253 Enforcing Mental Health Parity 2015
health benefits would be covered in commercial insurance plans.5 Despite
these unprecedented legislative successes, to date there has been little recorded oversight or enforcement of either parity law.6 This article exposes
this problem and proposes a solution using the new mental health benefit
under the ACA. Specifically, because the federal government is jointly enforcing the ACA with states (in contrast to MHPAEA, which is delegated
largely to states), we suggest that the enforcement of mental health parity
should focus on the mental health benefit required through plans sold
Though one in five Americans aged eighteen or older suffers from mental illness,7 and nearly ten percent struggle with some form of alcohol use
disorder or drug addiction,8 health insurance coverage for these candidates
is limited.9 Access to proper mental health treatment has been difficult and
expensive to obtain,10 in part because health insurers have historically limited these benefits.11 As a result, some states responded with laws and regulations intended to ensure equitable MH and SU coverage for their citi-
5. See Nat’l Conf. of State Legs., State Laws Mandating or Regulating Mental Health
(last updated Jan. 2014)
(noting that many private insurers provided inadequate or no mental health benefits and
“[t]he law [MHPAEA], the new rules and provisions of Obamacare [ACA] combined will
ensure mental and physical illness would be covered similarly.”).
6. Ellen Weber, Equality Standards for Health Insurance Coverage: Will the Mental
Health Parity and Addiction Equity Act End the Discrimination?, 43 GOLDEN GATE U. L.
REV. 179, 230 (2013).
7. SUBSTANCE ABUSE & MENTAL HEALTH SERVS. ADMIN., U.S. DEP’T OF HEALTH &
HUM.SERVS. RESULTS FROM THE2010NATIONALSURVEY ONDRUGUSE ANDHEALTH:
MENTAL HEALTH FINDINGS 7 (Jan. 2012), available at http://www.samhsa.gov
8. See NAT’L. INST. ON ALCOHOL ABUSE & ALCOHOLISM, U.S. DEP’T OF HEALTH & HUM.
SERVS., ALCOHOL AND OTHER DRUGS 1 (July 2008), available at http://pubs
9. See Colleen L. Barry et al., A Political History of Federal Mental Health and Addiction Insurance Parity, 88 MILBANK Q. 404, 405 (2010); See PARITY IMPLEMENTATION
COALITION, PARITY TOOLKIT FOR ADDICTION & MENTAL HEALTH CONSUMERS, PROVIDERS &
ADVOCATES (1st ed. Sept. 2010), available at http://parityispersonal.org/sites/default/
10. SUBSTANCE ABUSE & MENTAL HEALTH SERVS. ADMIN., U.S. DEP’T OFHEALTH &
HUM. SERVS., AFFORDABILITY MOST FREQUENT REASON FOR NOT RECEIVING MENTAL
HEALTH SERVICES (Sept. 24, 2013), available at http://www.samhsa.gov/data/sites/default
that “cost/insurance issues (e.g., not being able to afford care or lacking insurance coverage)
were the most frequently mentioned reasons for not receiving mental health services”).
11. PARITY IMPLEMENTATION COALITION, supra note 9, at 6 (“Most Americans with
health insurance face greater barriers in accessing services for mental illness and addiction
than they face for accessing care for other medical conditions. The majority of health plans
impose higher out of pocket spending requirements and more restrictive treatment limitations on addiction and mental health benefits.”).