On September 8, the Department of Labor’s Employee Benefits Security Administration (EBSA) issued Field Assistance Bulletin No. 2026-03, outlining how it will enforce the Mental Health Parity and Addiction Equity Act’s (MHPAEA) nonquantitative treatment limitation (NQTL) requirements going forward. The bulletin follows through on EBSA’s January 2026 announcement identifying mental health/substance use disorder (MH/SUD) benefit barriers as a national enforcement priority, and responds to sustained industry complaints that prior NQTL enforcement and comparative analyses requirements created confusion and unnecessary compliance burdens.
Link to Background Background
The bulletin builds on a series of 2025 developments. The 2024 Final Rule implementing MHPAEA’s NQTL comparative analyses requirements (as added by the Consolidated Appropriations Act, 2021) was challenged in litigation by the ERISA Industry Committee (ERIC) in January 2025, and Executive Order 14219’s deregulatory review directive added further pressure to reassess the rule’s burden on regulated plans. In response, the Departments of Labor, Health and Human Services, and Treasury issued a May 2025 nonenforcement policy suspending enforcement of provisions in the 2024 Final Rule that were new relative to the prior 2013 rule, pending resolution of the ERIC litigation, plus 18 months. Critically, that relief did not touch MHPAEA’s underlying statutory NQTL obligations, which remain fully enforceable. This new bulletin is EBSA’s follow-through on the commitment made in May 2025 to reexamine its enforcement approach.
Link to The Three Enforcement Priorities The Three Enforcement Priorities
EBSA states it will concentrate NQTL enforcement resources on the areas it considers most likely to cause real harm to participants and beneficiaries:
- Separate treatment limitations and exclusions — blanket exclusions applied only to MH/SUD conditions where comparable medical/surgical treatments are covered.
- Medical necessity standards and review processes — with attention to prior authorization, concurrent review, and retrospective review, plus a requirement that clinical guidelines used for medical necessity determinations be made available on request during investigations and to participants/beneficiaries. While EBSA confirmed health plans do not violate MHPAEA by relying on proprietary guidelines for medical necessity determinations so long as the processes, strategies, evidentiary standards, and other factors are comparable across benefits, health plans still need to consider state laws and regulations, as well as litigation risk on this point.
- Network adequacy — focused on admission standards and provider reimbursement methodologies, given the risk that inadequate MH/SUD networks push participants into costlier out-of-network care or no care at all. Notably, network adequacy and reimbursement methodologies are a hot topic in litigation.
EBSA emphasized this is a focus, not an exhaustive limit. It may still pursue other NQTL issues, especially those raised through participant complaints.
Link to Additional Guidance Tool Additional Guidance Tool
Alongside the bulletin, EBSA released a new enforcement guidance tool designed to help plans and issuers meet their comparative analyses obligations, consistent with the agency’s stated principle of giving the regulated community advance notice before enforcement action.
Link to Important Caveat Important Caveat
The bulletin is explicitly framed as internal Department policy. It creates no private rights and cannot be relied upon by any party in litigation, though it signals clearly where EBSA’s examination and enforcement attention will land.
Link to Our Take Our Take
This bulletin gives plan sponsors and issuers meaningful, if informal, guidance on where to direct compliance resources: treatment exclusions, medical necessity/utilization review protocols, and network adequacy are now the clearest lines of EBSA scrutiny. Plans should use this as a roadmap to prioritize their own NQTL comparative analyses in these three areas, while remaining mindful that the underlying statutory parity obligations, and EBSA’s discretion to pursue complaint-driven investigations outside these categories, remain fully in effect. Given that the bulletin can be updated periodically at the Assistant Secretary’s discretion, this is also a space to continue monitoring for further refinement.