390 Holding Health Insurance Marketplaces Accountable 2015
cision-making. 388 The risk of self-interested decision-making is exacerbated
where “providers hold a monopoly on provision of particular services . . . or
recipients are relatively powerless.” 389 Metzger identifies several different
approaches to structuring private delegations that can help to protect procedural due process rights: one option is to impose “independently enforceable” procedural and substantive “constraints on its private delegates.”390
These protections “must be equivalent to those that would result if the private entities in question were directly subject to constitutional constraints.” 391 This is precisely what the single state agency requirement in
Medicaid accomplishes. The plaintiffs can name the private insurance companies as well as the top state Medicaid official in litigation, directly subjecting the private entities to the same constitutional and statutory obligations that the state agency is bound by. 392 Yet, this mechanism is absent in
the Marketplace context.
The private and quasi-private Marketplaces are an example of exactly the
kind of privatization that Metzger argues requires special accountability
mechanisms to protect constitutional—and in this case, federal regulatory—
rights. State-based Marketplaces are building “a single, consolidated system
to determine eligibility for exchange coverage, Medicaid or CHIP [the
Children’s Health Insurance Program].” 393 These state-based Marketplaces
make final determinations about Medicaid and CHIP eligibility. 394 Therefore, these quasi-public entities make determinations about access to important government benefits. And, consistent with the trend of increasing
privatization, state officials in several states expressed a desire to combine
Marketplace eligibility determinations with other public benefits programs,
such as the Supplemental Nutrition Assistance Program, in order to maximize administrative efficiencies and improve applicant experiences. 395
But as Metzger points out, these efficiency and innovation goals are in
tension with accountability. 396 There is no equivalent requirement for a single state agency to be accountable for the actions of the Marketplaces or
private contractors that administer Marketplace functions. Although federal
regulations seek to impose equivalent procedural and substantive constraints on the Marketplaces as are imposed on state Medicaid agencies, the
390. See id. at 297.
391. Id. at 298.
392. See, e.g., K. C. ex rel. Africa v. Shipman, 716 F.3d 107, 112 (2013) (finding that
single state Medicaid agency and private insurance company are bound by federal Medicaid
393. DASH ET AL., supra note189, at 11.
396. Metzger, supra note 386 at 295.