255 Enforcing Mental Health Parity 2015
enforceable coverage-parity mandate for MH and SU disorder benefits.19
Scholars have repeatedly observed that the law as written is not the same
as the law in action, and enforcement determines the difference between the
two.20 The ACA-MHPAEA parity mandate is therefore only as good as its
enforcement. Yet, MHPAEA enforcement efforts have largely been carried
out by private parties contesting specific benefits under their own plans, rather than by public authorities administering a consistent and highly visible
enforcement regime.21 Similarly, at the time of this writing, the ACA has no
published enforcement decisions regarding the mental health benefit required in QHPs.22
This article argues that the current MHPAEA enforcement regime is ineffective, and proposes an alternative and more unified model using the
ACA’s QHP compliance mechanism. Enforcement of the MHPAEA should
begin by standardizing EHB definitions through the ACA, followed by certification and monitoring of QHPs offered on Exchanges.23
The United States Department of Health and Human Services (“HHS”),
the agency responsible for the implementation of the ACA, has indicated
that it may revisit EHB definitions for the 2016 plan year.24 Thus, the opportunity to establish a robust set of national standards related to mental
health benefits is ripe. These standards could serve as a coverage floor for
19. See, e.g., Suann Kessler, Mental Health Parity: The Patient Protection and Affordable Care Act and the Parity Definition Implications, 6 HASTINGS SCI. & TECH. L.J. 145, 159
(2014). See also Stacey A. Tovino, All Illnesses Are (Not) Created Equal: Reforming Federal Mental Health Insurance Law, 49 HARV. J. ON LEGIS. 1, 42 (2012); Weber, supra note 6,
at 179 (“Beginning in 2014, all health plans regulated by the Affordable Care Act must also
comply with parity standards, effectively ending the second-class insurance status of persons
with these disorders.”).
20. Margaret H. Lemos, State Enforcement of Federal Law, 86 N. Y.U. L. REV. 698, 699
(2011) (citing Roscoe Pound, Law in Books and Law in Action, 44 AM. L. REV. 12 (1910),
reprinted in AMERICAN LEGAL REALISM 39, 39–40 (William W. Fisher III, Morton J. Hor-witz, & Thomas A. Reed eds., 1993)).
21. See infra Part III for a discussion of different approaches to enforcement of federal
law; see also infra Part IV. B for a discussion of MHPAEA enforcement efforts to date.
22. See ACA, Pub L. No. 111-148, 124 Stat. 119 (2010) (codified as amended in scattered sections of U.S. C.).
23. Ctr. For Consumer Info. & Ins. Oversight, State Health Insurance Marketplaces,
CMS.GOV (Oct. 30, 2013), http://www.cms.gov/CCIIO/Resources/Fact-Sheets-and-FAQs/ state-marketplaces.html. Currently there are 14 SBEs, 7 SPEs, and 27 FFEs. KAISER
FAMILY FOUND., State Decisions for Creating Health Insurance Marketplace Types, 2015
(2014), http://kff.org/health-reform/state-indicator/health-insurance-exchanges (providing
that the ACA and subsequent regulations permit the establishment of three kinds of Exchanges in each state: a State-based Exchange (SBE); a Partnership-based Exchange (SPE);
and a Federally-facilitated Exchange (FFE)).
24. Center for Consumer and Insurance Oversight, Essential Health Benefits Bulletin
[Internet]. Baltimore (MD) Centers for Medicare and Medicaid Services; 2011 Dec 16 [cited
2014 October 10], available at https://www.cms.gov/cciio/resources/files/downloads