On September 8, 2026, the Department of Labor’s Employee Benefits Security Administration (EBSA) issued Field Assistance Bulletin No. 2026-03 (FAB 2026-03 or the Bulletin), announcing a focused enforcement policy for the Mental Health Parity and Addiction Equity Act (MHPAEA). At the same time, EBSA also released a corresponding compliance tool intended to provide additional guidance on identifying and addressing common MHPAEA compliance issues. The tool provides a practical roadmap for plan sponsors and fiduciaries to evaluate, monitor, and address key parity requirements.

As we discussed in previous posts (here and here), EBSA has made clear that barriers to mental health and substance use disorder (MH/SUD) benefits remain an enforcement priority. FAB 2026-03 and the compliance tool reinforce this commitment while identifying specific non-quantitative treatment limitation (NQTL) focus areas.

Background

MHPAEA is a federal law that generally requires group health plans and health insurers offering mental health or substance use disorder benefits to provide those benefits on terms no more restrictive than the terms for medical and surgical (M/S) benefits. This “parity” requirement applies to both financial requirements (such as copayments and coinsurance) and treatment limitations.

Under MHPAEA, health plans and insurers must perform and document comparative analyses of the design and application of their NQTLs.

Noting significant feedback that prior MHPAEA NQTL enforcement created confusion and unnecessary burdens on health plans, the DOL issued FAB 2026-03 and the enforcement guidance tool with the express goal of “supporting access to comprehensive MH/SUD benefits but enforcing compliance in a practical and meaningful way that does not unnecessarily drive up compliance costs or discourage sponsors of group health plans from offering MH/SUD benefits.”¹ The Bulletin communicates EBSA’s intention to focus its NQTL comparative analysis enforcement on three NQTL categories (discussed below). EBSA may still investigate other NQTL categories as issues arise, particularly in response to participant complaints. Accordingly, though plan sponsors should not interpret the Bulletin as permission to limit their NQTL analyses only to the three stated areas, the prioritized areas should be considered in determining focus and allocation of resources for MHPAEA compliance efforts.

EBSA’s Three Priority NQTL Enforcement Areas

FAB 2026-03 announces that EBSA will prioritize the following three enforcement categories, which they believe have the highest potential for participant harm.

1. Separate Treatment Limitations, Including Exclusions

EBSA will continue to focus on treatment limitations that apply only to MH/SUD benefits, including but not limited to blanket exclusions. The Bulletin reinforces that plans generally cannot apply blanket exclusions of treatments for covered MH/SUD conditions where similar treatments are covered for M/S conditions.

This focus area is not new, and enforcement actions in this area have yielded substantial results. Beginning with the 2022 Report to Congress, the Departments have repeatedly identified issues involving separate treatment limitations. The 2025 Report to Congress noted that EBSA’s enforcement relating to separate treatment limitations resulted in corrections benefiting more than 800,000 participants who now face fewer barriers to autism spectrum disorder treatment, more than 130,000 participants who now have new or expanded access to critical opioid use disorder treatments, and more than 1.8 million participants who now have easier access to nutritional counseling services for eating disorders.²

The enforcement guidance tool identifies several treatment limitations and exclusions as red flags, including:

• Exclusion of applied behavioral analysis (ABA) therapy, speech therapy, or occupational therapy for autism spectrum disorder when there are no similar exclusions of treatments for M/S conditions.
• Exclusion of methadone, naltrexone, or buprenorphine, or other medication-assisted treatment for addiction, especially where the same services or medications are covered to treat M/S conditions.
• Exclusion of nutritional counseling or medical nutrition therapy for eating disorders, especially where the same or similar services are covered for M/S conditions like diabetes, obesity, or stroke recovery.
• Exclusion of residential treatment programs, intensive outpatient programs, or partial hospitalization programs for MH/SUD conditions, especially where intermediate levels of care, such as skilled nursing, home health, or rehabilitation programs, are covered for M/S conditions.
• Requirement that a participant must complete a full course of MH/SUD treatment where there is no similar requirement for M/S treatment.

