Other examples abound. See, e.g., 42 U.S.C. § 1320b-23(a)(2) (pharmacy benefits managers would be obligated to provide certain pricing information to HHS if the plan is offered on a state-operated Exchange, but not on a federally-facilitated Exchange); 42 U.S.C. § 1396w-3(b)(1)(E) (federally-facilitated Exchange would not be subject to provisions concerning coordination of Medicaid and CHIP benefits); 42 U.S.C. § 1397ee(d)(3)(B) (federally-facilitated Exchange would not have any obligation to enroll children in CHIP program in the Exchange, as states would in certain circumstances); 42 U.S.C. § 1397ee(d)(3)(C) (“[w]ith respect to each State,” HHS must review and certify whether qualified health plans offer benefits for children that are at least comparable to those offered in the state’s CHIP plan, but this review extends only to plans “offered through an Exchange established by the State under [42 U.S.C. § 18031]”; thus, HHS could not fulfill this obligation in “each State” with a federally-facilitated Exchange) (emphasis added); 42 U.S.C. § 18054(c)(3)(A) (individual enrolled in a multi-state health plans in a federally-facilitated would not be eligible for federal premium tax credit, contrary to statutory direction that such individual “shall be eligible for credits under section 36B of Title 26”) (emphasis added). Case 1:13-cv-00623-PLF Document 38 Filed 09/27/13 Page 28 of 42 19 3.

In Defendants’ Memorandum in Support of Their Cross-Motion for Summary Judgment and In Opposition to Plaintiffs’ Summary Judgment Motion at page 30, Halbig v. Sebelius, No. 13-0623 (D.D.C. 2013), ECF No. 50, Defendants make the rather remarkable claim that: Congress’s use of the phrase “such Exchange” does not mean that the federally- facilitated Exchange and the state-sponsored Exchange are “necessarily separate.” The phrase means, instead, that the federally-facilitated Exchange is the same entity as the earlier-referenced Exchange, that is, the Exchange contemplated under 42 U.S.C. § 18031. In other words, the federal government believes that when it establishes an Exchange pursuant to Section 1321(c), it is actually establishing “the same entity as” the Exchange referred to in ACA Section 1311(b)—an Exchange that is, by law, established by the State for the State.

Other language in the ACA confirms this point: § 1311 of the ACA applies a heightened standard to insurance plans, barring insurers from using practices “that have the effect of discouraging the enrollment in such plan by individuals with significant health needs.” 42 U.S.C. §18031(c)(1)(A) (emphasis added). This “effects” language, which is limited to insurers, confirms that, where Congress intended to reach disparate effects, it said so.9 Moreover, Plaintiffs have not alleged facts showing that Gilead’s conduct adversely affected a protected class as compared to “similarly situated” individuals “who are not members of a protected class.”

Accordingly, when the Legislature intends for there to be private rights of action for such violations, it has done so expressly. For example, the Legislature provided by statute: Any agent or representative of an insurer or health maintenance organization, insurance broker, person who has received a grant from and has been certified by the health benefit exchange established pursuant to section 1311 ofthe affordable care act, 42 U.S.C. § 18031, to act as a navigator . . . shall violate any of the provisions of this section and shall knowingly receive any compensation or commission for the solicitation, sale or negotiation of any insurance policy, health maintenance organization or annuity contract induced by a violation of this section shall also be liable for a civil penalty in the amount received by such violator as compensation or commission, which penalty may be sued for and recovered for his, her, or its own use and benefit by any person induced to purchase an insurance policy[.] Ins. § 2123 (emphasis added); see also Id.

Case 4:16-cv-00151-RGE-CFB Document 64 Filed 09/08/16 Page 15 of 69 4 Exchanges (“Exchanges”), virtual marketplaces in each state whereby individuals and small groups can purchase pre-certified health insurance coverage. 42 U.S.C. §§ 18031-18041. Each plan offered through an Exchange must be a “Qualified Health Plan,” or “QHP,” meaning that it provides certain “essential health benefits” and complies with other requirements established by Congress and HHS.