Mental Health Parity Bulletin Restates Best Practices for Evaluating Compliance

On September 8, 2026, the U.S. Department of Labor's (DOL) Employee Benefits Security Administration (EBSA) issued “Field Assistance Bulletin No. 2026-03” to clarify compliance with the Mental Health Parity and Addiction Equity Act (MHPAEA) and nonquantitative treatment limitations (NQTL). Under the 2013 final rule implementing MHPAEA, health plans and issuers must use comparable processes, strategies, evidentiary standards, or other factors when applying NQTLs and they cannot apply such methods more stringently to benefits for mental health and substance use disorder (MH/SUD) compared to benefits for general medical and surgical care. While the bulletin doesn’t break much new ground on compliance, it does reaffirm existing enforcement priorities and expectations. 

Also on September 8, EBSA issued an enforcement guidance tool, “Identifying Potential Problems: If You See the Following in Written Plan Provisions or Plan Operations, Think Twice about Possible MHPAEA Compliance Problems”. Like the bulletin, the tool does not offer any specific guidance on the content of NQTL comparative analyses or standards for MHPAEA compliance. However, it does provide a list of questions that EBSA might consider when reviewing an NQTL analysis. Those questions could be used by health plans and issuers as a checklist for evaluating MHPAEA compliance. It also highlights what could be seen as red flags regarding potential noncompliance (e.g., complaints about unfair claim denials, exclusion of specific services for certain conditions, longer timelines to obtain prior authorization review). The tool also offers some insight into how past alleged MHPAEA violations were addressed. 

EBSA is currently working on a new MHPAEA rule; the bulletin and enforcement-guidance tool preview what the forthcoming proposed rule is likely to include. In May 2025, the DOL, the U.S. Department of Health and Human Services (HHS), and the U.S. Department of Treasury (USDT (together, the Tri-Agencies) released a Statement of Nonenforcement on the 2024 MHPAEA final rule, indicating that they would either rescind or modify those rules in light of litigation brought by the ERISA Industry Committee (ERIC). The new rule is expected by the end of 2026. Stakeholders have urged EBSA to clarify the law’s comparative analysis requirements, which have caused some confusion. In the meantime, EBSA and the Tri-Agencies have actively continued their enforcement of MHPAEA under the foundational principles included in the 2013 rule. As a result, health plans and issuers have been left without clear guidance regarding the applicable standard for compliance and NQTL comparative analyses. 

EBSA’s Three Enforcement Priorities  

In both the bulletin and the enforcement guidance tool, EBSA emphasizes that it will prioritize enforcement in three areas where the potential for significant harm to participants and beneficiaries is the highest: 

1. Blanket Treatment Exclusions: EBSA warns that health plans and issuers cannot apply blanket exclusions of treatments for covered MH/SUD conditions where similar treatments are covered for medical/surgical conditions. EBSA intends to focus its resources on cases involving blanket treatment exclusions applicable only to MH/SUD benefits, but may also address more limited exclusions, especially in response to complaints.
2. Medical Necessity Standards and Prior Authorization: EBSA says it will focus on utilization management processes, such as prior authorization, concurrent review, and retrospective review. Specifically, EBSA will evaluate whether the processes, strategies, evidentiary standards, and other factors used to apply those NQTLs to MH/SUD benefits are comparable to — and applied no more stringently than — those used for medical/surgical benefits. EBSA indicates that it intends to evaluate every step of the utilization-management process, not just at the point of initial coverage determination. It also specifically notes that clinical guidelines, including external clinical criteria, must be provided to EBSA upon request. 
3. Network Adequacy: EBSA continues to focus on network adequacy through review of the NQTLs focused on network admissions standards and provider reimbursement methodologies. EBSA notes that those two levers, when applied more stringently for MH/SUD providers than for medical/surgical providers, can impact mental health coverage.  

