The U.S. Department of Labor (DOL) has provided employers and group health plans with a clearer picture of how it intends to enforce the Mental Health Parity and Addiction Equity Act (MHPAEA).
The DOL issued Field Assistance Bulletin 2026-03, outlining its current enforcement approach to the MHPAEA’s requirements for non-quantitative treatment limitations (NQTLs). At the same time, the Employee Benefits Security Administration (EBSA) released a practical enforcement guidance tool identifying common plan provisions and administrative practices that may signal potential parity problems.
This guidance is important because it follows a period of uncertainty surrounding the 2024 MHPAEA Final Rule. Although the Departments are not currently enforcing portions of that rule, the underlying MHPAEA requirements remain in effect, including the statutory requirement to perform and document comparative analyses of NQTLs.
For employers, the message is straightforward: MHPAEA compliance remains an active enforcement issue, but the EBSA has identified specific areas where it intends to concentrate its resources.
Background
In September 2024, the Departments of Labor, Health and Human Services, and the Treasury issued a final rule that made significant changes to the regulations implementing the MHPAEA. Among other provisions, the rule addressed how plans evaluate NQTLs and expanded requirements associated with NQTL comparative analyses.
The rule subsequently became the subject of litigation. In May 2025, while reconsidering the rule, the Departments announced that they would not enforce the 2024 Final Rule—or pursue enforcement actions based on failures to comply with it occurring before a final decision in the litigation plus an additional 18 months—with respect to provisions that were new compared with the 2013 Final Rule.
The Departments specifically stated that MHPAEA’s statutory requirements, including requirements added by the Consolidated Appropriations Act, 2021 (CAA), remain in effect. Among those requirements is the obligation for plans and issuers to perform and document comparative analyses regarding the design and application of NQTLs imposed on mental health and substance use disorder (MH/SUD) benefits.
EBSA Enforcement Priorities
Field Assistance Bulletin 2026-03 states that the EBSA will focus its NQTL comparative analysis enforcement resources on three categories where the agency believes there is the highest potential for significant harm to participants and beneficiaries.
1. Separate Treatment Limitations and Exclusions
The EBSA will focus on treatment limitations that apply separately to MH/SUD benefits, particularly blanket treatment exclusions.
The fact that a plan covers a particular mental health condition does not necessarily mean its treatment limitations comply with the MHPAEA. EBSA guidance identifies several examples of provisions that may raise concerns when comparable restrictions do not apply to medical/surgical benefits. These include exclusions involving:
- Applied behavioral analysis (ABA), speech therapy, or occupational therapy for autism spectrum disorder
- Medications used to treat opioid or other substance use disorders
- Nutritional counseling or medical nutrition therapy for eating disorders
- Residential treatment, intensive outpatient treatment, or partial hospitalization for MH/SUD conditions
These examples are not automatic findings of a violation. Rather, the EBSA identifies them as potential red flags warranting further review.
2. Medical Necessity Standards and Review Processes
The EBSA will examine how plans determine whether MH/SUD treatment is medically necessary and how utilization management procedures are administered. This includes prior authorization, concurrent review, and retrospective review.
For example, a potential concern may arise when prior authorization or concurrent review applies to all or nearly all MH/SUD benefits but applies to few or no medical/surgical benefits within the same benefit classification.
The agency also identifies potentially problematic differences in the way review procedures operate. For example, a plan could warrant additional scrutiny if its prior authorization system for medical/surgical benefits is largely automated while the process for MH/SUD benefits involves a more burdensome manual exchange of documents and information.
This highlights an important point for employers: compliance is not determined solely by what the plan document says.
3. Network Adequacy
The EBSA’s third priority is network adequacy, with particular attention to network admission standards and provider reimbursement methodologies.
Potential issues can arise when the processes for recruiting, admitting, or reimbursing MH/SUD providers differ from those applied to medical/surgical providers. EBSA enforcement guidance identifies potential concerns when:
- MH/SUD providers face more burdensome network admission processes.
- Participants have greater difficulty obtaining network gap exceptions for MH/SUD care.
- Provider reimbursement methodologies differ between MH/SUD and medical/surgical providers,
- Plans take steps to recruit medical/surgical providers where network shortages exist but do not make comparable efforts to address MH/SUD network gaps.
- Participants use out-of-network MH/SUD providers at substantially higher rates, potentially signaling problems with network access.
Where the EBSA identifies network adequacy parity issues, it will seek to ensure that plans and issuers consider available options to help participants obtain covered MH/SUD treatment without exposing them to out-of-network costs because the covered service is unavailable in-network.
Employers should not interpret the three priorities as a safe harbor for other NQTLs. Field Assistance Bulletin 2026-03 states that the EBSA may investigate other categories of NQTLs as issues arise, particularly in response to participant complaints. That makes participant experience an important part of an employer’s compliance review.
