Vorys Benefits Brief: DOL Outlines Mental Health Parity Enforcement Priorities
The Department of Labor (DOL) issued Field Assistance Bulletin (FAB) No. 2026-03 on September 8, 2026 which can be found here. The FAB is an “internal Department policy directed at Employee Benefits Security Administration (EBSA) and its employees” which outlines the EBSA’s enforcement approach under the Mental Health Parity and Addiction Equity Act (MHPAEA). Group health plans can use the FAB to help guide their MHPAEA compliance efforts.
Background
MHPAEA generally requires group health plans and health insurance issuers that offer mental health and substance use disorder (MH/SUD) benefits to provide those benefits on terms that are no more restrictive than the terms that apply to medical/surgical (M/S) benefits. This parity obligation applies not only to financial requirements and quantitative treatment limitations, but also to non-quantitative treatment limitations (NQTLs). The Consolidated Appropriations Act, 2021 (CAA) gave the DOL, Department of Health and Human Services, and Department of the Treasury new enforcement tools requiring plans and issuers to provide comparative analyses of NQTLs upon request. Federal agencies were directed, by Executive Order 14219[1], to review regulations and determine which regulations imposed undue hardships and significant costs that were outweighed by public benefits. As a result, EBSA re-evaluated its enforcement approach under MHPAEA and the FAB reflects EBSA’s updated enforcement approach.
Summary of Three Enforcement Priorities
1. Treatment Limitations
Plans are generally prohibited from imposing blanket treatment exclusions for covered MH/SUD conditions where similar treatments are covered for M/S benefits. EBSA will focus resources on situations involving blanket treatment exclusions applicable only to MH/SUD benefits. One example of a blanket MH/SUD treatment limitation is a residential treatment services exclusion for MH/SUD regardless of medical necessity when that plan covers comparable inpatient or post-acute M/S treatment, including skilled nursing and rehabilitation-facility care. EBSA will also review more limited exclusions which are brought to their attention by participant complaints.
2. Medical Necessity Standards and Review Process
Although plans may use appropriate guidelines in making medical necessity determinations, these guidelines cannot be applied more stringently to MH/SUD benefits than they are to M/S benefits. Plans must disclose proprietary clinical guidelines to prove that the processes, strategies, evidentiary standards, and other standards used to apply medical necessity are applied no more stringently to MH/SUD benefits than to M/S benefits. These guidelines must be made available upon request during an NQTL investigation or to participants and beneficiaries.[2]
3. Network Adequacy
The FAB notes that an inadequate network can be a significant barrier to obtaining MH/SUD treatment for participants and can result in higher out-of-pocket costs or an individual choosing to forgo MH/SUD treatment altogether. EBSA will continue to ensure that plans consider available options including helping to seek appropriate MH/SUD treatment at in-network pricing.
Next Steps for Employers
Employers should confirm that their group health plans have documentation that, at a minimum, confirms their compliance with these three enforcement priorities. Although EBSA will focus its enforcement efforts on these priorities, it will continue to investigate other categories of NQTLs as issues arise, particularly when responding to participant complaints.
Contact Legal Counsel
For questions or additional information about this Vorys Benefits Brief and its application, consult with legal counsel.
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[1] 90 FR 10583 (Feb. 25, 2025)
[2] ERISA section 712(a)(4), which generally requires a plan administrator or health insurance issuer to make available the criteria for medical necessity determinations upon request.
