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Plan sponsors and administrators of group health plans have had no shortage of mental health parity developments to track over the past two years: a new final rule in 2024, a federal lawsuit challenging key parts of it, and a blanket non-enforcement policy from the responsible federal agencies. Now, on September 8, 2026, the Department of Labor (DOL) has weighed in again, this time with a Field Assistance Bulletin1 and a companion self-compliance tool2 that signal where the agency intends to focus its enforcement energy going forward.
At a high level, DOL is trying to bring some order to a compliance landscape that plan sponsors, insurers, and their advisors have found genuinely difficult to navigate. The important nuance is that the Bulletin narrows DOL's enforcement focus without narrowing the underlying legal obligation, and it leaves at least one open question whose answer may turn on how pending litigation is resolved.
Background on MHPAEA
The Mental Health Parity and Addiction Equity Act (MHPAEA) has been on the books since 2008,3 building on a narrower 1996 law, and last amended in 2020.4 The statute's central requirement is straightforward in concept but difficult to implement in practice: health plans cannot treat mental health and substance use disorder (MH/SUD) benefits worse than medical/surgical (M/S) benefits. Under MHPAEA, health plans must ensure “parity” between MH/SUD benefits and M/S benefits. This parity obligation applies not only to financial and quantitative requirements, but also to “nonquantitative treatment limitations” (NQTLs), such as prior authorization and medical necessity criteria, that are not expressed as numeric limits but that may nonetheless restrict coverage. MHPAEA requires that health plans conduct a “comparative analysis” that documents their NQTLs and demonstrates that the NQTLs for MH/SUD benefits “as written and in operation, are comparable to, and are applied no more stringently than” the NQTLs for M/S benefits.
Litigation of the 2024 Final Rule, Followed By DOL’s Subsequent Non-Enforcement
DOL, HHS, and Treasury finalized detailed new NQTL regulations in September 2024, adding, among other things, a “meaningful benefits” standard, new evidentiary requirements, and language stating that measurable differences in outcomes between MH/SUD benefits and M/S benefits would be a “strong indicator” of a parity violation.5
The new rule was controversial. In January 2025, the ERISA Industry Committee (ERIC) filed suit against DOL, HHS, and Treasury in federal court, alleging that the 2024 regulation exceeded the Departments’ statutory authority under MHPAEA.6 Among other things, ERIC alleges that the 2024 regulation’s comparative analysis requirements are impermissibly vague because they “require[] plans to compare M/S and MH/SUD benefits without sufficiently describing what information must be included in that analysis.”7 ERIC further criticizes both the 2024 regulation’s “meaningful benefits” standard, which ERIC alleges gives the Departments the ability to determine the adequacy of MH/SUD benefits, as well as the regulation’s “material differences in access” standard, specifically the regulation’s statement that differences in outcomes is a strong indicator that the plan violates MHPAEA.8
In May 2025, the Departments asked the court to pause the case while they reconsidered their approach, and posted guidance confirming they would not enforce whatever in the 2024 rule was new,9 relative to a prior 2013 rule.10 The case has been sitting in that holding pattern since, with the agencies telling the court in March 2026 that a new proposed rule is coming and that a formal notice of rulemaking is expected no later than December 31, 2026.11
The September 2026 Bulletin
On September 8, 2026, DOL released Field Assistance Bulletin 2026-03, as well as a publication titled Self-Compliance Tool for the Mental Health Parity and Addiction Equity Act (MHPAEA). The Bulletin sets out DOL’s internal enforcement approach to MHPAEA compliance, specifically with respect to NQTLs, while the self-compliance tool states that it is intended to help health plans comply with those requirements.
The September 2026 Bulletin articulates that going forward, DOL’s enforcement focus for NQTL comparative analyses will be in three categories12:
- “Separate treatment limitations, including exclusions.” Cases involving blanket treatment exclusions that apply only to MH/SUD benefits but not M/S benefits.
- “Medical necessity standards and review process.” The standards used to operationalize medical necessity requirements for MH/SUD services.
- “Standards for determining network adequacy with a focus on network admission standards and provider reimbursement methodologies.” The standards used for network admission, credentialing, and provider reimbursement, which can affect access to MH/SUD services.
The Bulletin states that DOL “will not pursue enforcement actions of those portions of the 2024 Final Rule that are new in relation to the 2013 final rule”13, language that echoes the Departments’ May 15, 2025 non-enforcement statement.
Notably, however, the September 2026 Bulletin includes Footnote 8, which clarifies that what DOL is actually treating as “new” for non-enforcement is limited to “the meaningful benefits standard, prohibition on discriminatory factors and evidentiary standards, relevant data evaluation requirements, and the related requirements in the provisions for comparative analyses that apply on the first day of the first plan year beginning on or after January 1, 2026.”14 This language does not clearly include the “material differences in access” standard challenged in the ERIC lawsuit.
