Vol. 24 Annals of Health Law 363
Specifically, HHS determined that it was necessary to align the Marketplace appeal requirements with Medicaid’s fair hearing standards because
HHS “support[s] the protections to the appellant that are provided through
the Medicaid fair hearing process and believe that they are important when
an appeal concerns eligibility to purchase a [qualified health plan] through
the Marketplace and related insurance affordability programs, as well.”201
HHS specifically stated that due process protections should outweigh the
value of flexibility and innovation:
We agree that flexible standards often result in innovative and efficient
processes; however, in this context, where the due process rights involved are related to access to affordable, quality health care coverage,
we consider it important to implement a standard framework for appeals
processes with explicit appellant rights and protections to ensure that appellants receive full and fair review. Therefore, we are maintaining the
alignment with Medicaid fair hearing rights and are finalizing the provisions as proposed.202
HHS clearly intended for the Marketplace due process rights to mirror
the Medicaid rights, and accordingly, has promulgated regulations extending Medicaid’s due process protections to the new Marketplaces.203 The
emphasis on “explicit appellant rights” reflects an attempt to ensure that
Marketplace applicants are in the same position as Medicaid beneficiaries.
But, in order to accomplish this policy goal, Marketplace applicants must
have privately enforceable rights like Medicaid beneficiaries. HHS’s no
wrong door policy signals its support for private enforcement of due process protections against the Marketplaces.
The regulations take many steps to ensure that the Marketplace appeals
process and due process protections parallel the Medicaid appeals pro-
cess.204 In Medicaid, eligibility determinations must be made with “
reasonable promptness,”205 specified by regulations as within forty-five days.206
Eligibility determinations in the Marketplaces must be made “promptly and
4594, 4621 (proposed Jan. 22, 2013) (to be codified at 42 C.F.R. pts. 430, 431, 433, 435,
440, 447, 457 & 45 C.F.R. pt. 155).
201. Patient Protection and Affordable Care Act; Program Integrity: Exchange, SHOP,
and Eligibility Appeals, 78 Fed. Reg. 54070, 54106 (proposed Aug. 30, 2013) (to be codified
at 45 C.F.R. pts. 147, 153, 155, 156) [hereinafter 78 Fed. Reg. 54070].
203. See also Sarah Somers & Kim Lewis, Health Advocate: Due Process, NAT’L
HEALTH L. PROGRAM (Nov. 15, 2013), http://www.healthlaw.org/publications/Health-
advocate-due-process#.VEGcdb5a_ww (“federal regulations explicitly extend these rights to
individuals seeking insurance coverage and other benefits through the newly created Health
204. 78 Fed. Reg. 54070, supra note 201, at 54106.
205. 42 U.S. C. A. § 1396a(a)(3) (West, WestlawNext through P.L. 113-174).
206. 42 C.F.R. § 435.912 (2014).