On September 8, 2026, the Department of Labor's (DOL) Employee Benefits Security Administration (EBSA) released Field Assistance Bulletin No. 2026-03 outlining the DOL's enforcement approach and priorities as it relates to the Mental Health Parity and Addiction Equity Act's (MHPAEA) nonquantitative treatment limitation (NQTL) requirements. Bulletin 2026-03 derives from the DOL's January 15, 2026 release of its national enforcement priorities for fiscal year 2026, which emphasized a focus on addressing barriers to mental health and substance use disorder (MH/SUD) benefits and services. As detailed further below, the DOL will focus its priorities on the enforcement of the following three areas as they relate to the MHPAEA NQTL comparative analysis: (1) separate treatment limitations, including exclusions; (2) medical necessity standards and review process; and (3) standards around network adequacy.
The MHPAEA has been around since 2008 but has been shaped over the years by final rules, the Consolidated Appropriations Act (CAA) 2021, FAQs, and case law. Notably, the CAA 2021 amended MHPAEA to require group health plans and insurers to document and perform a comparative analysis of NQTLs under the plan to determine whether a plan's design and application of NQTLs are applied more stringently on MH/SUD benefits as compared to medical/surgical (M/S) benefits. More recently, on September 23, 2024, the Departments published final rules that aimed to provide more clearly defined standards for ensuring NQTLs were not applied more stringently to MH/SUD benefits as compared to M/S benefits, including establishing additional content requirements for NQTL comparative analyses. However, the 2024 MHPAEA final rules were suspended after the ERISA Industry Committee (ERIC) filed a lawsuit against the federal government in 2024, challenging the legality of the 2024 MHPAEA final rules. Thereafter, in May of 2026, the Departments filed a joint status report with the U.S. District Court disclosing that the Departments will no longer defend the 2024 MHPAEA Final Rules, and indicating that the Departments intend to issue new rulemaking by December 31, 2026.
Although the 2024 MHPAEA final rules are not being enforced, the statutory provisions, the 2013 MHPAEA Final Rules, and the CAA, 2021 amendments made to MHPAEA are still in effect. This means that plan sponsors are still subject to the statutory requirement to perform an NQTL comparative analysis, and the Departments, participants, and beneficiaries may still request a health plan's NQTL comparative analysis.
Bulletin 2026-03 illustrates the DOL's enforcement priority of three specific areas as they relate to the MHPAEA NQTL comparative analysis requirement, which in the DOL's opinion are areas with the highest potential for harm to participants and beneficiaries as it relates to access to MH/SUD benefits or services. As a reminder, field assistance bulletins are a means by which the DOL provides internal guidance on how they would enforce the rules, but these bulletins are not intended to create or directly impose new requirements on employer plan sponsors. Bulletin 2026-03 describes these three separate enforcement priorities in the following way (quoted directly from the Bulletin itself):
Separate treatment limitations, including exclusions. While plans and issuers can impose NQTLs based on medical necessity or set standards for experimental/investigative treatments, in general they cannot apply blanket exclusions of treatments for covered MH/SUD conditions, where similar treatments are covered for medical/surgical conditions. EBSA will 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.
Medical necessity standards and review process. In this category, EBSA will focus its resources on prior authorization, concurrent review, and retrospective review. Under MHPAEA, nothing specifically prohibits plans and issuers from using proprietary clinical guidelines to help make medical necessity determinations, as long as the processes, strategies, evidentiary standards, and other factors used to apply such NQTLs to MH/SUD benefits are comparable to, and are applied no more stringently than, the processes, strategies, evidentiary standards, and other factors used to apply the NQTLs to medical/surgical benefits. However, plans, issuers, and their health plan service providers must make these guidelines available upon request during EBSA's NQTL investigations and to participants and beneficiaries upon request.
Standards for determining network adequacy with a focus on network admission standards and provider reimbursement methodologies. When participants and beneficiaries cannot find MH/SUD treatment in-network, they must choose to either go out-of-network for MH/SUD care or forgo MH/SUD treatment altogether. Because out-of-network care typically comes with higher out-of-pocket costs for participants and beneficiaries, an inadequate network can be a significant barrier to obtaining MH/SUD treatment. Where there are network adequacy parity issues, EBSA will ensure that plans and issuers consider all available options and assist participants and beneficiaries seeking covered MH/SUD treatments without exposing such participants and beneficiaries to out-of-network costs due to the lack of availability of a covered MH/SUD service in-network.
The DOL has also released an enforcement guidance tool to assist employer plan sponsors and insurers in better understanding their compliance obligations under the MHPAEA NQTL comparative analysis requirement.
Field Assistance Bulletin 2026-03 does not impose new MHPAEA requirements on employer plan sponsors but rather highlights the areas where the DOL will focus its efforts to enforce the requirements under MHPAEA. The bulletin serves as a timely reminder that despite the nonenforcement of the 2024 MHPAEA final rules, many of the MHPAEA rules are still in place, including the requirement for employer plan sponsors to complete an NQTL comparative analysis. Employer plan sponsors should continue to work with a MHPAEA vendor and/or legal counsel to have an NQTL comparative analysis completed on their group health plan(s), especially when significant changes to MH/SUD benefits under the plan(s) occur. Further, employer plan sponsors should review and adjust any potential violations they may have within the plan under the MHPAEA rules, especially if those violations occur within the three above-mentioned focus areas of DOL enforcement under the Field Assistance Bulletin 2026-03.
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