In the self-compliance tool DOL released alongside the Bulletin, the tool walks plans through eight core compliance questions, covering MHPAEA exemptions, benefit classifications, dollar and visit limits, financial requirements, quantitative treatment limitations, NQTLs, and disclosure obligations. On the NQTL question, the tool states that while results alone are not determinative of noncompliance, “measuring and evaluating results and quantitative outcomes can be helpful to identify potential areas of noncompliance.”15 The tool further states that “[w]hile outcomes are NOT determinative of compliance, rates of denials may be reviewed as a warning sign, or indicator of a potential operational MHPAEA parity noncompliance,” and that “outcomes . . . often serve as red flags or warning signs to alert the plan or issuer that a particular provision may warrant further review.”16 In other words, DOL is still pointing plans toward the same outcomes-based analysis that is presently being litigated.
Practical Takeaways
- This is a reprioritization, not a reprieve. The underlying 2013-era comparative analysis obligation remains fully enforceable. Plans that have not recently reviewed their NQTL documentation against blanket exclusions, medical necessity criteria, and network adequacy standards should consider doing so now; those are the three areas DOL has told its investigators to focus on.
- Not every 2024 provision is necessarily off the table. The non-enforcement commitment is limited to the specific requirements identified in the Bulletin’s Footnote 8. Anything outside that list, including, potentially, the outcomes-based “material differences in access” standard, may still be enforced.
- The role of outcomes data remains an open question. The self-compliance tool encourages evaluating outcomes as part of an NQTL comparative analysis, even though that approach is under legal challenge. Given that uncertainty, plans will want to consider carefully how much weight to place on outcomes-based measures and to document the reasoning behind that decision.
- Work with counsel. DOL is explicit that the self-compliance tool does not provide legal advice. It is a useful structured checklist, but only a starting point for a defensible comparative analysis, not a substitute for one.
- The landscape could shift again before year-end. The Departments have committed to issuing a new proposed rule no later than December 31, 2026, and the next status report in the ERIC litigation is due September 30, 2026. Compliance planning should account for the possibility that either development changes the current enforcement framework.
Footnotes
1 EBSA, Field Assistance Bulletin No. 2026-03 (Bulletin), Guiding Principles for EBSA's Enforcement of the Mental Health Parity and Addiction Equity Act's Nonquantitative Treatment Limitation Requirements, U.S. DEP’T OF LABOR (Sept. 8, 2026),
2 EBSA, Self-Compliance Tool for the Mental Health Parity and Addiction Equity Act (MHPAEA), U.S. DEP’T OF LABOR (2026), https://www.dol.gov/sites/dolgov/files/EBSA/laws-and-regulations/laws/mental-health-parity/self-compliance-tool.pdf (Self-Compliance Tool).
3 Pub. L. No. 110-343, div. C, tit. V, subtit. B, §§ 511-12, 122 Stat. 3765 (Oct. 3, 2008).
4 Pub. L. No. 116-260, div. BB, tit. II, § 203, 134 Stat. 1182, 2903-10 (Dec. 27, 2020).
5 Requirements Related to the Mental Health Parity and Addiction Equity Act, 89 Fed. Reg. 77,586 (Sept. 23, 2024); 29 C.F.R. §§ 2590.712 - 2590.712-1.
6 Complaint, ERISA Indus. Comm. v. U.S. HHS et al., No. 25-0136 (D.D.C. filed Jan. 17, 2025).
7 Id. ¶ 13.
8 Id. ¶¶ 4, 10.
9 Defendants’ Motion for Abeyance, ERISA Indus. Comm. v. U.S. HHS et al., No. 25-0136 (D.D.C. filed May 9, 2025); Statement of U.S. Departments of Labor, Health and Human Services, and the Treasury Regarding Enforcement of the Final Rule on Requirements Related to the Mental Health Parity and Addiction Equity Act, U.S. DEP’T OF LABOR, (May 15, 2025), https://www.dol.gov/agencies/ebsa/laws-and-regulations/laws/mental-health-parity/statement-regarding-enforcement-of-the-final-rule-on-requirements-related-to-mhpaea.
10 Final Rules Under the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008; Technical Amendment to External Review for Multi-State Plan Program, 78 Fed. Reg. 68,240, 68,280 (Nov. 13, 2013).
11 Joint Status Report, ERISA Indus. Comm. v. U.S. HHS et al., No. 25-0136 (D.D.C. filed Mar. 30, 2026).
12 Bulletin at 3-4.
13 Id. at 2-3.
14 Id. at 3 n.8.
15 Self-Compliance Tool at 28.
16 Id. at 27, 38.
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