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A. Obstacles to Enforcement
The difficulties in enforcing the MHPAEA begin with the language of
the law itself. Although the MHPAEA provides authority to issue regulations, it does not provide any actual framework for enforcement.138 The Act
includes a number of extremely detailed and complex provisions, which
have made complying with the law difficult for many providers.139 Even the
federal departments responsible for implementing and enforcing the law did
not comprehend the MHPAEA’s complexity until after issuing an interim
final rule.140 Making matters worse, no public record of enforcement currently exists.141 Most troubling, the DOL “requires only ‘good faith’ compliance for any potentially ‘gray areas’ in the law and regulations,” an approach that may only perpetuate the inadequate and inefficient status quo.142
Without a proper statutory framework or sufficient regulatory guidance,
many mental health advocates have become frustrated with the federal government’s enforcement efforts.143 The American Psychiatric Association
(“APA”), for example, argues that “by directing state insurance departments
to enforce the parity law, the federal government [has ceded] enforcement
authority to groups that lack the funding, the clout, and the will to do a good
job.”144 This is evidenced by the fact that as of 2011, several states declared
that they did not have the authority to enforce the federal MHPAEA.145 This
is likely the most significant factor behind the ineffective and inconsistent
parity law enforcement seen to date.146 Parity advocates further insist that
138. Weber, supra note 6, at 223.
139. MILLIMAN, INC., supra note 136, at 1; see, e.g., 29 U.S. C. A. § 1185a(a)(3)(a)
(West, WestlawNext through P.L. 113-163); 29 C.F.R. § 2590.712(c)(2) (2014).
140. See SOLIS, supra note 91, at 27 (noting that after issuing the interim final rule implementing the parity law, “the Departments realized that the complexity of the law and regulations [gave] rise to many highly technical issues and questions”).
141. Weber, supra note 6, at 230.
143. Alison Knopf, APA: Connecticut Regulators’ Deal with Anthem/WellPoint Misses
Parity Mark, 33 BEHAVIORAL HEALTHCARE 10, 10-11 (May-June 2013), available at
http://digimags.vendomegrp.com/html/BH-May-June-2013/#/12/ (discussing how the APA
hopes that the federal government will interpret the regulations in the advent of a Connecticut lawsuit); see, e.g., Weber, supra note 6, at 230 (noting that around 160 complaints have
been filed through 2011 and no public record of enforcement exists).
144. Knopf, supra note 143, at 11.
145. See Letter from Am. Psychiatric Ass’n to Ctrs. for Medicare & Medicaid Servs. 3
(Dec. 19, 2012), available at http://www.psychiatry.org/File%20Library/Advocacy%20and
Standards-Related-to-Essential-Health-Benefits.pdf (“[W]e continue to hear from states
where alleged MHPAEA violations have occurred who state they lack authority to enforce
146. See Laura Goodman, Mental Health Parity: Advocacy is Increasing State Enforcement, CMTY. CATALYST (June 2013), http://www.communitycatalyst.org/doc-
store/publications/mh-parity-state-enforcement_062013.pdf (“While several reasons contrib-