Summary

The DOL’s EBSA issued FAB 2026-03 and a companion enforcement tool clarifying its narrowed MHPAEA enforcement focus for NQTL comparative analyses, particularly around MH/SUD-only exclusions, medical necessity and utilization review standards, and network adequacy or reimbursement practices. The guidance does not eliminate employer obligations under MHPAEA or CAA 2021, but gives plan sponsors a clearer framework for prioritizing parity compliance oversight, vendor coordination, documentation, and participant complaint monitoring.

The Department of Labor’s (DOL) Employee Benefits Security Administration (EBSA) recently issued new guidance outlining how it will focus enforcement of the Mental Health Parity and Addiction Equity Act’s (MHPAEA) nonquantitative treatment limitations (NQTLs) requirements. Field Assistance Bulletin (FAB) No. 2026-03, issued September 8, 2026, is intended to give group health plans, insurers, and plan sponsors a clearer, more practical view of where EBSA will concentrate its Mental Health Parity enforcement efforts going forward. In addition, the DOL released a companion 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, to help plans identify potential MHPAEA compliance issues under the agency’s updated NQTL enforcement approach.

MHPAEA Background

The MHPAEA generally requires group health plans and health insurance issuers to cover mental health and substance use disorder (MH/SUD) benefits in a manner that is comparable to medical and surgical (M/S) benefits. In practical terms, plans cannot impose more restrictive requirements on MH/SUD benefits than they impose on comparable M/S benefits. This includes financial requirements, quantitative limits, and nonquantitative treatment limitations (NQTLs).

NQTLs are plan design or operational limits that are not expressed numerically but can still affect access to care. Common examples include prior authorization, concurrent review, retrospective review, medical necessity criteria, provider network admission standards, reimbursement methodologies, and exclusions for certain treatments.

Since the Consolidated Appropriations Act, 2021 (CAA 2021), plans and issuers have been required to conduct and document comparative analyses of NQTLs. These analyses are intended to show that the processes, strategies, evidentiary standards, and other factors used to apply NQTLs to MH/SUD benefits are comparable to, and applied no more stringently than, those used for M/S benefits.

Final rules issued in 2024 — see our article Mental Health Parity Final Rules Released — made significant changes to the required content of NQTL comparative analyses. The Departments later paused enforcement of certain provisions of the 2024 Final Rule, see our article Mental Health Parity Final Rules: Enforcement Paused. However, plans are currently still required under the CAA 2021 to maintain written NQTL analyses and comply with MHPAEA’s 2013 requirements.

New EBSA Guidance

In FAB 2026-03, EBSA acknowledged that prior enforcement of NQTL comparative analysis requirements created confusion and significant administrative burden for many health plans. EBSA also confirmed that, consistent with its previously announced non-enforcement policy, it will not pursue enforcement of the relevant portions of the 2024 Final Rule. However, because MHPAEA obligations continue to apply, EBSA will narrow its enforcement focus areas relating to requests for NQTL comparative analyses. The new guidance is designed to provide a more streamlined enforcement framework while preserving participant protections and access to mental health and substance use disorder benefits.

EBSA stated that it will prioritize NQTL enforcement in three areas where the agency sees the greatest potential for participant harm:

  1. Separate treatment limitations, including exclusions. EBSA will focus on exclusions or limits that apply only to MH/SUD benefits, especially blanket exclusions where comparable M/S treatments are covered.
  2. Medical necessity standards and review processes. EBSA will review medical necessity standards and utilization management practices, including prior authorization, concurrent review, and retrospective review, to ensure they are applied comparably to MH/SUD and M/S benefits. Plans and vendors should be prepared to provide related criteria and guidelines upon request during EBSA’s NQTL investigations and to participants and beneficiaries upon request.
  3. Network adequacy standards and provider reimbursement methodologies. EBSA will focus on whether network admission standards and reimbursement methodologies create inadequate MH/SUD provider networks, which can force participants to seek higher-cost out-of-network care or forgo treatment.

New Enforcement Guidance Tool

To provide greater clarity on its enforcement approach, EBSA also issued an enforcement guidance tool to help plans and issuers. The tool emphasizes that MHPAEA compliance should be evaluated both in written plan terms and in operation, with particular attention to EBSA-identified red flags such as:

  • Exclusions that apply only to mental health or substance use disorder benefits;
  • More burdensome medical necessity or utilization review requirements;
  • Differences in provider network standards; and
  • Reimbursement practices that may limit access to MH/SUD care.

The tool also encourages employers to monitor plan administration, including prior authorization timelines, denial rates, out-of-network utilization, network gap exceptions, provider recruitment efforts, and participant complaints. If potential disparities are identified, employers should document the issue, take corrective action, and consider whether affected participants need notice, claim reprocessing, or other remedies.

Employers should review the tool carefully. It also includes tips for working with plan service providers, including 14 questions plan sponsors can ask prospective or current vendors to help monitor MHPAEA compliance, as well as examples of how plans have resolved compliance concerns during DOL investigations.

Employer Takeaways

For employers sponsoring group health plans, the new guidance does not eliminate Mental Health Parity obligations. EBSA made clear that MHPAEA’s statutory requirements, including the CAA 2021 comparative analysis requirements, remain in effect. FAB 2026-03 does, however, give employers a clearer view of where EBSA is most likely to focus its enforcement resources. EBSA also emphasized that while its primary focus will be the areas outlined above, it may investigate other NQTLs as issues arise, particularly in response to participant complaints.

Employers should consider the following steps:

  • Inventory key NQTLs. Identify plan provisions and vendor practices involving prior authorization, medical necessity review, exclusions, network standards, and reimbursement methodologies.
  • Prioritize the three EBSA focus areas. Review whether the plan has any mental health or substance use disorder-only exclusions, more stringent medical necessity review practices, or access issues tied to network adequacy.
  • Coordinate with carriers, TPAs, PBMs, and vendors. Employers should confirm that vendors can provide current comparative analyses, clinical criteria, network standards, and documentation needed to respond to participant requests or regulatory inquiries.
  • Review plan documents and operations. Compliance is not limited to written plan terms. Employers should also evaluate how the plan is actually administered, including claims review, appeals, provider access, and out-of-network handling.
  • Pay attention to participant complaints. EBSA noted that it may investigate other NQTL categories as issues arise, particularly in response to participant complaints. Patterns in denied claims, appeals, or access complaints can be an early warning sign.
  • Do not pause parity compliance efforts. Even with EBSA’s more focused enforcement posture, employers should continue maintaining and updating their documented NQTL comparative analyses as part of their broader fiduciary and compliance oversight.

Sequoia will continue to monitor for DOL regulations and related guidance and share important MHPAEA updates for employers as they occur.

Additional Resources

The information and materials on this blog are provided for informational purposes only and are not intended to constitute legal or tax advice. Information provided in this blog may not reflect the most current legal developments and may vary by jurisdiction. The content on this blog is for general informational purposes only and does not apply to any particular facts or circumstances. The use of this blog does not in any way establish an attorney-client relationship, nor should any such relationship be implied, and the contents do not constitute legal or tax advice. If you require legal or tax advice, please consult with a licensed attorney or tax professional in your jurisdiction. The contributing authors expressly disclaim all liability to any persons or entities with respect to any action or inaction based on the contents of this blog.

Diane Cross

Diane Cross

Compliance Director

Diane is a Compliance Director for Sequoia, where she works with our clients to optimize and streamline benefits compliance. In her free time, Diane enjoys spending time with her family, live music, and cycling.