364 Holding Health Insurance Marketplaces Accountable 2015
without undue delay.”207 The Marketplaces, like Medicaid agencies, must
also include the notice of the right to appeal and instructions on how to file
an appeal in any eligibility determination notice issued to the applicant.208
Similar to Medicaid, the Marketplace regulations provide a right to appeal
(1) determinations of the premium tax credit and cost sharing amounts, (2)
determinations of exemptions from the individual mandate, and (3) failure
to provide timely notice of an eligibility determination,209 including rights
to expedited appeals and an informal resolution process.210 Marketplace appeals must be accessible to people with disabilities and individuals with
limited English proficiency.211 Finally, like Medicaid, the regulations governing the Marketplaces include the right to continuing coverage pending
appeal.212 However, as explained below, under current doctrine HHS does
not have the authority to make these Marketplace rights privately enforceable, as they are in Medicaid. Without private enforcement, individuals who
face delays and improper denials of coverage will have no recourse.
B. Difficulties Accessing Marketplace Coverage and Subsidies
Despite HHS’s efforts to extend due process protections to the Marketplaces, applicants have faced significant procedural hurdles similar to those
that have historically spurred Medicaid litigation. For example, individuals
applying for Marketplace coverage have experienced lost and delayed ap-
plications.213 Individuals have been “looping” back and forth between the
Marketplaces and Medicaid agency; first being told they are not eligible for
Marketplace coverage and to apply with the state Medicaid agency, only to
be denied coverage by the Medicaid agency and told to return to the Mar-
ketplace.214 The system that sends Medicaid applications from the federal
207. 45 C.F.R. § 155.310(e) (2014).
208. 45 C.F.R. § 155.355 (2014).
209. Compare 42 U.S. C. A. § 1396a(a)(3); 42 C.F.R. §§ 431.200–.250 (2014) (
Medicaid Protections) with 45 C.F.R. §§ 155.505–.555 (2014) (Marketplace Protections).
210. Compare 42 U.S. C. A. § 1396a(a)(3); 42 C.F.R. §§ 431.200–.250 (2014) (
Medicaid Protections); 45 C.F.R. §§ 155.505–.555 (2014) (Marketplace Protections) with.45
C.F.R. §§ 155.535, 155.540(a).
211. 45 C.F.R. § 155.505(f) (2014).
212. 45 C.F.R. § 155.525 (2014).
213. Sarah Kliff, HealthCare.gov Finally Works – For Some People, WASH. POST (Dec.
2, 2013), http://www.washingtonpost.com/blogs/wonkblog/wp/2013/12/02/healthcare-gov-
finally-works-for-some-people/; Robert Pear & Reed Ableson, Insurers Claim Health Website is Still Flawed, N. Y. TIMES, Dec. 1, 2013, at A1, available at http://www
214. Sabrina Corlette, It’s Enough to Make You Loopy: Inside the Kafka-esque World
of Medical “Loopers”, CTR. ON HEALTH INS. REFORMS (Apr. 27, 2014),