370 Holding Health Insurance Marketplaces Accountable 2015
where they are phrased in terms of requirements on other actors. 252 The section of the Act governing appeals is sparse and lacks any of the signifiers
the Court typically relies on to identify a privately enforceable right:
f) APPEALS AND REDETERMINATIONS.—(1) IN GENERAL.—The
Secretary, in consultation with the Secretary of the Treasury, the Secretary of Homeland Security, and the Commissioner of Social Security,
shall establish procedures by which the Secretary or one of such other
Federal officers—( A) hears and makes decisions with respect to appeals
of any determination under subsection (e); and ( B) redetermines eligibility on a periodic basis in appropriate circumstances. 253
Subsection (e) lists the required information and verification procedures
required for a Marketplace eligibility determination. 254 Essentially, this text
creates a broad directive to the agency to create an appeals process. The text
does not include the specific “rights-creating” language the Court has required after Gonzaga, since it is not phrased in terms of the beneficiaries,
but rather, in terms of the Secretary’s obligations. Subsection (e) is also
phrased in terms of the Secretary’s obligations to verify information and
collect more data. 255
The question for Marketplace beneficiaries is whether the more individualized, rights-granting language in the regulations can establish a privately
enforceable right. The Supreme Court has not addressed the enforceability
of purely regulatory rights through § 1983.256 HHS has made a clear statement that due process protections in the Marketplace should mirror the protections in Medicaid. 257 In order to truly mirror Medicaid protections, the
Marketplace rights must be privately enforceable. However, a majority of
appellate courts, reading two important cases together, Gonzaga and Alexander v. Sandoval, 258 have concluded that federal regulations cannot create
a “right” enforceable through § 1983 and that such “rights” must be granted
through statutory text. 259 Under the majority rule, therefore, HHS is denied
252. Bobroff, supra note 152, at 62.
253. 42 U.S. C. A. § 18081(f) (West, WestlawNext through P.L. 113-163 (excluding
254. 42 U.S. C. A. § 18081(e) (West, WestlawNext through P.L. 113-163 (excluding
256. Bobroff, supra note 172, at 428.
257. Patient Protection and Affordable Care Act; Program Integrity: Exchange, SHOP,
and Eligibility Appeals, 78 FR 54106.
258. Alexander v. Sandoval, 532 U.S. 275 (2001).
259. See Johnson v. City of Detroit, 446 F.3d 614, 629 (6th Cir. 2006) (overruling earlier case allowing § 1983 cases based on regulations in light of Gonzaga and Sandoval); Save
Our Valley v. Sound Transit, 335 F.3d 932, 938–39 (9th Cir. 2003); S. Camden Citizens in
Action v. N.J. Dep’t. of Envtl. Prot., 274 F.3d 771, 788 (3d. Cir. 2001). See also Harris v.
James, 127 F.3d 993 (11th Cir. 1997) (finding, before Gonzaga and Sandoval that § 1983