The Act provides that “[e]ach State shall, not later than January 1, 2014, establish an American Health Benefit Exchange (referred to in this title as an ‘Ex-change’) for the State.” 42 U.S.C. 18031(b)(1). But the Act affords “State flexibility” in the fulfillment of that requirement. 42 U.S.C. 18041. A State may “elect” to set up the Exchange for itself. 42 U.S.C. 18041(b). Alternatively, if a State does not elect to create the Exchange itself, or if the Secretary of Health and Human Services (HHS) determines that the State will not have the “required Exchangeopera-tiona l by January 1, 2014,” then HHS “shall establish and operate such Exchange within the State.” 42 U.S.C. 18041(c)(1).
An Exchange operated by HHS is known as a “[f]ederally-facilitated Exchange.” 45 C.F.R. 155.20. Though run by HHS, each federally-facilitated Ex-change is the same state-specific Exchange the State otherwise would have established.
You are right in that is is not tacit...is is explicit, the federal exchange is the established [and operated] exchange within a state.