Group Health Insurance Coverages, 5 BENEFITS Q. 1, 1-10 (1989)Google Scholar (“The number of state health benefit mandates [has] increased dramatically over the past two decades … The number of mandates enacted increased from zero in 1965 to approximately 200 by 1975 and then tripled to 604 through 1986 … [L]egislative interest in state mandated health insurance coverages remains high.”).

41 See, e.g., Health Insurance Portability and Accountability Act (HIPAA), 29 U.S.C § 1182 (2012).

42 42 U.S.C. §§ 300gg-1-13 (2012).

43 See NFIB v. Sebelius, 132 S. Ct. 2566, 2591 (2012) (“The Government argues that the individual mandate can be sustained … because health insurance is a unique product.”).

44 DAVID GOLDHILL, CATASTROPHIC CARE 30 (2013).

45 See INST. OF MED., AMERICA's UNINSURED CRISIS: CONSEQUENCES FOR HEALTH AND HEALTH CARE 49 (2009), available at http://www.nap.edu/catalog.php?record_id=12511 (“For people without health insurance, there is a chasm between health care needs and access to needed services despite the availability of some safety net services. With health insurance, children are more likely to gain access to a medical home, well-child care and immunizations, prescription medications, appropriate care for asthma, and basic dental services. They are also more likely to have fewer avoidable hospitalizations, improved asthma outcomes, and fewer missed days of school. Uninsured adults face serious and sometime [sic] grave risk to their health. Without health insurance, adults have less access to effective clinical services including preventive care and, if sick or injured, are more likely to suffer poorer health outcomes, greater limitations in quality of life, and premature death. When adults gain health insurance, they experience improved access to effective clinical services and better health outcomes.”).

46 STARR, supra note 2, at 241. Care for “all,” of course, remains something of an overstatement, since twenty-three states, as of this writing, have declined to participate in the Medicaid expansion. Moreover, the ACA does not require undocumented aliens to have insurance coverage. KAISER FAMILY FOUND., THE IMPACT OF THE COVERAGE GAP IN STATES NOT EXPANDING MEDICAID BY RACE AND ETHNICITY 2 (2013), available at http://kaiserfamilyfoundation.files.wordpress.com/2013/12/8527-the-impact-of-the-coverage-gap-instates-not-expanding-medicaid.pdf.

47 See STARR, supra note 2, at 240-41.

48 See generally JACOB S. HACKER, THE DIVIDED WELFARE STATE: THE BATTLE OVER PUBLIC AND PRIVATE SOCIAL BENEFITS IN THE UNITED STATES 3 (2002).

49 Rashi Fein, Advancing a Single-Payer System of Social Insurance, in SOCIAL WELFARE POLICY AT THE CROSSROADS: RETHINKING THE ROLES OF SOCIAL INSURANCE, TAX EXPENDITURES, MANDATES, AND MEANS-TESTING 87, 87 (Robert B. Frieland et al. eds., 1994).

50 See ROY LUBOVE, THE STRUGGLE FOR SOCIAL SECURITY 3 (1970) (“Social insurance was proposed as an alternative to the existing, but inefficient, system of economic assistance. Operating independently of the poor laws, it would respond predictably and adequately in the event of an individual's exposure to the long- and short-term risks which interrupted income flow: accident, sickness and maternity, old age and invalidity, unemployment, or death resulting in impoverished dependency.”).

51 TOM BAKER, EMBRACING RISK 27 (Tom Baker & Jonathan Simon eds., 2002); Stone, Deborah, Beyond Moral Hazard: Insurance as Moral Opportunity, 6 CONN. INS. L.J. 11, 46 (1999)Google Scholar.

52 RICHARD V. ERICSON ET AL., INSURANCE AS GOVERNANCE 10 (2003).

53 Stempel, Jeffrey W., The Insurance Policy as Social Instrument and Social Institution, 51 WM. & MARY L. REV. 1489, 1495 (2010)Google Scholar.