The three priority areas outlined in this bulletin align with the priorities set forth in the Report to Congress earlier this year and with the Tri-Agencies’ active enforcement activities. Notably, the bulletin suggests that the Tri-Agencies will not focus on other common NQTLs, such as pharmacy formularies. Given that regulators are signaling continued focus on these other categories, EBSA’s forthcoming notice of proposed rulemaking may try to sharpen the regulatory requirements in precisely those areas. EBSA noted, however, that it will continue to investigate other categories of NQTLs “as issues arise, particularly when responding to participant complaints.” 

Although EBSA sets out "best practices," it stops short of designating those practices as mandatory compliance requirements. Of particular concern is the reference to taking corrective action to address "disparities" that do not themselves constitute a violation of the NQTL rules. No basis exists for such a requirement under the 2013 NQTL rules.  

Notable Features of the Enforcement Tool 

While the enforcement guidance tool doesn’t provide new insight into MHPAEA compliance standards, it can be used by health plans and issuers as a roadmap to help ensure they are evaluating appropriate areas and checking all the right boxes. The tool includes two particularly notable features.  

1. A series of questions that EBSA recommends health plan fiduciaries ask when evaluating existing and prospective service providers (e.g., third-party administrators, managed behavioral health organizations, and network administrators) to ensure that the benefits those providers administer comply with MHPAEA. These questions cover topics such as whether the service provider will share MHPAEA-specific compliance reports, whether it will assist in preparing NQTL comparative analyses specific to the plan, whether it will provide periodic data reports on MH/SUD claim trends and out-of-network utilization, and whether it will provide support if the plan is the subject of a state or federal parity investigation. 
2. Guidance, organized around EBSA’s three enforcement-priority areas. This includes best practices that health plans and issuers should follow when evaluating whether an NQTL is in parity. For medical necessity standards and review processes, the tool advises plans to compare the scope of benefits subject to prior authorization and concurrent review for MH/SUD versus medical/surgical benefits. They should also review the burden of the claims submission process, track and respond to participant complaints, compare penalties for failure to obtain prior authorization, and periodically review data on how prior authorization is applied in practice. The tool also directs plans to monitor out-of-network utilization trends, review policies and data on out-of-network exceptions, track participant complaints relating to provider access, and assess their network administrator’s process for evaluating network sufficiency. 

In addition, the tool highlights a set of “red flags”— pulled from actual EBSA investigations — that could signal potential MHPAEA compliance problems. Examples of how some of those issues were resolved are also part of the tool. These measures include expanding telehealth and network gap policies to address network adequacy parity concerns, reducing the number of MH/SUD services subject to blanket preauthorization, extending auto-approval systems to MH/SUD services, and removing ABA therapy and medication exclusions both prospectively and retroactively. 

A More Targeted, Streamlined Approach 

 The bulletin and enforcement tool suggest that EBSA is pivoting toward a narrower MHPAEA-enforcement focus, in line with the messaging in the Report to Congress earlier this year. EBSA states that this approach is meant to reduce compliance burdens and provide clarity for health plans and issuers on how to meet the NQTL requirements. However, a narrower focus should not be read as a green light to let compliance standards slip, particularly given the aggressive and rising enforcement activity occurring at the state level and continued MHPAEA litigation efforts by the ERISA plaintiffs’ bar.  

By merely reiterating the existing areas of focus and providing only a checklist of questions and potential red flags, EBSA’s bulletin and enforcement tool miss the opportunity to provide long-awaited guidance on what a compliant NQTL analysis should look like. It remains to be seen if the proposed rule, expected later this year, will contain additional detail. 

For in-house counsel at health plans, and for benefits professionals administering self-funded plans, the practical takeaway is this: review your coverage policies, operational policies, and comparative analyses to ensure that the questions in EBSA’s compliance tool are addressed, to the extent they apply, and for any “red flags,” particularly in the areas of focus identified in the bulletin. While the bulletin and enforcement tool do not establish a standard for parity compliance, they do give key insights into the questions that plans should be asking to ensure their practices stand up to scrutiny.