Vol. 24 Annals of Health Law 260
B. Private and Public Enforcement Regimes
Enforcement of any law or regulation can be grouped into two broad cat-
egories.57 The first is private enforcement, which consists of private individuals or groups enforcing the law.58 The second is public enforcement,
carried out by governmental authorities, such as regulatory agencies or attorneys general.59 There are advantages and disadvantages to both approaches.
Private enforcement seeks compensation for the alleged harm.60 Potential
defenders in healthcare lawsuits, including providers and payers, see the
cost of litigation alone as a deterrent.61 However, private enforcement can
result in disparities when those without sufficient economic resources are
unable to bring complaints, and the violations of a statute’s provisions remain unenforced.62 Additionally, private parties can be motivated by their
own private interests and often ignore the costs and benefits of their efforts
Public enforcement, on the other hand, has different advantages and disadvantages. Public agencies translate legislative requirements into workable
rules, centralizing principles and taking all aspects of the public’s interest
into account.64 Public authorities tend to promote greater deterrence, given
the visibility and consistency in government approach relative to disorganized private efforts.65 Public enforcement also has drawbacks: notably,
the scarcity of resources and the propensity of some policymakers to shy
away from controversial actions or overreact to public opinion or lobbying
Public enforcement can be broken down further depending on whether
enforcement authority rests with the federal government or states.67 There
57. Lemos, supra note 20, at 704.
58. See id. at 704, 706.
59. Id. at 704; See infra Part IV (for a discussion of some of the private MHPAEA enforcement efforts to date).
60. Lemos, supra note 20, at 706.
61. See id. (discussing profit motives and availability of multiple damages in private
62. See Eloise Pasachoff, Special Education, Poverty, and the Limits of Private Enforcement, 86 NOTRE DAME L. REV. 1413, 1424–30 (2011) (discussing the limits of private
enforcement and its ineffectiveness for low income beneficiaries).
63. Lemos, supra note 20, at 706.
64. Id. at 704–05. When enforcement proceeds through formal agency rulemaking, the
public is usually more involved because of the public notice and comment procedures embedded in the federal Administrative Procedure Act and its state equivalents. See generally
Ronald M. Levin, Rulemaking Under the 2010 Model State Administrative Procedure Act,
20 WIDENER L. J. 855 (2011).
65. See Lemos, supra note 20, at 705–07.
66. Id. at 705–06.
67. See id. at 717.