To be fair, this statement isn't true. To begin with, while the ACA was passed March 23, 2010 it did not contain any of the substantive rules about grandfathering other than the requirement for the coverage to be in effect as of 3/23/10. The rules fleshing out the law wouldn't become known until about three months later (June 17, 2010) when CCIIO published OCIIO-9991-IFC, detailing the requirements for a policy in effect 3/23/10 to retain its grandfather status. This is important for three reasons:
1. There was a gap of about three months when insurers were issuing plans without knowing if the new issuances would be grandfathered;
2. The insurers also had no idea what the rules around retaining grandfather status would be; and
3. OCIIO-9991-IFC is an interim final rule. This effectively means that the rule has never gone through the proper vetting process, including public comment. Unlike so many of the other rules, the content of this one was a "surprise" to all parties involved.
To follow, your allusion that insurers are to blame for selling policies "that they knew would be banned" is disingenuous. While the interim final rule was published 6/17/10, giving insurers a "head's up" as to what wouldn't be allowed, it did not tell them what would be allowed. You may editorialize whatever reason you choose, but the fact remains that crucial regulations were not released in a timely fashion. For example, the state-specific Essential Health Benefit packages were not announced until the release of CMS-9980-F on February 20, 2013. Some non-crucial rules are even still being released (SEE: CMS-4140-F, concerning mental health parity, released November 8, 2013). Given that no insurer could possibly market an ACA-compliant product prior to the EHB announcement on 2/20/13, that means that there were approximately 32 months from when the insurers were told what they couldn't sell to when they were told what they could sell. What were they supposed to do during those 32 months? Should the industry have shut down, not selling a single new policy until they were told what would be compliant as of 1/1/14? Should they have gone to the dartboard, investing millions of dollars in new plan designs without knowing if they'd be compliant (and facing the same prospect they do now, where if a plan wasn't compliant they "should have known it would be banned")?