259 Enforcing Mental Health Parity 2015
existence of state-mandated benefit laws.50 As observed by the National
Conference of State Legislatures, “[f]or more than two decades, state legislators have regularly debated and enacted ‘mandates’ or required health
coverage for specific treatments, benefits, providers and categories of de-
pendents.”51 These mandated benefit statutes typically require coverage for
certain types of care, such as treatment related to mental illness or substance
abuse, childhood immunizations, maternity care, and other services.52 There
are more than 1,900 such statutes among all fifty states.53
This joint federal-state paradigm means states are routinely enforcing national legislation or policies either independently or concurrently in exchange for federal program funding and program support.54 State interest in
doing so varies, of course, depending on a number of factors including capacity issues, financing incentives, and politics.55 The question of how to
effectively implement and allocate enforcement authority between the two
layers of government is highly complex and one of perennial debate.56
pose of providing medical, surgical, or hospital care benefits to beneficiaries through the
purchase of insurance. 29 U.S. C. A. § 1002(1) (West, WestlawNext current through P.L. 113-
180). Some 175 million workers and their families are covered through an ERISA-governed
health plan. ROSENBAUM, supra note 29, at 259. As a result of ERISA, certain kinds of employee benefit plans, including those offering health benefits, do not have to comply with
state insurance laws. Janet E. Kaminski, Self-Insured Benefit Plans and Insurance Mandates,
OLR RESEARCH REPORT (2005). ERISA contains three important clauses that implement
federalist principles and work together to remove most denial of benefit claims to federal
court. The preemption clause states that ERISA provisions “shall supersede . . . State laws”
to the extent that those laws “relate to any employee benefit plan.” 29 U.S. C. § 1144(a)
(West, WestlawNext current through P.L. 113-180). The savings clause accepts from the
preemption clause state laws that regulate insurance. Id. § 1144(b)(2)( A). The deemer clause
makes clear that a state law that purports to regulate insurance cannot deem an employee
benefit plan to be an insurance company. Id. § 1144(b)(2)( B). In interpreting these provisions, the Supreme Court has held that Congress intended ERISA to completely preempt any
state law that expands the remedies available for a failure to provide plan benefits, even if
that law regulates insurance. Pilot Life Insurance Co. v. Dedeaux, 481 U.S. 41, 44–45
(1987). ERISA does provide civil remedies for plan enrollees who have been denied health
insurance benefits, although these remedies are typically less robust than those available under state law. See Aetna Health, Inc. v. Davila, 524 U.S. 200, 221 (2004) (finding that no
remedy for a wrongful death resulting from the improper denial of health benefits exists under ERISA).
50. Nat’l Conf. of State Legs., Mandated Health Insurance Benefits and State Laws,
(last updated Jan. 2013).
52. ROSENBAUM, supra note 29, at 206–07.
53. State Health Insurance Mandates and the ACA Essential Benefit Provisions, supra
54. See id.
55. See Rose, supra note 26, at 1352–55.
56. Randall, supra note 47, at 626–28.