54 See MICHAEL J. GRAETZ & JERRY L. MASHAW, TRUE SECURITY: RETHINKING AMERICAN SOCIAL INSURANCE 167-71 (1999).

55 See NFIB v. Sebelius, 132 S. Ct. 2566, 2608 (2012).

56 Aaron, Henry J., Mandated Benefits with a Social Insurance Option, in SOCIAL WELFARE POLICY AT THE CROSSROADS 87, 87 (Frieland, Robert B. et al. eds., 1994)Google Scholar.

57 Compania Gen. De Tabacos De Filipinas v. Collector of Internal Revenue, 275 U.S. 87, 100 (1927) (Holmes, J., dissenting).

58 Abraham, supra note 21, at 657.

59 Id. at 658. A key focus of the contract conception is the degree to which the contract's text governs the specific losses for which the insurer will pay, as well as the rules for interpreting that text.

60 Id. at 674-75. For a discussion of the product conception, see generally Stempel, Jeffrey W., The Insurance Policy as Thing, 44 TORT TRIAL & INS. PRAC. L.J. 813 (2009)Google Scholar; Schwarcz, Daniel, A Products Liability Theory for the Judicial Regulation of Insurance Policies, 48 WM. & MARY L. REV. 1389 (2007)Google Scholar.

61 Abraham, supra note 21, at 668.

62 ERICSON ET AL., supra note 52, at 53; see also Stempel, supra note 53, at 1495.

63 Abraham, supra note 21, at 683-84.

64 Id. at 670. Given the redistribution of former monopolies, such as telephone services, into competing private companies, the traditional public utility model that Abraham describes applies to a narrower set of industries today. Companies offering competing landline and mobile telephone, cable, or wireless internet services, for example, might offer a modified model of public utilities, with somewhat less regulation, especially with respect to pricing, than traditional public ut ilities.

65 Id. at 672.

66 Id. at 658, 674-75.

67 See discussion infra Part IV.B.2.

68 See, e.g., TIMOTHY JOST, NAT’L ACAD. OF SOC. INS., THE REGULATION OF PRIVATE HEALTH INSURANCE 29-31 (2009), available at http://www.nasi.org/usr_doc/The_Regulation_of_Private_Health_Insurance.pdf (describing the increased frequency of regulatory interventions needed to address market failures in U.S. private health insurance that do not appear in a single payer system).

69 42 U.S.C. § 18022(d)(2) (2012).

70 Id. § 18062(a).

71 Id. §§ 18022(c)(4), 18063. Beyond qualified plans, insurance regulators remain responsible for catastrophic plans, id. § 18022(e), child-only plans, id. § 18022(f), separate plans for dental and mental health services, grandfathered plans sold to large employers and other non-qualified plans.

72 Id. § 300gg-15.

73 Id. § 300gg-17.

74 Id. § 300gg-94(c).

75 See KENNETH S. ABRAHAM, INSURANCE LAW AND REGULATION 142 (5th ed. 2010) (describing the variation in resources available to insurance commissioners in different states).

76 See id. at 142 (emphasizing the constrained budgets and staffing conditions in insurance departments).

77 42 U.S.C. § 18021. To see how complicated this might become, consider the Final Rules under the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008. See generally External Review for Multi-State Plan Program, 78 Fed. Reg. 68,240 (Nov. 13, 2013) (to be codified in scattered sections of 26 and 45 C.F.R.). Health insurers have typically carved out mental health benefits and subcontracted with a separate insurer or organization that made coverage (and medical necessity) determinations largely independently, or at least their criteria were not necessarily applied in the same way as how the primary insurer applied its own coverage criteria for medical care. Primary insurers may have to do some complex mapping of coverage, deductibles, co-pays, participating providers, and numbers of visits to establish parity. Insurance commissioners may have to review and approve such parity estimates.

