269 Enforcing Mental Health Parity 2015
including “certifying, recertifying, and decertifying QHPs,” as well as determining individual eligibility for enrollment, and other related tasks.132
CMS has provided detailed guidance on its QHP application, review, and
certification process for coverage providers wishing to offer plans through
FFEs in 2015.133 After certification, issuers may be subject to HHS compliance reviews to ensure ongoing compliance with Exchange standards.134
However, CMS will not ensure QHP compliance with state law and expects
states to review potential QHPs for compliance with ACA market-wide
standards, including the important EHBs.135
IV. MHPAEA ENFORCEMENT TO DATE
Although the MHPAEA was passed two years before the ACA, implementation and enforcement of its provisions have been slow, and to a large
extent, overshadowed by the breadth of the ACA’s changes. This is not surprising since the MHPAEA is considerably lesser known.136 Even Patrick J.
Kennedy, one of the congressional leaders who pushed the MHPAEA
through Congress, acknowledged that the fight for parity has been somewhat “pushed aside in the larger healthcare battle.”137 Moreover, the final
rule implementing the MHPAEA was not issued until late 2013. This section describes the limited MHPAEA enforcement that has taken place to
health insurance Exchange in their state may help manage a Partnership-based Exchange
(PBE). See Ctr. for Consumer Info. and Ins. Oversight, Affordable Insurance Exchanges
Guidance: Guidance on the State Partnership Exchange, CTRS. FOR MEDICARE & MEDICAID
SERVS. 3 (Jan. 3, 2013), http://www.cms.gov/CCIIO/Resources/Fact-Sheets-and-FAQs/
Downloads/partnership-guidance-01-03-2013.pdf. Under this hybrid model, states assume
primary responsibility for carrying out certain Exchange functions of the FFE in their state,
including plan management, QHP certification, consumer assistance, and public outreach. Id.
at 3-4. A PBE “enables a state to be actively involved in Exchange operations, continue to
play a primary role in interacting with issuers and consumers in the state, and make recommendations as to how local market factors should inform the implementation of Exchange
standards.” Id. at 3. HHS expects that states operating PBEs will eventually operate their
own SBE, independent of federal authority. See id.
132. HHS Releases Guidance on Exchanges, Including Draft Exchange Blueprint and
Rules for Federally Facilitated Exchanges and SHOPs, CORNERSTONE GROUP (June 4,
133. See id.
134. 45 C.F.R. § 156.715(a) (2013).
135. Letter from CCIIO, Ctrs. for Medicare & Medicaid Servs. to Issuers in the Federally-facilitated Marketplace, supra note 127, at 9.
136. See, e.g., Employer Guide for Compliance with the Mental Health Parity and Addiction Equity Act, MILLIMAN, INC., P’SHIP FOR WORKPLACE MENTAL HEALTH 3 (Dec. 2012),
http://www.workplacementalhealth.org/erguide (finding that “many employers have limited
knowledge of the details of MHPAEA requirements”).
137. Patrick J. Kennedy, Former U.S. Congressman, Discussion at the University of
Pennsylvania Law School: How the Parity Law Will Transform Substance Abuse and Mental Healthcare (June 3, 2014), available at http://www.youtube.com/watch?v=bkfyK1ojRbw.