Jacqueline Fisher v. Aetna Life Insurance Company, 32 F.4th 124

Background

Dunnegan & Scileppi (D&S) selected Aetna’s 2014 small-group plan; Aetna sent a five‑page "Final Rates" sheet on Jan 9, 2014 and a full plan certificate on Feb 19, 2014 that included a "Choose Generic" clause requiring members who elect brand drugs to pay the price difference unless a medical‑necessity waiver is approved.
The February 19 certificate matched language previously approved by New York DFS and was much longer and more detailed than the January 9 sheet.
Jacqueline Fisher (Dunnegan’s spouse) was prescribed EffexorXR (brand) though a generic (venlafaxine) existed; Aetna covered EffexorXR only at negotiated pricing but imposed the Choose Generic cost differential because no medical‑necessity waiver was obtained.
Fisher sued under ERISA seeking (1) a declaration that the January 9 document governed (so no Choose Generic clause), (2) reimbursement of copay/cost differentials, and (3) application of individual out‑of‑pocket limits and inclusion of the brand‑generic differential toward those limits under the ACA.
District courts found (a) D&S was on inquiry notice of the full February 19 terms so that certificate governed, (b) Aetna’s administrative decisions (including payment of a small copay differential on remand) were not arbitrary and capricious, (c) the HHS 2015 Rule adopting an embedded individual out‑of‑pocket limit was legislative and not retroactive to 2014–2015 plans, and (d) the cost differential was not a covered service/countable cost because Fisher did not obtain a medical‑necessity waiver.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Which document governs the 2014 plan contract?	January 9 "Final Rates" was the governing contract; no later terms bind her.	February 19 certificate is the contract; D&S was on inquiry notice of full terms.	February 19 document governs; D&S was on inquiry notice of its terms.
Entitlement to money judgment for copay differential (2015 remand)	Fisher sought judicial award of the copay differential Aetna admitted miscalculated.	Aetna had remedied the error on remand and paid (sent) the differential; administrator’s decision is final under ERISA standard.	No judgment: Aetna’s administrative remediation was not arbitrary or capricious; Fisher is not entitled to a court judgment for relief Aetna provided.
Does the ACA require treating each individual on a family plan as subject to the individual (self‑only) out‑of‑pocket limit for 2014–2015 plans?	Section 18022(c) and ACA purpose require embedded individual limit for any individual, even on family plans.	The ACA is ambiguous; HHS’s 2015 Rule adopting embedded limits is legislative and applies prospectively (2016 onward) only.	ACA ambiguous; 2015 Rule is legislative and not retroactive; policy terms control for pre‑2016 plans (family limit applies).
Must the brand‑generic cost differential count toward out‑of‑pocket limits under the ACA?	The Choose Generic differential is "cost‑sharing" and therefore must count toward the statutory out‑of‑pocket limit.	The differential is spending for a non‑covered service unless a medical‑necessity waiver renders the brand drug a covered service; Fisher never obtained such a waiver.	Differential does not count: EffexorXR purchases were not a covered service absent a medical‑necessity waiver, so the differential is excluded from ACA cost‑sharing.

Key Cases Cited

Starke v. SquareTrade, Inc., 913 F.3d 279 (2d Cir. 2019) (inquiry‑notice doctrine for assent to contract terms)
Meyer v. Uber Techs., Inc., 868 F.3d 66 (2d Cir. 2017) (users are on inquiry notice of conspicuous terms)
Conkright v. Frommert, 559 U.S. 506 (2010) (deferential review where plan grants discretionary authority)
Fay v. Oxford Health Plan, 287 F.3d 96 (2d Cir. 2002) (arbitrary‑and‑capricious standard explained)
Anderson v. City of Bessemer City, N.C., 470 U.S. 564 (1985) (clearly erroneous standard for factual findings)
Soliman v. Subway Franchisee Advert. Fund Tr., Ltd., 999 F.3d 828 (2d Cir. 2021) (contract‑formation review standards)
Specht v. Netscape Commc’ns Corp., 306 F.3d 17 (2d Cir. 2002) (appellate review of factual findings on contract assent)
Sweet v. Sheahan, 235 F.3d 80 (2d Cir. 2000) (retroactivity and distinction between legislative and interpretive rules)