261 Enforcing Mental Health Parity 2015
are many areas of regulatory and legislative concern that call for concurrent
enforcement by both state and federal government.68 At the federal level,
enforcement tends to be more monopolistic,69 allowing federal agencies to
consistently control and adjust their enforcement efforts.70 Additionally,
while state efforts will typically be fragmented and inconsistent, the federal
government often crafts coherent enforcement policies that apply across
state boundaries.71 State enforcement also has some advantages, as state enforcers have the benefit of local and direct knowledge of an area of regulatory concern, and allow for citizen participation in ways federal authorities
As already noted, healthcare enforcement involves the federal government and states acting individually or jointly.73 There is no single model.
For example, both federal and state governments enforce the Medicaid pro-
gram.74 In contrast, enforcement of the Health Insurance Portability and
Accountability Act (“HIPAA”) lies solely within the purview of the federal
government.75 The role of the federal government and states in enforcing
federal health care mandates, such as the MHPAEA and the ACA, is negotiated throughout the legislative process, and similar to any law, results in
compromise and settlement as legislators work towards final resolution and
III. ENFORCEMENT UNDER MENTAL HEALTH PARITY LAW AND THE ACA
The two legislative acts that most significantly impact mental health parity today are the MHPAEA and the ACA.77 The two laws interact in a number of significant ways. Generally, the ACA expands the reach of the
68. Rose, supra note 26, at 1350. Besides the securities realm, another example is
homeland security. See generally E.L. Gaston, Taking the Gloves Off of Homeland Security:
Rethinking the Federalism Framework for Responding to Domestic Emergencies, 1 HARV. L.
& POL’Y REV. 519 (2007).
69. See Lemos, supra note 20, at 717.
70. Rose, supra note 26, at 1353.
71. Id. at 1361.
72. See generally id. at 1357–58.
73. See Lemos, supra note 20, at 707.
74. Federal Policy Guidance, MEDICAID.GOV, http://www.medicaid.gov/Federal-Policy-Guidance/ Federal-Policy-Guidance.html (last visited Nov. 17, 2014).
75. See Health Insurance Portability and Accountability Act, Pub. L. No. 104-191, 110
Stat. 1936 (1996) (codified as amended in scattered sections of 26 U.S. C, 29 U.S. C, and 42
76. See generally The Legislative Process, HOUSE.GOV, http://www.house.gov/content
/learn/legislative_process/ (last visited Nov. 17, 2014) (providing an overview of the legislative process).
77. See MHPAEA, § 512(a) (codified at 29 U.S. C. § 1185(a)) (2009); See also ACA §
1311 (codified at 42 U.S. C. A. § 18031) (West, WestlawNext current through P.L. 113-180).