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efforts is the ACA’s qualified health plans and MH/SU EHBs requirements.
In order to sell QHPs on the new health insurance Exchanges, providers
must cover MH and SU disorder benefits as part of the EHB package mandated by the healthcare law.189 As a first step, HHS has the authority to revisit benchmark plans and provide a specific, standardized definition of the
MH and SU EHBs.190 Such an action is permissible under the ACA and has
been advocated for by other legal scholars.191 HHS is already charged with
performing nearly all FFE functions, including “certifying, recertifying, and
decertifying QHPs.”192 In Partnership and SBEs, ACA section 1331(f) permits “Secretarial Oversight,” requiring HHS to verify that plans participating in state marketplaces meet the requirements for program certification, as
well as the quality and performance standards under the Act.193 There is no
reason HHS cannot readily enforce the MHPAEA through the Exchanges.
Enforcement of the parity law should begin with HHS and then proceed
concurrently with both federal and state involvement. Restrictions on federal involvement in the enforcement of national policy can lead to the uneven
state implementation of national priorities and the existence of unfunded
mandates.194 This is particularly true when state insurance departments are
involved because many of them lack sufficient staff and funding to properly
carry out basic regulatory functions.195 Additionally, federal authorities can
more consistently enforce the parity law’s mandate, crafting a more coherent compliance policy than disjointed and fragmented state actors.196 Federal enforcement can also lead to increased visibility, awareness, and greater
In our own review of all fifty state benchmark plans, included in Appendix A, we examined MH inpatient and outpatient benefits, as well as SU
disorder inpatient and outpatient benefits. From state to state, we found
broad variability in how plans defined and limited their benefits. States also
placed a variety of different exclusions on these benefits, sometimes denying coverage for underlying conditions. As part of its initial enforcement
189. PPACA, 42 U.S. C. §18022 (West, Westlaw through P.L. 113-174 approved Sept.
190. 78 Fed. Reg. 12834, 12841 (Feb. 35, 2013) (to be codified at 45 C.F.R. pts. 147,
155, & 156) (describing HHS’s plans to ensure EHB and benchmark plan compliance, along
with its intention to revisit aspects of its policy for later benefit years).
191. See, e.g., Tovino, A Proposal, supra note 122, at 514 (proposing “that HHS consider adopting a comprehensive essential mental health and substance use disorder benefit”).
192. See CORNERSTONE GROUP, supra note 132.
193. PPACA, Pub. L. No. 111-148, § 1332(f), 124 Stat. 203 (codified at 42 U.S. C. §
194. See supra Part IV. A. discussing enforcement of the MHPAEA.
195. Randall, supra note 47, at 699.
196. Rose, supra note 26, at 1361.
197. PATRIO TS FOR PARITY, supra note 148, at 17.