Mental Health Parity Guidance From DOL Lacks Specifics for Sponsors

The Department of Labor issued on Tuesday long-awaited guidance clarifying how it enforces the Mental Health Parity and Addiction Equity Act.

According to Field Assistance Bulletin No. 2026-03, the DOL will continue enforcing core statutory requirements of MHPAEA, originally passed in 2008, including the obligation for health plans to prepare and maintain written comparative analyses of nonquantitative treatment limitations.

In September 2024, the Departments of Labor, Treasury, and Health and Human Services issued final regulations that expanded requirements for plans to document and analyze NQTLs. Employer groups argued in court filings that the 2024 regulations imposed burdensome new compliance obligations, particularly requirements that plans collect and analyze outcomes data; identify material differences in access to mental health and medical benefits; and take corrective action if disparities were found. Critics also argued that some provisions exceeded the agencies’ authority and created operational challenges for plan sponsors and their service providers.

After the ERISA Industry Committee challenged portions of the 2024 rule in federal court, the Departments of Labor, Treasury and Health and Human Services announced in May 2025 that they would pause enforcement of the rule’s new requirements while they considered revising or repealing them.

Last week’s bulletin acknowledged concerns of employers and other stakeholders that previous enforcement efforts created “substantial confusion and unnecessary burdens on health plans.” In response, DOL officials outlined three areas they believe pose the greatest risk to participants and beneficiaries and where enforcement resources will be concentrated.

The bulletin expressed three guiding principles for enforcement:

• Treatment limitations and exclusions applicable to mental health and substance use disorder benefits;

• Medical necessity standards and utilization-management practices, including prior authorization and concurrent review; and
• Network adequacy, particularly provider admission standards and reimbursement methodologies.

Regarding treatment exclusions, the department reiterated that plans generally cannot impose blanket exclusions on treatments for covered mental health and substance use disorder conditions if comparable treatments are covered for medical or surgical conditions.

For medical necessity determinations, the bulletin stated that plans may continue using proprietary clinical guidelines, provided they are applied comparably to mental health and medical benefits. Plans and service providers must also make those guidelines available to investigators from the DOL’s Employee Benefits Security Administration and, upon request, to participants and beneficiaries.

The department also emphasized network adequacy concerns, noting that inadequate behavioral health networks can force participants to seek more expensive out-of-network care or forgo treatment altogether.

Need for Clarity

Despite the additional guidance, some parity advocates argue that the bulletin failed to answer the fundamental questions employers and consumers have been asking.

“They outline a few areas that they will focus on, but don’t really give specifics about what is a violation in those areas, and I think that’s been the problem,” says Kaye Pestaina, who directs the Program on Patient and Consumer Protections at health policy research organization KFF. “Clarity about what is a violation and what plans should do and should not do has been a lot of the problem, so that the consumer knows what to look for and what their basic protections are under the parity law.”

Kaye also argues that the department appears to be stepping away from the approach contemplated in earlier regulations that were later withdrawn.

“They don’t wish to do the kind of data-informed approach that they had put out a couple of years ago,” she says, referring to provisions in the 2024 final rule that emphasized outcomes data and required plans to evaluate whether NQTLs contributed to material differences in access between mental health and medical benefits.

The current bulletin largely shifted away from that framework and instead focused on broad enforcement priorities and examples of potential compliance concerns.

Along with the bulletin, the department published a resource page, “Identifying Potential Problems: If You See the Following in Written Plan Provisions or Plan Operations, Think Twice About Possible MHPAEA Compliance Problems,” which provides examples of practices that may warrant closer scrutiny.

The examples of provisions and practices that may raise parity concerns include blanket treatment exclusions, utilization-management requirements that are applied more aggressively to mental health benefits, and network practices that could limit access to behavioral health providers.

Elena Lynett, a senior vice president in Segal’s national health compliance practice, says the page’s concrete examples will clue sponsors to the issues the DOL is most likely to scrutinize.

‘A Step in the Right Direction’

Other industry experts, while agreeing that the guidance may not address all of plan sponsors’ questions, view it as meaningful improvement.

“I think this guidance is a step in the right direction,” says Sage Fattahian, a partner in law firm Morgan Lewis. “The confusion initially was from plan sponsors who asked, ‘What is the department specifically looking for in these comparative analyses?’”

The MHPAEA requires plans to document how an NQTL is designed and applied to mental health and substance use disorder benefits, as compared with medical and surgical benefits. The analysis can include reviews of prior-authorization practices, medical-necessity determinations, provider-network standards and reimbursement methodologies.

Fattahian notes that the now-withdrawn MHPAEA regulations contained extensive requirements that many plan sponsors found difficult to operationalize, ultimately leading to significant industry opposition and litigation. Plans were required to gather and analyze extensive data regarding access to care and  were required to demonstrate that NQTLs did not contribute to material differences between mental health and medical benefits. Many sponsors and service providers argued the regulations lacked clear standards.

“This guidance is a step in the right direction to give plan sponsors and their third-party administrators more concrete guidance and focus on where EBSA is going with this enforcement initiative,” Fattahian says.

She adds that employers have long sought a model comparative analysis that could serve as a blueprint for compliance.

“Even if the Department of Labor can’t provide a sample comparative analysis, it would be helpful if it continues to provide more focused and concrete guidance,” Fattahian says.

Lynett agrees that the bulletin provides useful direction but notes that while the DOL is encouraging plans to ask detailed questions of insurers and other service providers, the agency has offered little guidance about how sponsors should evaluate the answers they receive.

“Plans don’t want a framework that is subjective,” Lynett says. “They’re looking for a clear path forward and clear boundaries around what the department considers acceptable.”

The DOL is expected to release new proposed MHPAEA regulations by December.