On September 8, 2026, the U.S. Department of Labor’s (DOL’s) Employee Benefits Security Administration (EBSA) issued Field Assistance Bulletin No. 2026-03 (“FAB 2026-03”) and an accompanying compliance resource identifying potential warning signs of Mental Health Parity and Addiction Equity Act (MHPAEA) violations.
The new guidance provides the clearest and most concise distillation of EBSA’s enforcement priorities to date, and is likely to be most helpful as a practical tool to assist employers in spotting potential concerns in the design or administration of their health plan benefits by an administrative services organization or third-party administrator. EBSA has identified where investigators are most likely to begin and has organized its prior enforcement experience into a more accessible roadmap. From a policy perspective, however, the most notable feature of the new guidance may be how closely it tracks the DOL’s prior enforcement reports and guidance.
This continuity reinforces the previous messaging by the DOL, the U.S. Department of Health and Human Services, and the U.S. Department of the Treasury (collectively, the “Departments”) that the current policy of non-enforcement for the 2024 MHPAEA Rule extends only to the provisions that are new relative to the 2013 Final Rule (the meaningful benefits standard, the prohibition on discriminatory factors and evidentiary standards, the relevant data evaluation requirements, and the detailed specifications for documentation of the comparative analysis). In a March 30, 2026, status report to the court, the Departments stated that they will not defend the 2024 Final Rule and intend to propose replacement regulations by December 31, 2026. Plans and issuers should therefore treat FAB 2026-03 as a practical framework for compliance programs while awaiting the forthcoming notice of proposed rulemaking.
FAB 2026-03 Identifies Three Enforcement Priorities
FAB 2026-03 states that EBSA will prioritize enforcement of MHPAEA’s nonquantitative treatment limitation (NQTL) requirements in three areas that the agency believes present the greatest potential for significant participant harm:
- Separate treatment limitations, including exclusions. EBSA will focus particularly on blanket exclusions of treatments for covered mental health and substance use disorder (MH/SUD) conditions when similar treatments are covered for medical/surgical (M/S) conditions.[1] FAB 2026-03 acknowledges plans’ and issuers’ ability to impose NQTLs based on medical necessity or to apply standards for experimental or investigational treatments, but notes that EBSA may also pursue enforcement for more limited exclusions, particularly in response to participant complaints.
- Medical necessity standards and review processes. EBSA will focus on prior authorization, concurrent review, and retrospective review. FAB 2026-03 confirms that plans may use proprietary clinical guidelines, provided that the processes, strategies, evidentiary standards, and other factors used to apply those guidelines are comparable to and applied no more stringently for MH/SUD benefits than for M/S benefits. Plans, issuers, and their service providers must also make those guidelines available to EBSA on request during an investigation, and to participants and beneficiaries on request.[2]
- Network adequacy standards. EBSA will focus on network admission standards and provider reimbursement methodologies, particularly where inadequate MH/SUD networks cause participants to incur out-of-network costs or forgo treatment.
These priorities are not exclusive. EBSA reserves the ability to investigate other NQTLs as issues arise, particularly in response to participant complaints.
A New Guidance Tool Provides a Practical Checklist of Warning Signs
The accompanying compliance resource translates these priorities into a detailed checklist of “red flags” in written plan provisions and plan operations, along with a set of best practices for monitoring operational compliance. Examples include:
- exclusions of applied behavior analysis, speech therapy, or occupational therapy for autism spectrum disorder;
- exclusions of medications for opioid use disorder, nutritional counseling for eating disorders, or intermediate levels of MH/SUD care;
- broader prior-authorization requirements, additional treatment-plan requirements, shorter authorization periods, or more burdensome manual review processes for MH/SUD services;
- requirements that MH/SUD patients demonstrate motivation, exhaust community resources, or satisfy parental-participation requirements;
- more burdensome network-application processes for MH/SUD providers;
- requiring licensed MH/SUD providers—but not comparable M/S providers—to bill through another provider;
- reimbursement methodologies that impose larger reductions on master’s-level MH/SUD providers than on master’s-level M/S providers;
- disparate network-gap or out-of-network exception processes; and
- substantially higher out-of-network utilization or disproportionate participant complaints involving access to MH/SUD providers.