2. Medical Necessity Standards and Review Process

Although EBSA has identified prior authorization and concurrent review as enforcement priorities since at least 2022, FAB 2026-03 adds retrospective review to this enforcement category. Enforcement actions for prior authorization and concurrent review NQTLs have resulted in notable reductions in hurdles to coverage. In the 2025 Report to Congress, EBSA reported that corrections made during the reporting period affected over 2 million participants whose plans now have reduced preauthorization or concurrent care review requirements for MH/SUD services.

The Bulletin clarifies that MHPAEA does not prohibit plans and issuers from using proprietary clinical guidelines for medical necessity determinations, as long as the processes, strategies, evidentiary standards, and other factors used to apply such NQTLs to MH/SUD benefits are comparable to and applied no more stringently than those used for M/S benefits and the guidelines are made available to the DOL or participants and beneficiaries upon request.

The enforcement guidance tool identifies several medical necessity and review process red flags, including:

• Age limits on certain MH/SUD services, such as ABA therapy for autism spectrum disorder, with no or few corresponding limitations for M/S benefits in the same benefit classification.
• “Extra review” requirements that apply to some MH/SUD services but not to any M/S services, or that apply to all MH/SUD services but less than all M/S services. Extra review requirements could include programs requiring care managers, utilization management/review, or prepayment review.
• Longer timelines to obtain prior authorization or concurrent care review of MH/SUD claims compared to M/S claims, including differences in goals, standards, or actual time taken to review claims.³
• Using automated submissions and approvals for the prior authorization process for benefits, but requiring a manual and more burdensome process for MH/SUD benefits.

3. Network Adequacy Standards

EBSA continues to focus on network adequacy standards, emphasizing network admission standards and provider reimbursement methodologies. EBSA is concerned with networks where participants cannot find MH/SUD treatment in-network and must choose between going out-of-network (usually at higher out-of-pocket costs) or forgoing MH/SUD treatment altogether.⁴

The enforcement guidance tool identifies several network adequacy red flags, including but not limited to:

• More burdensome processes or stricter criteria for MH/SUD providers to participate in a network as compared to processes or criteria for M/S providers, such as having MH/SUD providers submit paperwork multiple times or wait longer to be approved and listed in the provider directory.
• Different methodologies for calculating network or out-of-network provider reimbursement amounts for MH/SUD providers than for M/S providers, such as discounting master’s levels MH/SUD providers’ reimbursement rates to a greater extent or not at all for M/S providers.
• Differences in network-monitoring activities to ensure adequate numbers of MH/SUD or medical/surgical providers. This could include differences to evaluate whether the network has enough of a certain provider type in each geographic area or differences in measures taken to address identified gaps in the provider network.

Notably, EBSA stated that it will ensure “plans and issuers consider all available options and assist participants and beneficiaries seeking covered MH/SUD treatments without exposing [them] to out-of-network costs due to the lack of availability of a covered MH/SUD service in-network.”⁵

As a practical matter, plan sponsors and fiduciaries who rely on insurers and third-party network administrators to maintain network arrangements typically don’t have the ability to force immediate, broad-scale network improvements. In what could be read as implicit recognition of this challenge, the enforcement guidance tool addresses examples of actions that may be more feasible for plans to implement. Plans sponsors and fiduciaries should take note. With the provision of this guidance, EBSA is likely to be increasingly unsympathetic to plan sponsors and fiduciaries who do nothing to address network adequacy. Instead, examples of proactive and corrective actions EBSA expects plans to take include:

