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likely to be ineffective and costly, and will lead to inconsistent and fragmented results.174 Many advocates have complained that the lack of proper
federal enforcement jeopardizes the very existence of the parity law it-
V. A NEW APPROACH: ENFORCING MHPAEA THROUGH ACA’S EHB
Current MHPAEA enforcement efforts returned mixed results at best.176
A glaring weakness of the law is its failure to require providers to cover
mental health services or offer any definition of mental health coverage
standards.177 This deficiency is not present in plans offered through marketplaces because QHPs must cover mental health benefits under the ACA.178
Accordingly, all QHPs must also comply with the MHPAEA’s parity man-
date.179 The result of this is that the ACA and MHPAEA interact to convert
the MHPAEA’s weak mandate into an actual, enforceable mandate for most
insurance plans.180 Given the potential impact of this new coverage-parity
mandate on Americans struggling with MH/SU illnesses, the question of
174. See supra Part III. B. and accompanying text for information about the MHPAEA’s
complicated statutory framework and implementing regulations.
175. See Weber, supra note 6, at 232.
176. See supra Part IV. B. for a discussion of the difficulties of MHPAEA enforcement
and efforts so far.
177. Kessler, supra note 19, at 153-54.
178. PPACA, Pub L. No. 111-148 § 1311(j), 124 Stat. 181 (codified at 42 U.S. C. §
18031); see also Tovino, supra note 19, at 40 (“The dramatic effect of this provision is to
expand application of [the MHPAEA] from just large group health plans to all qualified
health plans offered on one of the new ACA-created state or regional health insurance exchanges.”). The MHPAEA’s parity mandate is also extended to: non-exchange individual
health plans, non-exchange small group health plans, Medicaid benchmark plans, benchmark
equivalent plan, and the Medicaid state plan. See id. at 40, 48.
179. See, e.g., Amanda K. Sarata, Mental Health Parity and the Patient Protection and
Affordable Care Act, CONG. RESEARCH SERV. 4 (Dec. 28, 2011), http://www.ncsl.org
/documents/health/MHparity&mandates.pdf (noting that “the ACA expands the reach of federal mental health parity law to . . . qualified health plans (QHPs), as established by the
ACA”). The National Association of Insurance Commissioners also recognized the new and
dramatic effect of the ACA and MHPAEA’s interaction:
Section 1311(j) of the ACA states ‘Section 2726 of the Public Health Service Act
(PHSA) shall apply to QHPs in the same manner and to the same extent as such
section applies to health insurance issuers and group health plans.’ In turn, Section 2726 of the PHSA applies to a ‘group health plan or a health insurance issuer
offering group or individual health insurance coverage.’ Therefore, the requirements of the MHPAEA must be applied to all plans of health insurance coverage
whether issued inside and outside of the Exchange, to an individual or through an
NAT’L ASS’N OF INS. COMM’RS, supra note 13, at 10.
180. Kessler, supra note 19, at 159.