374 Holding Health Insurance Marketplaces Accountable 2015
The provision of the ACA delegating appeals rights should be similarly
understood. The text of the statute recognizes the need for appeals, but
leaves the design of the appeals process to the Secretary of HHS. 284 The approach proposed in this paper is particularly compelling in the context of a
delegation of authority to an agency to create an appeals process. Although
individuals aren’t named in the text of the ACA, the text suggests that the
appeals process is intended to benefit individual applicants. HHS is instructed to design an appeals process so that the federal officer “hears” appeals, anticipating that individuals—rather than the Marketplace itself—
will initiate appeals. 285 The fact that the text of the ACA contemplates appeals initiated by beneficiaries as of right rather an alternative whose purpose is more likely to be ensuring system integrity, an audit system for example, suggests that the appeals are intended to benefit individuals. There is
also a separate requirement that the Secretary establish a process for eligibility redeterminations—a procedure more aimed at system integrity than
individual appeals as of right—confirming that the requirement for a distinct appeals process contemplates individually initiated appeals. 286
Finally, an earlier section outlining responsibilities of the Marketplaces
when faced with incomplete or inconsistent information in an application
states: “APPEALS PROCESS.—The Exchange shall also notify each person receiving notice under this paragraph of the appeals processes established under subsection (f).” 287 Although this earlier section does not itself
refer to individuals or a right to appeal, the notice requirement supports a
reading of the ACA that individuals have a right to an appeal. Therefore,
although not referred to in the signifiers courts usually look for, a fair reading of the text reveals a congressional intent to provide individuals with the
right to appeal an adverse determination made by the Marketplace, but
leaves the details of how to structure that appeal to HHS.
B. Courts Should Recognize Delegations of Rights-Making Authority to
As the comparison above illustrates, the current doctrine governing §
1983 requires a clear statement by Congress that individuals have a private-
(10th Cir. 2012) (explaining that regulations impose more precise obligations than the text of
the ADA and that § 1983 could be used to enforce those regulations that impose the details
of the more general statutory right).
284. 42 U.S. C. A. § 18081(f) (West, WestlawNext through P.L. 113-163 (excluding
285. 42 U.S. C. A. § 18081(f)(1)( B).
286. 42 U.S. C. A. § 18081(f)(1)( A)-( B).
287. 42 U.S. C. § 18081(e)( C)(West, Westlaw through P.L. 113-163 (excluding P.L.