78 Providers are aware of the external pressure to keep their prices low, but are consolidating in order to gain bargaining power. Most estimates say that consolidation typically yields a three percent increase in prices. Health Care Industry Consolidation: Hearing Before the Comm. on Ways & Means Subcomm. on Health, 112th Cong. 13-18 (2011) (statement of Martin Gaynor, E.J. Baron Professor of Economics and Health Policy, Heinz College, Carnegie Mellon University) (noting that in different geographic markets, hospital mergers have been shown to increase prices by anywhere from five percent to over fifty percent).

79 For a thoughtful study of the information consumers need to choose insurance plans, see Johnson, Erik J. et al., Can Consumers Make Affordable Care Affordable? The Value of Choice Architecture, 8 PLOS ONE 1 (2013).CrossRefGoogle ScholarPubMed

80 Most insurers keep their provider payment systems proprietary. Even government employers often sign nondisclosure agreements if they receive information from insurers as well as third party administrators and management consultants; were it not for these nondisclosure agreements, provider payment data could be subject to FOIA requests.

81 Steven Brill, Why Medical Bills Are Killing Us, TIME, Feb. 20, 2013, at 1, 16-55.

82 Medicare's governing legislation requires CMS to set physician payment rates annually. Social Security Act §1848(d). The statutory formula for Sustainable Growth Rates (SGR) has required reductions in payment rates since 2002, but Congress has postponed enforcement of those reductions annually. Were the cumulative reductions to take effect in 2014, Medicare payments to physicians would decline by about twenty-four percent. Letter from Jonathan D. Blum, Principal Deputy Administrator, Ctrs. For Medicare & Medicaid Servs., to Glenn M. Hackbarth, Chair, Medicare Payment Advisory Comm’n (Mar. 11, 2014), available at http://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/SustainableGRatesConFact/downloads/medpacfinal.pdf; Sustainable Growth Rates and Conversion Factors, CTRS. FOR MEDICARE & MEDICAID SERVS. (last modified Apr. 15, 2014), http://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/SustainableGRatesConFact/index.html?redirect=/sustainablegratesconfact/01_overview.asp. Some of the estimated federal savings expected from ACA reforms were based on the assumption that Medicare would reduce its costs by implementing the SGR. Recently, legislators began to consider whether to replace the fee for service physician payment structure with methods that reward quality and cost saving, like the bundled payments used for hospital services or global payments for accountable care organizations. Wilenksy, Gail R., Improving Value in Medicare with an SGR Fix, 370 NEW ENGL. J. MED. 1 (2014)Google Scholar. For Medicare programs, see Innovation Models, CTRS. FOR MEDICARE & MEDICAID SERVS., http://innovation.cms.gov/initiatives/index.html#views=models (last visited May 8,2014). Agreements between CMS and provider ACOs under the Medicare Shared Savings Program allow the provider organization to share savings (reductions in the amount of Medicare payments to the ACO from payment amounts in an earlier benchmark period) without subjecting ACOs to risk for financial losses from providing care. Patient Protection & Affordable Care Act § 3022, 42 U.S.C. § 1395jjj (2012). Regulations and Guidance on the Medicare Shared Savings Program may be found at http://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/sharedsavingsprogram/Statutes_Regulations_Guidance.html. CMS may consider adding shared risk in its new Innovation Program; see 42 U.S.C. § 1315a. CMS issued a Request for Information seeking suggestions by March 1, 2014, for new ACO models that encourage greater care integration and financial accountability. CTRS. FOR MEDICARE & MEDICAID SERVS., CTR. FOR MEDICARE & MEDICAID INNOVATION, REQUEST FOR INFORMATION: EVOLUTION OF ACO INITIATIVES AT CMS 1 (2014), available at http://innovation.cms.gov/Files/x/Pioneer-RFI.pdf.

83 For a discussion of earlier experiences with regulating risk-bearing providers, see Overbay, Allison & Hall, Mark A., Insurance Regulation of Providers that Bear Risk, 22 AM. J.L. & MED. 361 passim (1996)Google ScholarPubMed.

