275 Enforcing Mental Health Parity 2015
whom or what will monitor and enforce this mandate is of significant importance if true coverage parity is ever to be achieved.
Read together, the ACA and MHPAEA extend health insurance coverage
to more people, expand the scope of that coverage to include MH/SU benefits, and improve the coverage provided through these benefits.181 However,
although states may be actively seeking to comply with the ACA, coverage
deficiencies still exist, even in qualified health plans that are certified for
sale on the new Exchanges.182 This is due, at least in part, to the Administration’s decision to allow states to create their own definitions of
In its final regulation implementing the MHPAEA, HHS declared that
state insurance commissioners will be the main enforcement authority and
“primary means” of enforcing the law.184 Similarly, HHS also expects states
to review potential QHPs for compliance with ACA EHBs, including MH
and SU disorder services, on all types of ACA Exchanges.185 These decisions will not result in expanded MH coverage at parity.186 Although HHS’
enforcement decisions are consistent with traditional federalist principles,187
they are at odds with the goal of properly and consistently enforcing the
MH parity mandate, as well as the views of parity advocates across the
But, there is another approach. A logical starting point for enforcement
181. See id.
182. See Grace et al., supra note 17 at 2143 (concluding that the “state-by-state benchmark plan approach” has resulted in “a state-by-state patchwork of coverage for children and
adolescents that has significant exclusions, particularly for children with developmental disabilities and other special health care needs. These findings demonstrate a missed opportunity by HHS to strengthen pediatric benefits under the ACA’s essential health benefits standard.”).
183. Id. at 1, 4 (suggesting a “solution is for the Secretary to mandate a benchmark habilitation benefit for states to follow, essentially creating a national standard of basic . . .
benefits”); see also infra Appendix A (finding broad variability in state-based benchmark
plans as to how states define, limit, and exclude mental health and substance abuse EHBs).
184. Valerie A. Canady, Final Parity Rule Opens Door to Increased Activity on Enforcement Front, MENTAL HEALTH WKLY. (Nov. 14, 2013), http://www.mentalhealth
185. See SAMHSA, supra note 99 for details about QHP compliance in FFEs.
186. See supra Part IV. B. for MHPAEA enforcement challenges.
187. See supra Part II. A. for a discussion of the state role as the primary regulator of
188. See, e.g., PATRIOTS FOR PARITY, supra note 148, at 19 (“The federal government’s
enforcement actions directly influence the level of voluntary compliance by employers and
the effectiveness of enforcement efforts by those on the ground. . . . [ A]n investment of resources at the federal level to monitor compliance with parity [is needed]. This should include a way for patients to register complaints about parity violations that will be addressed
promptly and in a meaningful way.”); Knopf, supra note 143, at 10–11; Weber, supra note 6,