New DOL Guidance Reiterates Key Priorities for MHPAEA Enforcement

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 particularly helpful as a practical tool to assist employers in spotting potential concerns in the design or administration of their health plan benefits. EBSA has identified where investigators are most likely to begin an audit 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.

The continuity of the latest Bulletin with previous mental health parity guidance may not have been wholly expected. In response to the ERISA Industry Committee v. HHS[1] lawsuit challenging the 2024 Final Rule, the Departments of Labor, Health and Human Services, and the Treasury announced that they would not enforce that rule and would instead release a new proposed rule by December 31, 2026. DOL also released Field Assistance Bulletin No. 2026-01 in April 2026 that announced Guiding Principles for EBSA Enforcement Priorities that seemed to signal a change in direction, including a commitment to “Focusing enforcement on the most egregious conduct and significant harm” and “Ensuring […] that EBSA does not regulate by enforcement.” In this context, many stakeholders anticipated that new federal guidance for mental health parity would announce a marked change in policy or approach. Thus, it is noteworthy that the new mental health parity guidance does not substantially change the agency’s substantive theories of compliance.

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.[2] 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.[3]

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 Compliance Resource 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. Plan sponsors that identify these features through review of their plan documents, development of NQTL comparative analyses, or discussions with a third-party administrator or other plan vendor should investigate the context for the finding, along with relevant data, in order to validate whether the apparent red flag indicates a true disparity. For example, requirements for parental involvement may be based on national standards for clinical practice and may also apply to certain medical/surgical services in addition to MH/SUD services. Exclusions for certain MH/SUD benefits or services may be based on factors, sources, and evidentiary standards that are applied consistently and underpin exclusions for certain medical/surgical services. A disparity on one data measure may need to be evaluated in the context of complementary measures that paint a more nuanced picture, or the current year outcome may be an outlier relative to prior years. Further evaluation of the facts and circumstances surrounding the apparent red flag may materially change the compliance risk.

Plan sponsors should also note that although the guidance advises plans that if they identify any red flags or disparities, they should “take action in response and document it,” the parity law and applicable guidance do not provide an enforcement safe harbor of any kind for such documentation or actions, nor does this guidance protect against private litigation. Given the significant ambiguity regarding many aspects of the parity regulations and the complexity of making a compliance determination, plans that identify a potential concern may do well to consult with experienced legal counsel before taking further action.

Practical Takeaways

Given the significant context 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 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).

[2] ERISA § 712(a)(3)(A)(ii), 29 U.S.C. § 1185a(a)(3)(A)(ii).

[3] ERISA § 712(a)(4), 29 U.S.C. § 1185a(a)(4).

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The Workforce Bulletin blog is currently edited by Adam S. Forman, Greta Ravitsky, Elizabeth S. Torkelsen, and Jennifer Stefanick Barna.