US Department of Labor Clarifies Mental Health Parity Enforcement Focus

The US Department of Labor’s recent bulletin updates the Employee Benefits Security Administration’s enforcement priorities for nonquantitative treatment limitations under the Mental Health Parity and Addiction Equity Act.

The US Department of Labor’s (Department) Employee Benefits Security Administration (EBSA) issued Field Assistance Bulletin No. 2026-03 (FAB) on September 8, 2026, providing additional clarity on how EBSA intends to enforce the Mental Health Parity and Addiction Equity Act (MHPAEA), particularly relating to nonquantitative treatment limitation (NQTL) requirements.

The FAB follows the Department’s January 15, 2026 announcement identifying barriers to mental health and substance use disorder (MH/SUD) benefits as a national enforcement priority for 2026. This new guidance is issued against the backdrop of ongoing litigation challenging the Department’s September 23, 2024 final rule, which imposed new requirements related to NQTLs. 

That litigation ultimately led the US Departments of Labor, Health and Human Services, and the Treasury (Departments) to announce a temporary nonenforcement policy on May 15, 2025. Under that policy, the Departments will not enforce provisions of the 2024 final rule that are new relative to the 2013 final rule for failures to comply occurring before a final decision in the litigation, plus an additional 18 months. MHPAEA’s statutory obligations, however, including the NQTL comparative analysis requirements added by the Consolidated Appropriations Act, 2021 (CAA 2021), remain in effect.

 The FAB gives plan sponsors a clearer picture of where EBSA is likely to focus its attention. Specifically, EBSA states that it will narrow its enforcement focus relating to requests for NQTL comparative analyses and identifies three categories in which it believes there is the highest potential for significant harm to participants and beneficiaries: (1) separate treatment limitations and exclusions, (2) medical necessity standards and review processes, and (3) standards for determining network adequacy, with a focus on network admission standards and provider reimbursement methodologies:

1. Separate Treatment Limitations and Exclusions: EBSA will prioritize cases where the plan imposes a blanket exclusion or separate treatment limitation for MH/SUD benefits without imposing a comparable exclusion or limitation on medical/surgical benefits. EBSA may also address more limited exclusions, particularly in response to participant complaints. For plan sponsors, this means looking beyond whether the plan document technically covers mental health and substance use disorder treatment. Sponsors should identify exclusions and limitations that apply to particular MH/SUD treatments, services, or conditions and determine whether those exclusions or limitations are applied separately to MH/SUD benefits or otherwise raise parity concerns when compared with the treatment of medical/surgical benefits.
2. Medical Necessity Standards and Review Processes: EBSA will focus on prior authorization, concurrent review, retrospective review processes, and disclosure of clinical guidelines when requested by participants. While plans may use proprietary clinical guidelines for medical necessity determinations, the processes, strategies, evidentiary standards, and other factors used to apply those NQTLs to MH/SUD benefits must be comparable to, and applied no more stringently than, those used for medical/surgical benefits. Applicable clinical guidelines also must be made available upon request during EBSA NQTL investigations and to participants and beneficiaries upon request. Plan sponsors should understand how their third-party administrators and behavioral health vendors actually make coverage decisions. That includes identifying which services require prior authorization, how frequently ongoing treatment is reviewed, what criteria are used to determine medical necessity, how long reviews take, and whether those requirements differ between MH/SUD and medical/surgical care. Sponsors should also confirm that third-party administrators can produce applicable clinical guidelines and review criteria when required.
3. Standards for Determining Network Adequacy: EBSA is targeting enforcement of network admission standards and provider reimbursement methodologies that may limit in-network access to MH/SUD care. Insufficient MH/SUD provider networks can force participants to seek costly out-of-network care or forego treatment, raising potential parity concerns. The FAB also indicates that, where network adequacy parity issues exist, EBSA will expect plans and issuers to consider available options and assist participants seeking covered MH/SUD treatment without exposing them to out-of-network costs because of the lack of availability of a covered MH/SUD service in network. For plan sponsors, network adequacy therefore should involve more than reviewing the number of providers listed in a directory. Sponsors should work with their third-party administrators to understand whether participants can actually obtain appointments with appropriate MH/SUD providers on a timely basis and what processes are available when covered in-network care cannot be obtained. Relevant information may include geographic coverage, appointment availability and wait times, provider participation and reimbursement practices, out-of-network utilization, participant complaints, and the availability of network-gap exceptions or similar accommodations. These indicators may reveal access issues that are not apparent from provider directories alone.

PLAN SPONSOR NEXT STEPS

Although the FAB provides welcome clarity by identifying EBSA’s principal enforcement priorities, it does not eliminate plan sponsors’ broader MHPAEA obligations. EBSA may continue to investigate other NQTL categories as issues arise, particularly in response to participant complaints.

Plan sponsors should use the FAB to focus their compliance efforts on the areas EBSA has identified as presenting the greatest potential for participant harm, including through the following:

• Reviewing plan terms and exclusions: Review benefit designs for blanket exclusions or separate treatment limitations that apply to MH/SUD benefits and assess whether those provisions comply with MHPAEA’s parity requirements.
• Working with third-party administrators for details behind utilization management: Confirm that the processes, strategies, evidentiary standards, and other factors used for medical necessity determinations, prior authorization, and utilization review for MH/SUD benefits are comparable to and applied no more stringently than those used for medical/surgical benefits. Plan sponsors must also be prepared to provide clinical guidelines and review criteria upon request.This review should consider not only written policies but also how those policies are applied in operation, including review frequency, documentation requirements, turnaround times, and denial rates.
• Reviewing MH/SUD network:Review MH/SUD network practices and access indicators. Review the standards and processes used to develop and maintain MH/SUD provider networks, including network admission standards and provider reimbursement methodologies. Sponsors should also consider operational indicators of potential access disparities, including appointment wait times, out-of-network utilization, participant complaints, provider recruitment and participation, and the use of network-gap exceptions or similar accommodations.
• Revisiting existing NQTL comparative analyses with third-party administrators: Determine whether existing comparative analyses accurately reflect current plan terms and the actual operations and processes being applied by the third-party administrator and other service providers. Where the analysis relies on data, sponsors should confirm that the data remains current and is sufficiently detailed to support the analysis.

EBSA has also released an online enforcement guidance tool designed to help group health plans and issuers identify potential MHPAEA compliance problems and comply with the NQTL requirements. The tool provides practical examples of issues that may arise both in written plan terms and plan operations and identifies practices that plans can use to monitor compliance. It also identifies questions that plan fiduciaries may want to ask existing and prospective service providers regarding MHPAEA compliance. Plan sponsors may want to use the tool as a practical checklist when reviewing their NQTL comparative analyses and working with third-party administrators, managed behavioral health organizations, network administrators, and other service providers on plan design and administration.

LOOKING AHEAD

The FAB gives plan sponsors a more focused picture of EBSA’s immediate enforcement priorities, but it should be viewed as part of a broader transition in the MHPAEA regulatory landscape. The Departments have indicated that they are reexamining their approach to MHPAEA, and EBSA’s current regulatory agenda contemplates a new proposed rule. The proposed rule is currently targeted for release in December 2026, although the timing may change.

In the meantime, plan sponsors should continue to comply with MHPAEA’s statutory requirements, including the CAA 2021 comparative analysis requirements, while focusing compliance efforts on the areas EBSA has identified as presenting the greatest potential for participant harm. The FAB and accompanying enforcement guidance give sponsors a more practical framework for doing so, but further changes may be forthcoming.