Vol. 24 Annals of Health Law 256
all health plans available through Exchanges.25 This article contributes to
The remainder of this article proceeds in five parts. Part II provides
background on the role of the federal government and states in health insurance regulation and enforcement. Part III includes an overview of the ACA
and MHPAEA; specifically, a description of their enforcement provisions.
Part IV details the criticism of the MHPAEA’s weak enforcement mechanism, as well as existing public and private enforcement efforts undertaken
to date. Part V explains how the ACA and MHPAEA interact to create a
new coverage-parity mandate, and then proposes a new model for enforcing
the MHPAEA through the ACA’s EHB definitions and compliance mechanisms. Part VI concludes.
II. REGULATING HEALTH INSURANCE IN THE FEDERALIST PARADIGM
The United States health insurance system presents a unique and complex challenge for legislators and regulators, especially in the context of our
federalist roots.26 Congress, state legislatures, and federal and state regulatory agencies all play a role in monitoring and enforcing healthcare law.27
This concept of “concurrent enforcement”—wherein federal and state authorities share responsibility for enforcement of national policy—has
sparked much scholarly attention of late.28 The issue is especially prevalent
in the area of healthcare law and insurance, given the enactment of the ACA
in 2010 and its joint implementation by the federal government and states.29
25. See infra Part 0 (identifying the statutory and regulatory basis for enforcement of
both the parity law and healthcare law). See also infra Part 0 (reviewing the limited
MHPAEA enforcement efforts to date, demonstrating the challenges private actors still face
in obtaining equitable coverage, and the overall ineffectiveness of the current enforcement
regime); infra Part 0, Appendix A (exploring the limits and exclusions all 50 states and the
District of Columbia placed on their MH/SU benefits in their 2012 EHB-benchmark plans,
which are similar to enforcement of the MHPAEA, because the HHS Secretary deferred to
both states and payers in defining the MH/SU essential health benefit, and broad variability
exists in coverage).
26. See generally Amanda M. Rose, State Enforcement of National Policy: A Contextual Approach (with Evidence from the Securities Realm), 97 MINN. L. REV. 1343 (2013) (
discussing how power should be separated between the states and federal government to conserve federalism).
27. See id. at 1351 (explaining that the state and federal government often work together to enforce laws in the United States).
28. E.g., id. at 1344 (citing Rachael E. Barkow, Insulating Agencies: Avoiding Capture
Through Institutional Design, 89 TEX. L. REV. 15, 56–57 (2010), and Lemos, supra note 20,
29. See SARAH ROSENBAUM & DAVID M. FRANKFORD, LAW AND THE AMERICAN HEALTH
CARE SYSTEM 223 (2d ed. 2012) (discussing the ACA’s impact on “cooperative federalism”).