For example, the EBSA’s new guidance identifies disproportionate complaints about access to in-network MH/SUD providers as a potential operational red flag. Differences between written plan terms and actual claims administration can also draw scrutiny.
Recent Enforcement Shows What Is At Stake
The DOL’s 2025 MHPAEA Report to Congress, released in February 2026, provides additional context for the EBSA’s new enforcement priorities.
During the report’s enforcement period, the EBSA’s NQTL work resulted in corrections affecting more than 18 million participants across more than 39,000 group health plans. According to the report, those corrections included more than:
- 130,000 participants receiving new or expanded access to treatment for opioid use disorder
- 800,000 participants facing fewer barriers to autism spectrum disorder treatment
- 2 million participants whose plans reduced prior authorization or concurrent review requirements for MH/SUD services
- 1.8 million participants receiving easier access to nutritional counseling for eating disorders
During the reporting period, the agency issued 25 initial determination letters finding MHPAEA violations involving 43 limitations. Prior authorization and provider network admission standards were the two most frequently represented categories, with other findings involving out-of-network reimbursement, exclusions, concurrent review, fail-first policies, telehealth exclusions, and other limitations.
The report also illustrates that corrective action may extend beyond changing plan terms prospectively. Depending on the circumstances, enforcement resolutions have involved removing exclusions, changing utilization management requirements, notifying affected participants, and reprocessing previously denied claims.
A Comparative Analysis Still Matters
One of the most important takeaways from recent developments is what has not changed.
The CAA amended the MHPAEA to require group health plans and issuers that impose NQTLs on MH/SUD benefits to perform and document comparative analyses examining the design and application of those NQTLs. Those statutory requirements remain in effect despite the current nonenforcement policy concerning the new portions of the 2024 Final Rule.
The EBSA’s new guidance specifically tells plans selected for an NQTL compliance review to have their documentation ready, including coverage documents, comparative analyses, supporting documentation, and records showing monitoring activities. The agency also advises plans to be prepared to explain apparent disparities and demonstrate how an NQTL operates in practice.
In other words, obtaining a generic comparative analysis from a carrier or TPA may not end the employer’s inquiry—particularly for a self-funded plan with customized benefits or multiple vendors.
What Should Employers Ask Their Carriers and TPAs?
The EBSA’s new enforcement tool includes practical questions that plans can ask their service providers. For employers, these questions can help turn MHPAEA compliance from a document-gathering exercise into an ongoing oversight process.
Among other things, employers may want to ask their carrier, TPA, behavioral health vendor, or other applicable service provider if it:
- Has prepared comparative analyses applicable to the employer’s specific plan.
- Will provide the underlying information necessary to evaluate MHPAEA compliance.
- Monitors MH/SUD and medical/surgical claims and out-of-network utilization.
- Identifies and addresses gaps in the MH/SUD provider network.
- Uses different prior authorization or utilization review processes for MH/SUD benefits.
- Tracks participant complaints involving access to MH/SUD care.
- Will assist the plan if it becomes the subject of a federal or state parity investigation.
These questions can be particularly important for self-funded employers, where the plan sponsor may rely heavily on TPAs, network administrators, PBMs, and behavioral health vendors to administer benefits and provide the data needed to evaluate compliance.
Employer Action Items
The September 2026 guidance provides employers with a useful opportunity to reassess their MHPAEA compliance process.
- Do not treat the 2024 Final Rule’s nonenforcement policy as a suspension of the MHPAEA. The relief applies to portions of the 2024 Final Rule that are new compared with the 2013 regulations. The MHPAEA’s statutory obligations, including the CAA’s NQTL comparative analysis requirement, remain in effect.
- Confirm that required NQTL comparative analyses exist. Employers should work with their carrier, TPA, behavioral health vendor, and other applicable service providers to determine which NQTLs apply and whether appropriate comparative analyses have been prepared.
- Prioritize the same areas the EBSA is prioritizing. Review treatment exclusions, medical necessity and utilization management procedures, and network admission, adequacy, and reimbursement practices.
- Review operations, not only plan documents. A provision that appears neutral on paper can still raise a parity concern if it is administered more stringently for MH/SUD benefits. Claims practices, authorization turnaround times, denial information, out-of-network utilization, network access, and participant complaints may provide important information.
- Ask vendors for plan-specific information. Employers, particularly sponsors of self-funded plans, should understand what their service providers will supply if the EBSA requests a comparative analysis or supporting documentation.
- Document monitoring and corrective action. The EBSA’s guidance specifically points to monitoring activities and recommends that plans take and document action when reviews identify disparities or other red flags.
- Address identified problems promptly. EBSA examples show that voluntary corrections can include modifying plan provisions and administrative practices and, where appropriate, addressing prior participant harm.
This information has been prepared for UBA by Fisher & Phillips LLP. It is general information and provided for educational purposes only. It is not intended to provide legal advice. You should not act on this information without consulting legal counsel or other knowledgeable advisors.
