384 Holding Health Insurance Marketplaces Accountable 2015
ited the availability of implied causes of action based on regulations. 346
Now the Court must grapple with whether § 1983 can extend to regulations.
C. Difficulties Enforcing Rights Against Marketplaces in the Face of
Privatization
Another potential barrier to litigation is that most of the Marketplaces—
and even officials working for the state-based Marketplaces—may not be
considered entities acting “under color of state law” for purposes of § 1983.
Medicaid requires that the program be administered by a “single [s]tate
agency.” 347 Because injunctive relief is not available against a state directly,
the defendants in Medicaid litigation are the state officials in charge of state
Medicaid agencies, rather than the agencies themselves. 348 The majority of
the state-based Marketplaces, however, are not state agencies, which may
create additional hurdles in bringing private suits to enforce public rights.
There are two important design decisions that will determine whether a
given Marketplace will count as a state-actor for purposes of § 1983 and the
Supremacy Clause. The first—and most obvious—decision is how involved
a state is in running its Marketplace. Depending on the level of state involvement, the Marketplaces could take three forms: (1) federally-facilitated, (2) state-based, or (3) “partnership” or “hybrid” Marketplaces. 349
Currently, there are twenty-seven Federally-Facilitated Marketplaces
(“FFM”), seven partnership Marketplaces, and seventeen state-based Marketplaces. 350 The District of Columbia also established a state-based Marketplace. 351 The FFMs were established in states that elected not to establish state-based Marketplaces. 352 FFMs have no state involvement and are
administered by HHS, a federal agency. 353 Although the ACA gives HHS
the option to administer the FFMs either directly or through agreement with
346. Sandoval, 532 U.S. at 286–89.
347. 42 U.S. C. A. § 1396a(a)(5) (West, Westlaw through P.L. 113-163 (excluding P.L.
113-128, 113-159)) (approved Aug. 8, 2014); 42 C.F.R. § 431.10.
348. See Ex parte Young, 209 U.S. 123, 166-67 (1908) (holding that although injunctions are not available against a state directly, private citizens can obtain injunctions against
state officials in their official capacities.).
349. Katie Keith &Kevin W. Lucia, IMPLEMENTING THE AFFORDABLE CARE ACT: THE
STATE OF THE STATES, THE COMMONWEALTH FUND, 10–11 (Jan. 2014), available at
http://www.commonwealthfund.org/~/media/files/publications/fund-
report/2014/jan/1727_keith_implementing_aca_state_of_states.pdf.
350. DASH ET AL., supra note 189, at 6.
351. Id.
352. Keith & Lucia, supra note 349 at10-11.
353. 42 U.S. C. A. § 18041; see also CTR. FOR CONSUMER INFO. & OVERSIGHT, Federal
Marketplace Progress Fact Sheet: Progress Continues in Building Marketplaces, CTRS. FOR
MEDICARE & MEDICAID SERVS. (May 31, 2013), http://www.cms.gov/CCIIO/Resources
/Fact-Sheets-and-FAQs/ ffe.html (stating that the Marketplace will be developed by CMS in
states that have opted out of building their own Marketplace).