84 For one state's proposal to impose tiered levels of financial requirements on providers who accept varying levels of risk, see 1251 Mass. Reg. 20 (Jan. 3, 2014).

85 42 U.S.C. § 18022 (2012). See Part IV.B.1, infra.

86 See generally DANIEL CALLAHAN, WHAT KIND OF LIFE: THE LIMITS OF MEDICAL PROGRESS (1990); NORMAN DANIELS, JUST HEALTH CARE (1985); VICTOR R. FUCHS, WHO SHALL LIVE? HEALTH, ECONOMICS, AND SOCIAL CHOICE (1974); EDMOND D. PELLIGRINO & DAVID C. THOMASMA, FOR THE PATIENT's GOOD: THE RESTORATION OF BENEFICENCE IN HEALTH CARE (1988).

87 See CALLAHAN, supra note 86, at 18-20.

88 See DANIELS, supra note 86, at 2-5.

89 Mariner, Wendy K., Standards of Care and Standard Form Contracts: Distinguishing Patient Rights and Consumer Rights in Managed Care, 15 J. CONTEMP. HEALTH L. & POL’Y 1, 12-18 (1998)Google ScholarPubMed.

90 42 U.S.C. §§ 18021-18022 (2012).

91 Id. § 18022(b)(1).

92 Id. § 18022(b)(4).

93 Not surprisingly, the Secretary avoided listing specific benefits, instead issuing a rule granting the states the opportunity to decide what benefits plans will cover in their states. Essential Health Benefits, Actuarial Value, and Accreditation, 78 Fed. Reg. 12,833-12,872 (Feb. 25, 2013) (to be codified at 45 C.F.R. pts. 147, 155-56). A state may choose one of several existing health plans sold to small employers in that state (called a “benchmark plan”), and the benefits covered by that plan will be deemed to qualify as EHB. The benchmark plan, however, must be supplemented if it fails to cover any of the 10 required categories. Id.

94 See id. While ACA states that Essential Health Benefits should be similar in scope to the benefits covered by a “typical employer plan,” it does not dist inguish between large employer plans and small employer plans. Small employer plans typically offer fewer benefits and more limited coverage of those benefits than large employer plans in order to keep premiums affordable. Thus, a typical small employer plan usually has a lower actuarial value than a large employer plan. To counter rising premiums, companies have increased the amounts that employees pay for health plans—both the employee's share of premiums and deductibles and co-payments for receiving care. See Blakely, Steven, Employers, Workers, and the Future of Employment -Based Health Benefits, 330 EMP. BENEFIT RES. INST. 4 (2010)Google Scholar. The ACA, however, limits out-of-pocket co-payments. 42 U.S.C. § 18022(c)(2). Moreover, a small employer may have few affordable choices, so its plan may not cover the benefits that employees prefer. However, since the majority of people who will be entering the market are individuals and employees of small businesses, it may make sense to use a small employer plan as a benchmark.

95 See, e.g., Additional Information on Proposed State Essential Health Benefits Benchmark Plans, CTRS. FOR MEDICARE & MEDICAID SERVS., http://www.cms.gov/CCIIO/Resources/Data-Resources/ehb.html (last visited Apr. 9, 2014); Michelle Lilienfeld, Overview of HHS’ Proposed Rule on Benefits for the Medicaid Expansion Population: A Step Guide for Advocates, NAT’L HEALTH LAW PROGRAM (Apr. 1, 2013), http://www.healthlaw.org/issues/medicaid/health-reform-andmedicaid/overview-of-hhs-proposed-rule-on-benefits-for-the-medicaid-expansion-population-a-steguideffor-advocates#.UymmYqDIpLE (discussing Medicaid Alternative Benefit Plans, which starting in 2014 are required to either meet all ten EHB benefit categories or be supplemented to make them comparable to a relevant EHB-based benchmark plan).

