American Journal of Law & Medicine

What Is the Meaning of Health? Constitutional Implications of Defining "Medical Necessity" and "Essential Health Benefits" under the Affordable Care Act


When the government decides to assume a major role in providing and paying for healthcare, the government also has to decide exactly what constitutes appropriate, reasonable, or essential healthcare under its program. Congress, of course, recognized this necessity when it passed the Patient Protection and Affordable Care Act (ACA), and the statute itself provides authority to the Secretary of Health and Human Services (HHS) to determine the "essential health benefits" that must be covered under the ACA beginning in 2014, both by insurers offering plans within governmentally sponsored exchanges and on the individual and small-employer markets outside the exchanges. (1) In a decision that was hailed as both "politically astute" and problematic for the goals that the ACA itself was supposed to accomplish, (2) HHS shunted off the task of defining the term "essential health benefits" to the individual states. (3)

The states' authority to choose a package of essential benefits for their citizens is not totally open-ended, of course. States will be required to specify a "benchmark plan" within parameters specified by HHS, to which other approved plans must be "substantially equal." (4) In addition, every package of essential benefits must encompass ten different categories of benefits that have been specified in the ACA itself, and nondiscrimination norms apply. (5) Nonetheless, states end up with considerable discretion under what appears to be a political compromise.

Needless to say, the crafters of this plan were aware of the intensely fraught nature of any attempt to define the essence of "health," "healthcare," or "medical necessity." (6) Such decisions affect the lives and choices of the individuals covered by regulated insurance plans, as well as the bottom line of the insurers themselves. The breadth and precise nature of the ACA's requirements will directly affect the Act's ability to meet its stated goals of providing comprehensive coverage for the vast majority of Americans and controlling healthcare costs. (7) And in certain domains-particularly reproductive healthcare--the decision to include or exclude a particular service may carry political consequences and implicate value choices in a way that is particularly salient. In August 2011, for example, substantial controversy accompanied HHS's decision to adopt the Institute of Medicine's (IOM) recommendation that all new private health plans must, under the ACA, cover the full range of contraceptive options along with other preventive care for women. (8) The debate became more heated when the Obama Administration announced its intention to maintain this requirement with only a very limited "conscience clause," which exempts organizations that have religious objections to contraception but which is too narrow to cover some entities, such as hospitals and universities, that are operated by those religious groups. (9) While some condemned the administration's decision as an assault on religious freedom, HHS cast its determination in terms of protecting women's health. (10)

This controversy highlights the extraordinarily hazy contours around the definition of health in a variety of legal and policy contexts and the significance of that definition for future debates surrounding the ACA. While acknowledging that numerous social, economic, and public health consequences may attach to the definition of medical necessity, this Article focuses primarily on the constitutional issues that may arise, depending on how broadly or narrowly the government defines concepts such as "medical necessity" and "essential health benefits." At first glance it may appear that, beyond the debate about the constitutionality of the individual mandate, a governmental benefit program like the ACA is not likely to give rise to claims that an individual constitutional right has been violated. This Article speculates, however, that the unprecedented and expansive role of the government in directing individuals' healthcare portended by the ACA may provoke a re-evaluation of some apparently settled constitutional principles. While acknowledging the wide scope of constitutional rights that may become implicated, this Article focuses on one right in particular--the so-called "negative right to health." It argues that the negative right to health may be directly and substantively affected by governmental specification of essential health benefits, particularly if those benefits are defined in a way that excludes services that may be considered medically necessary.

Part II of this Article provides background. That Part begins by describing the ways in which the Affordable Care Act, supplemented by the work of the IOM, defines concepts such as "medical," "medical necessity," and "essential health benefits." Part II then provides a brief, non-exhaustive overview of the ways in which courts and commentators have struggled to define a related constellation of concepts surrounding health and healthcare in various other legal contexts. Part III then turns to the "negative right to health," beginning with an explanation, in Part III.A, of what is meant by the "negative right to health" and arguing, succinctly, for its existence. Briefly, the negative right to health is a constitutional entitlement to protect one's health by making medical treatment decisions without excessive government interference. (11) As explained in greater depth below, this right may be inferred from case-law touching on reproductive rights, the right to refuse medical treatment, and related issues. The negative right to health has been described in great depth elsewhere; (12) consequently, in this Article, both the description and the defense of the right are somewhat cursory. Part III.B then examines two significant limitations on possible arguments that the ACA infringes on the negative right to health: the state action doctrine and the subsidy/penalty distinction. Finally, Part III.C considers whether any constitutional claims pertaining to the definition of medical necessity under the ACA might survive under existing precedent. Even if no claim is likely to exist under current doctrine, this Article suggests that the eventual expansion of the government's role in healthcare decision-making under the ACA may one day provoke a reconsideration of that precedent.


