DOL Provides Clarity on Mental Health Parity Enforcement: What FAB 2026-03 and the New Enforcement Guidance Tool Mean for Health Plan Sponsors

The Department of Labor's Employee Benefits Security Administration (EBSA) recently released additional guidance regarding the nonquantitative treatment limitation (NQTL) comparative analysis requirements contained in the Mental Health Parity and Addiction Equity Act (MHPAEA), as amended by the 2021 Consolidated Appropriations Act (CAA). EBSA published this guidance on September 8, 2026, in the form of a Field Assistance Bulletin (FAB) No. 2026-03 and an enforcement guidance tool. Health plan sponsors are welcoming the additional guidance, which clarifies and narrows EBSA's enforcement focus areas of the NQTL comparative analyses requirements.

Background

Enacted in 2008, the MHPAEA was intended to create equality between the provision of mental health and substance use disorder (MH/SUD) benefits and medical and surgical (M/S) benefits offered by health plans.

Basically, an NQTL is a limitation on treatment that is not quantitative in nature. The NQTL comparative analysis requirements in the MHPAEA are generally meant to direct plans to compare treatment limitations on MH/SUD benefits versus limitations on M/S benefits to ensure any limitations on MH/SUD treatment are no more restrictive than limitations on M/S treatment.

In 2024, the Departments of Labor, Treasury, and Health and Human Services (the Tri-Agencies) released final regulations amending the previous 2013 regulations implementing the MHPAEA. Among other things, these regulations implemented the NQTL comparative analysis requirements under MHPAEA. For more information, please refer to our previous article regarding the 2024 final regulations.

On January 17, 2025, the ERISA Industry Committee (ERIC) sued the Tri-Agencies, arguing that parts of the 2024 final regulations are arbitrary and capricious and contrary to law. In February 2025, Executive Order 14219 ("the Order") was issued. The Order directed federal agencies to exercise enforcement discretion if, in review of their regulations, federal agencies found regulations that impose undue burdens on small businesses or private parties that are not outweighed by public benefits. Following these events, the Tri-Agencies issued a nonenforcement policy on May 15, 2025, stating that the Tri-Agencies would not enforce parts of the 2024 final regulations that added to or amended the 2013 regulations, exclusive of statutory obligations of the MHPAEA. Separately, on January 15, 2026, EBSA indicated that addressing barriers to MH/SUD benefits was one of its national enforcement priorities for fiscal year 2026.

Enforcement Priorities

The FAB and enforcement guidance tool released by EBSA provide health plan sponsors with practical guidance and plenty of examples to help clarify the parts of the NQTL comparative analysis requirements EBSA will prioritize and focus on. As discussed in the FAB, EBSA will focus enforcement on the following three categories of NQTLs, which the EBSA maintains have the highest potential for significant harm to individuals:

• Separate Treatment Limitations, Including Exclusions. Plans can impose NQTLs on treatments based on medical necessity or set standards for experimental/investigative treatments. However, generally, plans cannot establish blanket exclusions that apply to treatments for covered MH/SUD conditions, but which do not apply to similar treatments for covered M/S conditions. The enforcement guidance tool lists a real example of an NQTL investigation into a health plan's blanket exclusion of medications to treat opioid use disorder (an MH/SUD condition), which was voluntarily corrected by removing the exclusion both prospectively and retroactively.
• Medical Necessity Standards and Review Process. Plans can use proprietary clinical guidelines to help make medical necessity determinations, but the processes, strategies, and evidentiary standards used to apply the NQTLs to MH/SUD conditions must be comparable to those used to apply the NQTLs to M/S conditions. In this category, EBSA will focus on prior authorizations, concurrent review, and retrospective review, such as the real example of a health plan age limit on ABA therapy to treat autism spectrum disorder (an MH/SUD condition), while there was no similar age limit for M/S conditions.
• Standards for Determining Network Adequacy With a Focus on Network Admission Standards and Provider Reimbursement Methodologies. Since out-of-network treatment is often more expensive than in-network treatment, EBSA will ensure that plans have comparable in-network options for MH/SUD conditions as they do for M/S conditions. Assessing network adequacy includes reviewing a plan's network gaps, provider network application approvals versus denials, patient wait times, and rate-setting processes for MH/SUD conditions compared to M/S conditions. For example, higher utilization of out-of-network providers for MH/SUD conditions compared to M/S conditions may indicate network inadequacy.

Next Steps

Health plan sponsors should assess plan provisions and plan administration/operations for discrepancies in NQTL application to MH/SUD versus M/S conditions, as well as outcome data such as complaints, claim approvals versus denials, and network utilization rates. When selecting health plan service providers, health plan fiduciaries should ascertain how the provider will comply with the MHPAEA requirements and assist the plan in doing the comparative analysis.

As the enforcement guidance tool suggests, health plan sponsors should ensure they have documentation of coverage, comparative analyses, and monitoring activities ready, review comparative analyses, respond to any requests from DOL timely and thoroughly, and if concerns or violations are noted, take corrective action to address any participant harms and let the DOL know what action has been taken.

If you have any questions about EBSA's FAB No. 2026-03 and the accompanying enforcement guidance tool or compliance with the MHPAEA generally, please contact any member of Calfee's Employee Benefits and Executive Compensation practice group.

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