388 Holding Health Insurance Marketplaces Accountable 2015
In addition to different hurdles for even advancing the claim, these
claims operate with different substantive standards. Given the current doctrine, regulations would be enforceable against HHS, but not against the
state-based Marketplace. Furthermore, courts would be deferential to HHS
actions that might receive more scrutiny if conducted by the state Marketplaces being reviewed under § 1983.376 Therefore, determining who is responsible for the failure to provide notice or process an appeal will be critical in determining under which legal regime the case proceeds. The fact
that the new administrative system is so intensely integrated between federal and state actors also calls into question the rigid, categorical quality of
the current access to court doctrines.
Beyond the federal-state divisions of authority, state-based Marketplaces
also have options to divide authority among public or private actors. If a
state has elected to implement a state-based Marketplace, states can set up
that Marketplace as part of an existing state agency or office, as an independent state agency, or as a non-profit entity. 377 State-based Marketplaces
are typically established through legislation, though some states created
state-based Marketplaces through executive orders. 378 Among the eighteen
state-based Marketplaces, there are several different governance structures.
Five states established the Marketplaces within existing state agencies, one
established the Marketplace as a new state agency, ten states and the District of Columbia established the Marketplaces as quasi-governmental entities, and one state set up the Marketplace as a private non-profit. 379 Medicaid federal law requires that a “single state agency” have the primary and
ultimate responsibility for the program. 380 Therefore, the “under color of
state law” requirement of § 1983 was not a hurdle for Medicaid litigation.
In the six states that chose to establish their Marketplaces as either part of
an existing state agency or as a new state agency, the § 1983 cause of action
376. Thomas W. Merrill & Kristin E. Hickman, Chevron’s Domain, 89 GEO. L.J. 833,
833 (2001) (“The Supreme Court’s decision in Chevron U.S. A. Inc. v. Natural Resources
Defense Counsel, Inc. dramatically expanded the circumstances in which courts must defer
to agency interpretations of statutes.”).
377. See DASH ET AL, supra note 189, at 10 (describing choices states made regarding
marketplace governance structures).
378. Press Release, Andrew M. Cuomo, Governor Cuomo Issues Executive Order Establishing Statewide Health Exchange (Apr. 12, 2012) available at
http://www.governor.ny.gov/press/04122012-EO-42 (establishing New York’s state-based
379. DASH ET AL., supra note 189, at 10 (Kentucky, New York, Rhode Island, Utah, and
Vermont utilized existing state agencies. Nevada established a new state agency. California,
Colorado, Connecticut, Idaho, Maryland, Massachusetts, Minnesota, New Mexico, Oregon,
Washington and the District of Columbia established “quasi-governmental entities”, Hawaii
established a private non-profit.).
380. See 42 § U.S. C. 1396a(a)(5) (West, Westlaw through P.L. 113-163 (excluding P.L.
113-128)) (approved Aug. 8, 2014).