MHPAEA Enforcement Update: What Employers Should Review Now

Stephanie Hall, Associate Director Benefits Compliance

In keeping with its updated national enforcement priorities for fiscal year 2026, the U.S. Department of Labor’s (“DOL”) Employee Benefits Security Administration (“EBSA”) issued Field Assistance Bulletin (“FAB”) 2026-03 on September 8, 2026, announcing the agency’s intent to prioritize and focus enforcement of the nonquantitative treatment limitation (“NQTL”) requirements under the Mental Health Parity and Addiction Equity Act (“MHPAEA”), as amended by the Consolidated Appropriations Act, 2021 (“CAA, 2021”). An enforcement guidance tool was also posted to help plans and issuers comply with their obligations under MHPAEA, including the NQTL comparative analysis requirements.

MHPAEA requires parity between a group health plan’s M/S benefit and its MH/SUD benefits. These parity requirements apply to financial requirements and treatment limits for MH/SUD benefits. In addition, any NQTLs placed on MH/SUD benefits must comply with MHPAEA’s parity requirements. Some examples of NQTLs are medical management standards, step therapy protocols, and prescription drug formulary design. MHPAEA also requires health plans and health insurance issuers to conduct comparative analyses of the NQTLs used for MH/SUD benefits compared to M/S benefits. Plans and issuers must make their comparative analyses available upon request to the DOL, Health and Human Services, and the Treasury (collectively, the “Departments”) or applicable state authorities. On September 9, 2024, the Departments released a final rule that was intended to strengthen MHPAEA’s requirements (the “2024 Final Rule”). Among other changes, the 2024 Final Rule established minimum standards for developing comparative analyses to assess whether an NQTL, as written and in operation, complies with MHPAEA’s requirements. However, on May 15, 2025, the Departments announced a temporary nonenforcement policy for certain portions of the 2024 Final Rule. The announcement related to a lawsuit brought by the ERISA Industry Committee challenging certain provisions of the 2024 Final Rule in which the Departments filed a motion to hold the lawsuit in abeyance while they reconsider rescinding or modifying the 2024 regulation.

In the recent FAB, EBSA made it clear that it will narrow its enforcement focus areas related to NQTL comparative analyses under the statute to the following categories (and will not pursue enforcement of actions of those portions of the 2024 Final Rule that are new in relation to the 2013 Final Rule):

• Separate treatment limitations, including exclusions. Beware of blanket exclusions of treatments for covered MH/SUD conditions – enforcement efforts will be focused here.
• Medical necessity standards and review processes. Prior authorization, concurrent review, and retrospective review guidelines to make medical necessity determinations should be clear and available upon request.
• Standards for determining network adequacy with a focus on network admission standards and provider reimbursement methodologies. Look at the application process for providers, the procedures for finding an available network provider, requirements for licensed providers to bill, and whether the methodologies for calculating network or out-of-network provider reimbursement amounts are different for MH/SUD providers than for M/S providers.

In addition, EBSA issued an enforcement guidance tool to assist plans and issuers to comply with their obligations under MHPAEA. This guidance includes information on the following:

1. What to look for when reviewing a plan for potential MHPAEA NQTL compliance problems, including examples of red flags.
2. Best practices and tips for monitoring operations compliance for specific NQTLs, including looking beyond what is written in the plan documents to see how they are applied in practice.
3. Examples of how plans have addressed concerns during NQTL investigations to resolve issues and end investigation, such as decreasing the number of MH/SUD services that were subject to preauthorization.
4. Tips for plans being reviewed by the DOL for NQTL compliance, such as to expect questions about how an NQTL is applied in practice.

While this information is helpful, it should be noted that a new proposed rule is expected before the end of this year. For now, employers should use this renewed enforcement focus as a prompt to revisit MHPAEA compliance before a government inquiry or participant request arises.

Employer action items

• Make sure comparative analyses of the NQTLs for mental health or substance use disorder (“MH/SUD”) benefits compared to medical/surgical (“M/S”) benefits have been performed (in compliance with CAA, 2021 and the 2013 regulations) and can be made available upon request (general statements of compliance are insufficient).
• Review the enforcement guidance tool in conjunction with the written plan documents.
• Discuss the latest enforcement guidance with the plan’s third-party administrator (“TPA”) and other service providers, including a thorough review of the list of questions set out in the guidance tool. A good opening question is “what do you do to review for MHPAEA compliance?” – a TPA’s answer to this question should not be short.
• Be ready to provide and explain processes, strategies, evidentiary standards, and other factors used to apply NQTLs to MH/SUD benefits, as well as to M/S benefits (and that TPAs and other service providers are also ready to respond). Remember, plan participants who have received an adverse benefit determination related to MH/SUD benefits are also entitled to receive a plan’s comparative analyses upon request, not just applicable state and federal agencies.

Additional information and resources

• EBSA Enforcement Guidance Tool
• Statement by the Departments Regarding Enforcement of 2024 Final Rule
• Field Assistance Bulletin 2026-03