96 See Amanda Cassidy, Essential Health Benefits, HEALTH AFF., HEALTH POL’Y BRIEF 1-2 (May 2, 2013),. http://healthaffairs.org/healthpolicybriefs/brief_pdfs/healthpolicybrief_91.pdf (noting the historical absence of a uniform national standard for health insurance benefits and discussing the vast differences in coverage among plans before the Affordable Care Act required coverage of essential health benefits).

97 See Daniels, Normal, Why Saying No to Patients In The United States Is So Hard – Cost Containment, Justice and Provider Autonomy, 314 NEW ENG. J. MED. 1380, 1383 (1986)CrossRefGoogle ScholarPubMed (noting that patients are distrustful of health care schemes that make a profit through denial of care); Mariner, Wendy K., Rationing Health Care and the Need for Credible Scarcity, 85 AM. J. PUB. HEALTH 1439, 1442 (1995)CrossRefGoogle ScholarPubMed (“[Patients] may fear they are being denied care so that the money can be used to profit the organization.”).

98 See Barbara S. Klees et al., BRIEF SUMMARIES OF MEDICARE AND MEDICAID, CTRS. FOR MEDICARE & MEDICAID SERVS. 22 (2012), available at https://www.cms.gov/Research-Statistics-Data-and-Systems/Statistics-Trends-and-Reports/MedicareProgramRatesStats/Downloads/MedicareMedicaidSummaries2012.pdf (stating that federal authority to administer the Medicare and Medicaid systems has been delegated to, at various times, the Department of Health and Human Services, the Social Security Administration, the Social and Rehabilitation Service, and the Centers for Medicare & Medicaid Services).

99 See id. at 18 (organizations and agencies acting on behalf of the federal government apply Medicare coverage rules to determine appropriate payments); Rulings, CTRS. FOR MEDICARE & MEDICAID SERVS., http://www.cms.gov/Regulations-and-Guidance/Guidance/Rulings/index.html (last modified Feb. 27, 2012, 2:24 PM).

100 See Kathleen M. King & James Cosgrove, Medicare: Contractors and Private Plans Play a Major Role in Administering Benefits, GOV’T. ACCOUNTABILITY OFFICE 2-3 (Mar. 4, 2014), available at http://www.gao.gov/assets/670/661317.pdf (providing overview of how CMS contracts with Medicare Administrative Contractors and private organizations to provide various services); Klees et al., supra note 98, at 18 (discussing the role of contractors in determining which services are covered).

101 See 42 C.F.R. § 405.920 (2013); Klees et al., supra note 98, at 18 (discussing fiscal intermediaries, which are organizations or agencies that contract with the federal government to process Medicare claims).

102 See King & Cosgrove, supra note 100, at 2 (explaining that the Medicare fee-for-service program “was designed so that the federal government contracted with health insurers or similar private organizations experienced in handling physician and hospital claims to process and pay Medicare claims rather than having the federal government do so”).

103 42 C.F.R. § 405.904.

104 See Klees et al., supra note 98, at 22 (“Within broad national guidelines established by Federal statutes, regulations, and policies, each State establishes its own eligibility standards; determines the type, amount, duration, and scope of services; sets the rate of payment for services; and administers its own program.”).

105 Medicaid Administrative Claiming, MEDICAID.GOV, http://www.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/Financing-and-Reimbursement/Medicaid-Administrative-Claiming.html (last visited Apr. 9, 2014).

106 See id.; Klees et al., supra note 98, at 29; Managed Care, MEDICAID.GOV, http://www.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/Delivery-Systems/Managed-Care/Managed-Care.html (last visited Mar. 25, 2014) (discussing trends in Medicaid, noting the growth of State-designed Medicaid managed care programs); Financing & Reimbursement, MEDICAID.GOV, http://www.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/Financing-and-Reimbursement/Financing-and-Reimbursement.html (last visited Mar. 25, 2014) (noting that approximately seventy percent of Medicaid enrollees get care through a managed care delivery system).

107 42 C.F.R. § 405.920.

