Enforcing Mental Health Parity Through the Affordable Care Act's Essential Health Benefit Mandate

I. INTRODUCTION In recent years, advocates for expanded mental health benefits secured two successes in fundamental coverage. 1 First, Congress enacted the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act ("MHPAEA") 2 in 2008, ushering in new, equitable insurance protections for Americans with mental health ("MH") and substance use ("SU") disorder afflictions. Second, in 2010 the Patient Protection and Affordable Care Act ("ACA") 3 expanded health insurance coverage to millions of uninsured Americans and required that any health plans sold on the newly created insurance federal and state marketplaces (the "marketplace") include mental health and substance abuse coverage as "essential health benefits ("EHB"). 4 Before the enactment of these laws, the federal government deferred to state insurance commissioners and payers on whether and how mental 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 through marketplaces. Though one in five Americans aged eighteen or older suffers from mental illness, 7 and nearly ten percent struggle ...