Vol. 24 Annals of Health Law 254
zens.12 At the federal level, the MHPAEA passed in 2008, and requires certain insurance plans to offer MH/SU benefits at parity with surgical/medical
benefits, with respect to financial requirements and treatment limitations.13
However, the MHPAEA has an Achilles heel: it does not require insurance
plans to cover mental health services.14 Specifically, the parity mandate applies only to insurance providers that choose to offer MH/SU benefits in
addition to medical/surgical coverage.15 Some insurance plans report they
dropped their MH/SU benefits to avoid compliance with the MHPAEA.16
Thus, MHPAEA’s loophole swallowed its goal: “parity” with nothing
would always be nothing. Moreover, the real issue is not lack of MH coverage, but substandard coverage.
The ACA harbors no such weakness. In order to sell “qualified health
plans” (“QHP”) on the new Exchanges created by the ACA, providers must
cover MH and SU disorder benefits as part of an EHB package mandated
by the healthcare law.17 Thus, every individual and small market group
plan offered through the Exchanges must cover MH and SU treatment ser-
vices.18 Read together, the ACA and MHPAEA create, for the first time, an
12. See Nat’l Conf. of State Legs., supra note 5 (noting that 49 states and the District of
Columbia have enacted some kind of mental health benefit law).
13. MPA Pub L. No. 110-343, sec. 512(a), 122 Stat. 3756, 3881–92 (codified as
amended at 29 U.S. C. § 1185a (2009) and 42 U.S. C. § 300gg-26 (2008)) (defining “parity”
to mean that the financial requirements and treatment limitations can be no more restrictive
than the predominant requirements and limitations placed on medical/surgical benefits). See
NAT’L ASS’N OF INS. COMM’RS, NAIC FORM REVIEW WHITE PAPER 10 (2012), available at
14. E.g., Ctr. for Consumer Info. & Ins. Oversight, The Mental Health Parity and Addiction Equity Act, CMS.GOV, http://cms.hhs.gov/CCIIO/Programs-and-Initiatives/Other-Insurance-Protections/ mhpaea_factsheet.html (last visited Nov. 17, 2014).
15. See infra Part III. B for complete details on the provisions of the MHPAEA.
16. SeeKAISERFAMILYFOUND., HEALTHRESEARCH&EDUC.TRUST,EMPLOYER
HEALTH BENEFITS – 2010 ANNUAL SURVEY 7 (2010), available at http://kaiserfamily
17. ACA Pub L. No. 111-148, § 1302(b)(1), 124 Stat. 119 (2010) (codified as amended
in scattered sections of U.S. C.) (The ACA provides a list of broad benefit classes that must
be included in each state’s “base” benchmark plan, and subsequently, any EHB-governed
plan in the state. The benefit classes include: (1) ambulatory patient services; (2) emergency
services; (3) hospitalization; (4) maternity and newborn care; (5) mental health and substance use disorder services, including behavioral health treatment; (6) prescription drugs;
(7) rehabilitative and habilitative services and devices; (8) laboratory services; (9) preventive
and wellness services and chronic disease management; and (10) pediatric services, including oral and vision care.). See also Grace et al., The ACA’s Pediatric Essential Health Benefit Has Resulted In A State-By-State Patchwork Of Coverage With Exclusions, 12 HEALTH
AFFAIRS 2136, 2136-37 (discussing EHBs and state “base” benchmark plans).
18. ACA § 1304(a)(1) (defining a group market as “the health insurance market under
which individuals obtain health insurance coverage (directly or through any arrangement) on
behalf of themselves (and their dependents) through a group health plan maintained by a
[small] employer.”); Id. § 1304(a)(2) (defining an individual market as “the market for
health insurance coverage offered to individuals other than in connection with a group health