Vol. 24 Annals of Health Law 268
Thus, each year, the Marketplaces will offer QHPs for each state that
provides EHBs including MH and SU disorders. Thus, an initial step in enforcing the MH and SU benefits required under the ACA is ensuring that
QHPs offered through marketplaces offer complete and comprehensive
coverage consistent with EHB requirements.
The type of marketplace in effect in each state dictates which entity bears
the responsibility of certifying and monitoring QHPs. One option is for
states to offer QHPs through the establishment and operation of their own
State-based Exchange (“SBE”). In SBEs, state authorities are generally responsible for monitoring QHPs and enforcing ACA compliance.127 This
complies with Title XXVII of the PHSA, which provides that states have
primary enforcement authority in local health insurance markets.128 However, even with SBEs, the federal government maintains compliance authority. Section 1331(f) of the ACA calls for “Secretarial Oversight,” which requires HHS to review state programs for compliance with the ACA,
including verifying that participating plans meet the requirements for program certification, as well as the quality and performance standards under
the Act.129 Federal regulations go further, requiring states to: keep an accurate accounting of Exchange receipts and expenditures; monitor and report
to HHS on exchange-related activities; collect and report to HHS performance monitoring data; and at least annually, provide HHS with financial
statements, eligibility and enrollment reports, and performance monitoring
In contrast, the federal government will establish and operate Federally-facilitated Exchanges (“FFE”) for states that do not establish their own
SBE.131 CMS is responsible for nearly all FFE functions under this model,
126. PPACA, Pub. L. No. 111-148, §1301, 124 Stat. 162 (codified at 42 U.S. C. §
18021) (emphasis added).
127. See Letter from Ctr. for Consumer Info. & Ins. Oversight, Ctrs. for Medicare &
Medicaid Servs. to Issuers in the Federally-facilitated Marketplaces 6 (Mar. 14, 2014),
issuer-letter-3-14-2014.pdf (noting that SBEs “will conduct their own reviews for QHP-specific standards”).
128. Public Health Services Act, 42 U.S. C. A. § 300gg-22 (West, Westlaw through P.L.
113-174 approved Sept. 26, 2014); see also Compliance, CTR. FOR CONSUMER INFO. AND INS.
OVERSIGHT, CTRS. FOR MEDICARE & MEDICAID SERVS. (Jan. 1, 2014), http://www.cms.gov/
(“[S]tates are to exercise primary enforcement authority over health insurance issuers in the
group and individual markets to ensure compliance with health insurance market reforms.”).
129. PPACA, Pub. L. No. 111-148, § 1332(f), 124 Stat. 203 (codified at 42 U.S. C. §
130. 45 C.F.R. § 155.1200 (2013).
131. 42 U.S. C. A. § 18041 (West, Westlaw through P.L. 113-174 approved Sept. 26,
2014). States that elect not to establish an SBE, but still want a role in the operation of the