Political wrangling over the meaning of "health" recently took place in Ohio, when voters overwhelmingly passed an "anti-Obamacare" amendment to the state constitution. (13) The ballot initiative, known as the Ohio Healthcare Freedom Amendment, sweepingly provided, with limited exceptions, that "[n]o federal, state, or local law or rule shall compel, directly or indirectly, any person, employer, or health care provider to participate in a health care system," nor "prohibit the purchase or sale of health care or health insurance," nor "impose a penalty or fine for the sale or purchase of health care or health insurance." (14) By its terms, the amendment applied only to laws passed after March 19, 2010. (15) Ironically, in light of the essentially conservative base of voters that supported the amendment, the first healthcare regulations to appear vulnerable were several abortion-related laws passed by the Ohio legislature in that same year, including a post-viability abortion ban, a ban on purchasing abortion insurance through the state-sponsored exchange to be created under the ACA, and a proposed ban on all abortions after the fetal heartbeat could be detected. (16) Reproductive rights advocates in Ohio pointed out that such laws prohibited the purchase and sale of healthcare and were therefore vulnerable to constitutional challenge under the new amendment. (17) Supporters of the Healthcare Freedom Amendment, hoping to keep in place the sorts of abortion restrictions that were recently passed in the state, responded that the Ohio legislature could avoid this conundrum simply by making it clear that abortion does not fall within the definition of "healthcare." (18) It is unclear, of course, whether the legislature will be able to change the impact of the Ohio Constitution by defining "healthcare" in a particular way through ordinary legislation; but this anecdote demonstrates, at a minimum, the absence of a clear definition of the term, as well as the essentially political nature of the determination of what is and is not healthcare. These two facets of the definition of "health" and "healthcare" are discussed at greater length below.


There are multiple, but related, concepts concerning "health," all of which are relevant to the operation of the ACA, and there is no consistent or clear set of definitions for them. In each case, attempts to define concepts such as "medical necessity" and "essential health benefits" founder on circularity, or simply refer the matter to other entities to decide. As a general matter, "medical necessity," a key term in insurance companies' coverage decisions, usually refers to the medical appropriateness of a particular intervention in a particular case or type of case. (19) "Essential health benefits," by contrast, is a term associated with the ACA and refers more broadly to the types of healthcare that must be covered under insurance plans, such as preventive office visits and "medically necessary" treatments for various types of conditions. (20) Thus, "medical necessity" is a more case- or condition-specific concept, whereas "essential health benefits" refers more generally to the categories of coverage under a benefits plan. These terms are, of course, intimately related insofar as they address the question of what constitutes the sort of healthcare to which individuals can claim some form of statutory or contractual entitlement. At the same time, they remain vague at their core. (21)

Numerous questions remain unanswered by the various attempts to define these terms. For example, how severe must the harm or pain be, before the need for medical treatment is recognized? Is the term "health" narrowly limited to physical health, or does it include mental health, emotional health, and social well-being? Is reproductive care an aspect of healthcare? And which persons or entities--doctors, patients, insurers, legislatures, regulators, or judges--are or should be empowered to make the final decision regarding medical necessity? Though an exhaustive study of the multiple contexts in which these issues arise is beyond the scope of this Article, Part II.A provides a sample of some of the ways in which courts and commentators have struggled with the various axes of defining "health," "medical necessity," and "essential health benefits."

1. The ACA and the Institute of Medicine Report

Prolix though it is, the ACA itself contains very little in the way of explanation or definition of key concepts such as "medical," "medical necessity," and even "essential health benefits." Section 1302 of the ACA lays out the ten categories of coverage that constitute the "essential health benefits" required for new health plans under the ACA. (22) Beyond that, however, the ACA provides no more guidance and instead delegates to the Secretary of HHS the authority to define "essential health benefits." (23) The ACA contains no explicit definition of "medical necessity," nor does it explicitly distinguish "medical" from "nonmedical" interventions. (24)

The task of defining key concepts thus largely falls on HHS. Prior to the HHS decision to allow states to define essential health benefits on their own, the IOM issued (at the request of HHS) a lengthy consensus report entitled Essential Health Benefits: Balancing Coverage and Costs, in which it attempted to grapple with some of the complexities described above. (25) The report noted, first, the difficulty of distinguishing "medical" from "nonmedical" interventions. (26) After acknowledging that "the boundaries of what is medical and nonmedical are not always distinct," and noting the additional difficulty that the ACA requires some coverage of "habilitation" services, which often have a social or educational component, (27) the report simply recommended allowing the decision about the distinction between medical and non-medical to be made by individual health plans, "with oversight by state regulators and HHS." (28)

Similarly, the IOM report noted the multiple existing definitions of "medical necessity." Again dispensing with the necessity of fixing one particular definition for the term, the IOM report embraced the view that "[t]he central question is whether the treatment is medical in nature and whether the individual can be expected to medically benefit from it"--thus referring back to the very term ("medical") that it had earlier declined to define. (29) The report essentially deferred the task to private insurers, who have substantial experience in defining medical necessity, while emphasizing the values of "individualizing care, ensuring value, and having medical necessity decisions strongly rooted in evidence." (30) Thus, the IOM report stated that services meeting the requirements of medical necessity will be those that are "(1) clinically appropriate for the individual patient, (2) based on the best scientific evidence, taking into account the available hierarchy of medical evidence, and (3) likely to produce incremental health benefits relative to the next best alternative that justify any added cost." (31) The report also noted that patients' rights would be most fully protected through the requirement of an "independent external review" that "will begin de novo and will be binding on the insurer" in cases where medical necessity is disputed. (32)

Of course, the IOM report's emphasis on medical benefit, functionality, and medical purpose would seem to clearly exclude certain types of procedures--those generally denominated as cosmetic, for example. Yet, even this apparently bright line admits of some fuzziness. For example, would a procedure such as breast reconstruction after surgery for removal of a tumor, (33) or microtia repair for a child born without an outer ear (34)--two procedures that are regularly covered by insurance--fall within this definition? (35)

2. International Law

Of course, outside the immediate context of the ACA, there have been other attempts to define "health" and "medical necessity." Efforts to define and delimit an international right to health, for example, have necessarily struggled with the question of what constitutes a minimum required level of healthcare for all. (36) Health, in the international context, is understood broadly. …

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