108 Id. § 405.908.

109 See, e.g., Loyola Univ. of Chi. v. Humana Ins. Co., 996 F.2d 895, 897-901 (7th Cir. 1993) (analyzing whether a transplant was covered where the contract excludes procedures that do not meet the criteria for “medical necessity” and procedures that are “experimental “ for the condition).

110 The classic analysis of contracts of adhesion is found in Kessler, Friedrich, Contracts of Adhesion—Some Thoughts about Freedom of Contract, 43 COLUM. L. REV. 629 passim (1943)CrossRefGoogle Scholar.

111 See ROBERT E. KEETON & ALAN I. WIDISS, INSURANCE LAW § 6.3(a) (1988).

112 Id.

113 See, e.g., U.S. Airways, Inc. v. McCutchen, 133 S. Ct. 1537 (2013).

114 See, e.g., Bjornstad v. Senior Am. Life Ins. Co., 599 F. Supp. 2d 1165, 1174 (D. Ariz. 2009) (allowing plaintiffs to bring a claim of bad faith against administrator of home health care insurance policy for offering conflicting bases for denying coverage of services rendered after patient's health condition required transfer out of the home and into a nursing facility); McEvoy v. Grp. Health Co- Op, 570 N.W.2d 397 (Wis. 1997).

115 42 U.S.C. § 300gg-19(a) (2012).

116 See, e.g., Love v. Fire Ins. Exch., 271 Cal. Rptr. 246 (App. Ct. 1990).

117 See, e.g., Engalla v. Permanente Med. Group, 938 P.2d 903 (Cal. 1997).

118 See, e.g., Aetna v. Davila, 542 U.S. 200 (2004); Pegram v. Herdrich, 530 U.S. 211 (2000).

119 29 U.S.C. § 1132(a) (2012).

120 Davila, 542 U.S. at 221.

121 Right to Health Insurance Appeals Process, NAT’L CONFERENCE OF STATE LEGISLATURES, http://www.ncsl.org/research/health/right-to-health-insurance-appeals-in-aca.aspx (last updated March 2013).

122 See Rush Prudential HMO, Inc. v. Moran, 536 U.S. 355, 366 (2002).

123 42 U.S.C. § 300gg-19(b) (Supp. 2011); Internal Claims, Appeals & External Review Processes, 76 Fed. Reg. 37,207-37,234 (June 24, 2011) (to be codified in scattered sections of 26, 29, 45 C.F.R.); Plan Management: Regulations, CTRS. FOR MEDICARE & MEDICAID SERVS., www.cms.gov/cciio/resources/Regulations-and-Guidance/index.html#Plan%20Management (last visited March 14, 2014).

124 Internal Claims, Appeals & External Review Processes, 76 Fed. Reg. at 37,207-37,234.

125 See generally CHRISTOPHER NEWDICK, WHO SHOULD WE TREAT? LAW, PATIENTS AND RESOURCES IN THE N.H.S. (1995); Annas, George J., Rationing Medical Care, in STANDARD OF CARE: THE LAW OF AMERICAN BIOETHICS 211, 211-217 (1993)Google Scholar.

126 Different insurers may decide to pay for different treatments for the same condition, based on treatment cost, quality or other factors, such as uncertainty concerning the effectiveness of alternatives. For example, attention deficit hyperactivity disorder (ADHD) could be treated with pharmaceutical drugs (Ritalin, Adderall) alone, which appear to be the least costly, with behavioral therapy, which is more expensive, or with a combination of the two. Alan Schwarz, A.D.H.D. Experts Re-evaluate Study's Zeal for Drugs, N.Y. TIMES (Dec. 29, 2013), www.nytimes.com/2013/12/30/health/adhd-experts-re-evaluate-studys-zeal-for-drugs.html?src=recg.

127 See Sage, William M., Judicial Opinions Involving Health Insurance Coverage: Trompe L'Oeil or Window on the World?, 31 IND. L. REV. 49, 50-51 (1998)Google Scholar.

