Employers should review benefits given new mental health parity guidance 

The US Department of Labor sharpened its focus on access to behavioral health in recently released guidance. The guidance, announced in Field Assistance Bulletin 2026-03, gives meaningful insight, with practical tips, into how the DOL currently expects group health plans to manage their compliance obligations under the Mental Health Parity and Addiction Equity Act.

Many plan sponsors may be in a holding pattern with their comparative analyses for nonquantitative treatment limitations, awaiting new regulations that likely will take some time to be finalized. In the interim, plan sponsors should thoroughly review their group health plans and policies through the lens of this new guidance and be prepared to make adjustments, particularly if the plan has a nonquantitative treatment limitation (NQTL) that is limiting access to mental health/substance use disorder benefits.

Regulators used the FAB to narrow its enforcement focus for requests for NQTL comparative analyses to the following three categories:

• Treatment exclusions: Regulators will focus enforcement resources on cases where plans impose blanket treatment exclusions for treatments of covered Mental Health/Substance Use Disorder conditions where similar treatments are covered for Medical/Surgical conditions and may also address more limited exclusions in response to complaints from plan participants.
• Medical necessity standards and review process: Regulators also will prioritize prior authorization, concurrent review, and retrospective review standards and processes as an area of enforcement focus to ensure that clinical guidelines used to make medical necessity determinations for MH/SUD benefits are comparable to, and are applied no more stringently than, the clinical guidelines used to make medical necessity determinations for M/S benefits.
• Network adequacy and provider reimbursement methodologies: The agency will also focus on enforcing standards for determining network adequacy, with an emphasis on network admission standards and provider reimbursement methodologies. When network adequacy parity issues exist, DOL will ensure that plans and issuers consider all available options to assist participants seeking covered MH/SUD treatments without exposing such participants to out-of-network costs.

While enforcement priorities will target these three areas, regulators emphasized that they remain committed to protecting access to behavioral health benefits, and they will continue to investigate other NQTLs, particularly in response to participant complaints.

The DOL also reiterated that they will not pursue enforcement actions related to portions of a  2024 final rule that amended a 2013 final rule. The 2024 final rule was widely criticized by employer groups for imposing overly complex and burdensome NQTL comparative analysis requirements. In May 2025, federal agencies signaled a change in course from the Biden administration by announcing they would not enforce the Biden-era 2024 final rule. The following year, the federal agencies, informed a federal district court that they would not defend that rule in litigation and intend to issue a new proposed MHPAEA rule by the end of 2026. 

In January 2026, DOL published national enforcement priorities aimed at eliminating barriers to behavioral health benefits. Regulators also released a 2025 MHPAEA report to Congress describing NQTL comparative analysis enforcement in recent years.

The newly issued FAB confirms specifically that regulators will not enforce portions of the 2024 final rule pertaining to the meaningful benefits standard, prohibition on discriminatory factors and evidentiary standards, relevant data evaluation requirements, and related requirements for comparative analyses that would have otherwise applied beginning in 2026.

Compliance guidance. DOL also released helpful guidance intended to provide streamlined expectations to plans and issuers with regard to their MHPAEA compliance obligations. The guidance includes:

• Extensive lists of NQTL compliance red flags for plan sponsors to watch out for, both in written plan provisions or applicable policies and plan operations
• Best practices for MHPAEA compliance when selecting health plan service providers
• Best practices for monitoring operational compliance for specific NQTLs
• Examples of how plans have addressed concerns during NQTL investigations
• Tips for plans selected for an NQTL compliance review by the DOL

Red flags. It is important to note that the list of red flags provided by the regulators is not exhaustive; they are just examples of red flags often identified in investigations that have signaled potential MHPAEA compliance violations. Regulators caution that if a plan sponsor identifies any of these red flags in the plan’s written terms or operations, the sponsor should reassess whether the plan complies with MHPAEA, take steps to evaluate the issue, and remedy any compliance problems.

While plan sponsors should review the complete list of red flags, a sample includes:

• Excluding specific services for behavioral health such as Applied Behavioral Analysis therapy, medication-assisted treatment for addiction treatment, nutritional counseling or medical nutrition therapy for eating disorders, residential treatment, intensive outpatient treatment, or partial hospitalization programs 
• Excluding behavioral health treatment for chronic or long-term symptoms without a comparable exclusion for M/S benefits
• Imposing more restrictive or additional medical necessity standards and review processes, such as prior authorization or concurrent care review, only for behavioral health
• Applying age limits to ABA therapy or to all services for autism spectrum disorders
• Imposing certain criteria to obtain behavioral healthcare that is not required to obtain medical/surgical care such as repeat diagnostic testing requirements for ASD or treatment plan submission and reevaluation requirements that apply only to behavioral health treatments
• Network adequacy issues, including network admission standards and provider reimbursement methodologies, such as requiring behavioral health providers to resubmit applications multiple times, having procedures to help participants find a medical/surgical provider but not a behavioral health provider, or using different methodologies to calculate in-network or OON reimbursement for behavioral health than for M/S benefits
• Covering telehealth for medical/surgical benefits but not for behavioral health benefits

Next steps. As employers await new MHPAEA regulations, they should keep in mind that removing barriers to access MH/SUD benefits remains a top priority for the DOL. Employers should review this recent DOL guidance, particularly the three categories of NQTLs that will be the focus of enforcement efforts and ensure that group health plans continue to comply with MHPAEA’s existing statutory requirements, which include the requirement to conduct financial/quantitative treatment limitation testing and have a written comparative analysis for each NQTL in the plan.