267 Enforcing Mental Health Parity 2015
Administration chose not to standardize the definitions of EHBs, instead allowing each state to create its own benchmark plan model.121 Benchmark
plans, serving as reference plans, reflect the scope of services and limitations offered by typical employer plans in each state.122 If states did not select a benchmark plan, HHS chose one for them.123 In adopting this approach, the Administration granted states and payers broad authority to
establish EHB standards, including MH.124 Accordingly, states submitted
benchmark plans to Consumer Information and Insurance Oversight in
2012, detailing benefit inclusions, exclusions, and other limitations.125
Under the ACA, both federal and state authorities are expected to monitor certified QHPs, its EHBs, and enforce any ACA provisions or related
regulations a plan fails to satisfy. The ACA defines a QHP as:
The term ‘qualified health plan’ means a health plan that—( A) has in effect a certification . . . that such plan meets the criteria for certification
described in section 1311(c) issued or recognized by each Exchange
through which such plan is offered; ( B) provides the essential health benefits package described in section 1302(a); and ( C) is offered by a health
insurance issuer that—(i) is licensed and in good standing to offer health
insurance coverage . . . (ii) agrees to offer at least one qualified health
plan in the [silver and gold levels] in each such Exchange; (iii) agrees to
charge the same premium rate for each qualified health plan of the issuer
without regard to whether the plan is offered through an Exchange or
whether the plan is offered directly from the issuer or through an agent;
and (iv) complies with the regulations developed by the Secretary under
section 1311(d) and such other requirements as an applicable Exchange
121. Essential Health Benefits Bulletin, CTR. FOR CONSUMER INFO. AND INS. OVERSIGHT,
ESSENTIAL HEALTH BENEFITS BULLETIN 8 (Dec. 2011), http://www.cms.gov/
CCIIO/Resources/Files/Downloads/essential_health_benefits_bulletin.pdf. The Administration elected not to define EHBs despite urging from a number of advocates, including the
Institute of Medicine. Committee on Defining and Revising an Essential Health Benefits
Package for Qualified Health Plans, INST. OF MED. 8-2 (Cheryl Ulmer et al. eds., 2011),
http://www.sph.umich.edu/vbidarchive/healthreform/pdfs/IOM%20EHB%20Balancing%20
Coverage%20and%20Costs.pdf.
122. Stacey A. Tovino, A Proposal for Comprehensive and Specific Essential Mental
Health and Substance Use Disorder Benefits, 38 AM. J.L. & MED. 471, 494 (2012) [hereinafter A Proposal].
123. Id. (HHS based its choice on the “largest plan by enrollment in the largest product
in the state’s small group market.”).
124. Id.
125. See Additional Information on Proposed State Essential Health Benefits Benchmark Plans, CTR. FOR CONSUMER INFO. & INS. OVERSIGHT, CTRS. FOR MEDICARE &
MEDICAID SERVS., http://www.cms.gov/CCIIO/Resources/Data-Resources/ehb.html (last visited Nov. 11, 2014); see infra Appendix A for a review of the limitations and exclusions
each state placed on their mental health and substance use disorder benefits in their benchmark plans.