128 See generally Mariner, Wendy K., The Affordable Care Act and Health Promotion: The Role of Insurance in Defining Responsibility for Health Risks and Costs, 50 DUQ. L. REV. 271 (2012)Google Scholar.

129 Mariner, supra note 8, at 441.

130 Brill, supra note 81, at 16-17.

131 See, e.g., Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 1563, 124 Stat. 119 (2010) (codified as amended at 43 U.S.C. § 18001 (2006)) (Senate finding that “this Act will reduce the Federal deficit between 2010 and 2019”); President Ba rack Obama, Remarks by the President in State of the Union Address, WHITE HOUSE OFF. PRESS SECRETARY (Jan. 27, 2010), http://www.whitehouse.gov/the-press-office/remarks-president-state-union-address; Furrow, Barry R., Cost Control and the Affordable Care Act: Cramping Our Health Care Appetite, 3 NEV. L.J. 822, 825 (2013)Google Scholar; Mariner, supra note 128, at 272.

132 Furrow, supra note 131, at 845-47 (noting provisions of the ACA that aim to directly or indirectly affect the cost of healthcare, including health insurance exchanges, taxes on high-cost insurance plans, reducing administrative costs, researching comparative effectiveness, promoting prevention and wellness, licensing follow-on biologics, strengthening primary care, establishing quality measures and priorities, promoting high-value care, establishing a center for innovation, enhancing program integrity, reducing avoidable hospital readmissions, promoting accountable care organizations, and facilitating payment bundling).

133 JOHN E. MCDONOUGH, INSIDE NATIONAL HEALTH REFORM 42 (2011).

134 Massachusetts, which has six years of experience with the model for the ACA, recognized the need for cost control early on, but enacted payment reform only in 2012. An Act Improving the Quality of Health Care and Reducing Cost through Increased Transparency, Efficiency, and Innovation, 2012 Mass. Acts ch. 224. Although Massachusetts will not directly control pricing or costs—and cannot control federal payers—the state will set targets for average total per person medical spending growth and require organizations that exceed the targets to submit plans for cost - saving measures. Id.

135 Neumann, Peter J. & Chambers, James D., Medicare's Enduring Struggle to Define “Reasonable and Necessary” Care, 367 NEW ENG. J. MED. 1775, 1777 (2012)CrossRefGoogle ScholarPubMed.

136 CTRS. FOR MEDICARE & MEDICAID SERVS., ESSENTIAL HEALTH BENEFITS BULLETIN 3 (2011), available at https://www.cms.gov/CCIIO/Resources/Files/Downloads/essential_health_benefits_bulletin.pdf.

137 42 U.S.C. § 18022(c) (2012). It also prohibits lifetime and annual limits on claims payouts, which limit the risk that the insurer accepts, but are not true methods of cost -shifting. Id. § 300gg-11.

138 Id. §§ 300gg-17-18.

139 See generally WENDELL POTTER, DEADLY SPIN: AN INSURANCE COMPANY INSIDER SPEAKS OUT ON HOW CORPORATE PR IS KILLING HEALTH CARE AND DECEIVING AMERICANS (1st ed. 2010).

140 GOLDHILL, supra note 44, at 188.

141 See supra notes 78-84 and accompanying text.

142 See supra note 82.

143 See generally MARC A. RODWIN, MEDICINE, MONEY & MORALS (1st ed. 1993); Hall, Mark A. et al., Judicial Protection of Managed Care Consumers: An Empirical Study of Insurance Coverage Disputes, 26 SETON HALL L. REV. 1055, 1055-68 (1996)Google ScholarPubMed.

144 This quasi-social insurance conception of health insurance under the ACA differs from Western European social insurance schemes in its reliance on both public and private programs. Mariner, supra note 8, at 438 (arguing that American health insurance is a separate species of insurance); id. at 449 (comparing the role of private insurers in the US and Western European health insurance systems).

145 Abraham, supra note 21, at 698 (“[T]he particular lens through which we view insurance law cannot tell us what principles should govern or what policy choices to make.”).