394 Holding Health Insurance Marketplaces Accountable 2015
as the Connecticut Health Insurance Exchange.”416
Colorado and New Mexico decided to use a public nonprofit organiza-
tion.417 Colorado’s law states that “[t]here is hereby created a nonprofit unincorporated public entity known as the health benefit exchange. The board
of directors shall govern the operation of the exchange.” 418 But the statute
goes on the say that “the exchange is an instrumentality of the state.”419
New Mexico, on the other hand, states that “[t]he ‘New Mexico health insurance exchange’ is created as a nonprofit public corporation,” which is a
“governmental entity for purposes of the Tort Claims Act, and neither the
exchange nor the board shall be considered a governmental entity for any
other purpose.”420 Hawaii chose to utilize a private non-profit organiza-
Like New Mexico, several states specifically attempted to distinguish
their Marketplace from other state agencies. Hawaii made the greatest effort, stating: “[t]he connector shall not be an agency of the State and shall
not be subject to laws or rules regulating rulemaking, public employment,
or public procurement.”422 Colorado makes a similar declaration, specifying: “neither the exchange nor the board is an agency of the state.”423 Connecticut also states that “[t]he Connecticut Health Insurance Exchange shall
not be construed to be a department, institution or agency of the state.”424
Likewise, Idaho explicitly characterizes the Marketplace as a non-agency:
“The exchange created by this chapter is not a state agency, shall not be
subject to the purchasing statutes and rules of the state of Idaho or subdivisions of the state.”425
Despite these states’ best efforts, the test to determine whether an entity
is a governmental entity is not based on the statement of the legislation creating the entity, as the Supreme Court made clear in Lebron v. National
Railroad Passenger Corporation.426 In Lebron, the Court held that even
though Congress declared that Amtrak was a private corporation, its declaration did not determine its governmental status for the purpose of enforc-
416. CONN. GEN. STAT. ANN. § 38a-1081(a) (West 2014).
417. COLO. REV. STAT. § 10-22-104 (2014) .; N.M. Stat. Ann. § 59A-23F-3( A) (West
418. COLO. REV. STAT. ANN. § 10-22-104.
420. N.M. STAT. ANN. § 59A-23F-3( A).
421. HAW. REV. STAT. § 435H-2(a) (West 2014)(“The connector shall be a Hawaii non-profit corporation organized and governed pursuant to . . . the Hawaii nonprofit corporations
422. tit. 24, § 435H-2(a).
423. COLO. REV. STAT. ANN. § 10-22-104 (West)
424. CONN. GEN. STAT. ANN. § 38a-1081(a) (West).
425. IDAHO CODE ANN. § 41-6104(1)-(2) (West 2014).
426. Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374, 392 (1995).