Importantly, EBSA characterizes these items as warning signs, not automatic findings of noncompliance. The guidance acknowledges that not every limitation on MH/SUD benefits is impermissible. Indeed, many of the identified “warning signs” are violations only under unusual and highly fact-specific circumstances. For example, the guidance refers to requirements for parental involvement as a red flag in both the “as written” and “in operation” sections. However, parental involvement is commonly required by clinical guidelines for the treatment of minors with chronic conditions involving both physical and behavioral health, and it would be unusual for a plan to adopt such guidelines for behavioral health treatments but not physical health treatments. Similarly, while true that it would likely violate MHPAEA for a plan to impose step therapy or fail-first requirements on certain MH/SUD benefits but not on medical/surgical benefits, this would be highly unusual to find in practice. That said, the DOL’s long-standing compliance guidance has treated fail-first and step-therapy protocols as a recurring category of concern, in particular for outpatient and residential MH/SUD benefits, so plans should ensure that the design and the implementation of any such requirements are documented consistently for MH/SUD and medical/surgical benefits.
Other warning signs may be more likely to arise in practice, but require additional context to evaluate. For example, another warning sign is that “[m]any MH/SUD and M/S benefits require prior authorization, but the prior authorization process for M/S benefits is generally conducted through automated submissions and approvals. The prior authorization process for MH/SUD benefits is manual and involves a more burdensome exchange of documents and information.” Here, because these automated authorization processes generally require significant investments in technology and implementation, they are most common for health systems and large organizational providers. A plan or administrative service provider that affirmatively excludes behavioral health providers from participating in an automated authorization system may violate parity, but the absence of participation by behavioral health providers should not be treated as evidence of a violation.
Continuity Following the 2024 Final Rule Nonenforcement Policy
In the wake of the ERISA Industry Committee v. HHS[3] lawsuit over the 2024 Final Rule and the Departments’ May 2025 nonenforcement announcement, many stakeholders anticipated that new federal guidance would announce a marked change in policy or approach. Thus, it is noteworthy that the new guidance does not substantially change the agency’s substantive theories of compliance.
The identified exclusions, utilization-management practices, network concerns, and corrective actions highlighted in this latest guidance closely resemble those discussed in the Departments’ prior Reports to Congress. Indeed, the 2025 MHPAEA Report to Congress expressly focused on provider-network admission standards, treatment exclusions, autism-service limitations, prior authorization, medical-necessity standards, and out-of-network reimbursement—the same subjects emphasized in FAB 2026-03.
The DOL’s continued focus on enforcement for exclusions of MH/SUD benefits is particularly noteworthy. The MHPAEA statute provides that “[n]othing in this section shall be construed … as requiring a group health plan … to provide any [MH] or [SUD] benefits.”[4] The ERISA Industry Committee and other stakeholders have argued that this provision precludes federal regulators from requiring health plans to cover specific treatments or services. However, the latest guidance puts health plans on notice that the DOL continues to interpret the statute to merely permit health plans to exclude coverage for all MH/SUD benefits, and to interpret benefit exclusions as a form of benefit limits.
Practical Takeaways
Noting the significant context that is needed to assess the potential risks associated with the three priority areas for enforcement and warning signs, health plans and issuers should consult with experienced counsel to discuss strategies for identifying potential risks, appropriate mitigation strategies, and implications for compliance documentation. They should also confirm that service-provider agreements ensure that service providers will create the documentation and data measures that are needed to complete comparative analyses and respond to an investigation. Because the Departments have signaled a full replacement rule by year-end, plans should treat compliance efforts built around FAB 2026-03 as provisional pending a notice of proposed rulemaking.
Endnotes
[1] ERISA § 712(a)(3)(A)(ii), 29 U.S.C. § 1185a(a)(3)(A)(ii).
[2] ERISA § 712(a)(4), 29 U.S.C. § 1185a(a)(4).
[3] ERISA Indus. Comm. v. Dep’t of Health & Human Servs., No. 1:25-cv-00136 (D.D.C., filed Jan. 17, 2025) (status report filed Mar. 30, 2026).
[4] 29 U.S.C. § 1185a(b)(1).
* * * *
If you have questions, please reach out to the author(s).
The Health Law Advisor blog is currently edited by Emily Chi Fogler.
