Vol. 24 Annals of Health Law 399
providing an estimate of each applicant’s future tax liability.454 That is, because the advance premium tax credits are calculated based on predicted
future income, and the IRS still has the ultimate authority over tax liability
at the end of the year,455 the advance nature of the premium tax credits
might remove the Marketplace function from the category of exclusive
government functions. Furthermore, if the function is defined more specifically (i.e. “tax credits to subsidize private health insurance premiums” rather than “tax collection”), courts may determine that the tax credits are not
a service the government is obligated to provide directly.456
In sum, although it is likely to be a highly contested claim, there is a
strong argument that state-based Marketplaces, even those nominally established as private entities, will still be considered acting “under color of state
law” and therefore subject to § 1983 litigation.
Medicaid quietly emerged as the new centerpiece of § 1983 litigation.457
This litigation has played an important role in shaping Medicaid policy
throughout the country, both through a network of district court injunctions
and consent decrees, but also by inspiring state legislation modeled on earlier litigation outcomes.458 Part of the success of Medicaid litigation is due
to the fact that state Medicaid agencies and the federal Medicaid law fit
more squarely within the existing doctrine governing § 1983.459 Medicaid is
administered by prototypical state agencies whose officials clearly act “
under color of state law” for the purposes of § 1983.460 Furthermore, at least
some provisions of the federal statute utilize explicit “rights creating language” as required after Gonzaga.461 However, the newly created Health
Insurance Marketplaces will push the boundaries of several important doctrines that Medicaid litigants often relied on. The procedural due process
protections are contained exclusively in regulations rather than statutes,
challenging the scope of § 1983’s protection.462 The Marketplaces themselves vary from part of a federal agency to federal-state hybrids to organi-
454. 42 U.S. C. § 18082 (2012 & Supp. I 2013) (discussing “advance” determinations).
See, e.g., U,S. Ctrs for Medicare & Medicaid Servs., Application for Health Coverage &
Help Paying Costs, HEALTHCARE.GOV passim (September 2014), http://marketplace
455. See 26 U.S. C. § 36B(f) (2012 & Supp. I 2013) (describing reconciliation process if
predicted income differs from actual income).
456. Blum v. Yaretsky, 457 U.S. 991, 1011-12 (1982).
457. See supra Part II. A.
458. See id.
459. See supra Part II. B.
460. See supra Part IV. C.
461. See supra Part IV. A.
462. See id.; see supra Part IV. B, pp 50-54.