• Expand telehealth access for MH/SUD services. EBSA has recognized increasing telehealth services as a proactive measure that can help resolve network adequacy concerns. Given the well-documented shortage of in-network MH/SUD providers in many geographic areas, adding or expanding telehealth coverage for MH/SUD services can meaningfully broaden participant access to care.
• Encourage or require third-party administrators (TPAs) to utilize single-case agreements and network gap exceptions and communicate these options to participants. EBSA considers it a red flag when a plan has procedures to help participants find M/S providers outside the network but does not offer comparable procedures for participants seeking MH/SUD services or imposes more burdensome procedures on those participants. These procedures can take various forms, including single-case agreements, out-of-network exceptions, and “in-network for out-of-network” policies. Plan fiduciaries should confirm with their TPAs that such policies are in place for MH/SUD services on terms no more restrictive than those for M/S services and that participants seeking MH/SUD care through these channels do not face a higher level of scrutiny than those seeking M/S care. The available options to address network adequacy and access issues should be communicated to participants in their summary plan descriptions (SPDs).
• Push TPAs to increase MH/SUD provider recruitment and retention efforts. Plans should ask their TPAs what steps are being taken to recruit and retain MH/SUD providers in the network and how those efforts compare to M/S recruitment.
• Monitor out-of-network utilization data and participant complaints. Higher out-of-network utilization for MH/SUD services compared to M/S services or a disproportionate number of participant complaints about the ability to access in-network MH/SUD providers can suggest discrepancies in the processes and procedures used to create MH/SUD networks. Plans should request periodic reports from their TPAs tracking these metrics and monitor the extent of any disparities.

New and Useful Guidance in the Enforcement Guidance Tool

1. Other Red Flags and Compliance Concerns

The new enforcement guidance tool outlines numerous MHPAEA red flags, drawing from the Departments’ prior warning signs document and prior reports to Congress.⁶ The tool itself is not limited to the three priority enforcement areas. Instead, it addresses red flags related to quantitative treatment limitations (QTLs) and a broader range of NQTLs. Additional highlighted red flags include (i) providing coverage of telehealth M/S treatment without corresponding coverage for telehealth MH/SUD treatment; (ii) requiring participants to complete a full course of MH/SUD treatment, or excluding subsequent treatment if a prior course was not completed, without a similar M/S requirement; (iii) excluding MH/SUD treatments for symptoms deemed chronic or long-term without a similar M/S exclusion; (iv) providing coverage documents indicating that some MH/SUD services are excluded or subject to additional restrictions without specifying which services, where no similar vague language applies to M/S services; and (v) using EAP services as a gatekeeper to MH/SUD treatment, without a similar gatekeeping requirement for M/S services.

The tool reiterates the importance of operational compliance. In doing so, it emphasizes the expectation that, in addition to ensuring written plan terms are in parity, plans should look beyond written NQTL terms to how they are applied in practice.

While the presence of a red flag doesn’t necessarily equate to a de facto parity violation, red flags warrant further inquiry, and plan sponsors and fiduciaries should take seriously the obligation to investigate and address identified red flags. EBSA’s compliance tool underscores the agency’s willingness to credit proactive compliance efforts.

2. Best Practices for Selecting and Monitoring Service Providers

Significantly for self-insured group health plans, the compliance tool emphasizes the fiduciary obligation to prudently select and monitor plan service providers (such as TPAs, managed behavioral health organizations, claims administrators, consultants, and network administrators) to ensure MHPAEA compliance with benefits administered by those providers.

The compliance tool provides detailed MHPAEA-focused questions for plan fiduciaries to ask

existing and prospective service providers covering network adequacy, claims administration disparities, compliance reporting, and comparative analysis assistance. These questions give self-insured group health plans a roadmap for monitoring service providers and a framework to utilize in future requests for proposal (RFPs).

3. Examples of Successful Corrective Action

The guidance enforcement tool provides examples from EBSA investigations where plans quickly resolved NQTL compliance concerns through voluntary corrective actions. Corrections included (i) removing blanket preauthorization requirements on MH/SUD services, (ii) eliminating ABA therapy and medication exclusions (both prospectively and retroactively), and (iii) extending auto-approval systems to MH/SUD services.

Thompson Hine Takeaways: What This Means for Plan Sponsors and Fiduciaries

FAB 2026-03 and the compliance tool signal EBSA’s prioritization of the areas it views as posing the greatest risk of participant harm and outline the corrective actions it expects plans to take to improve access to care. While this guidance doesn’t eliminate the need to comply with all aspects of MHPAEA, it highlights areas where group health plan sponsors and fiduciaries should focus their compliance efforts.

• Conduct a targeted self-audit. A robust internal self-audit focused on the three priority areas positions plans well for EBSA investigations and potential MHPAEA litigation defense. Plan sponsors and fiduciaries should (i) review each of the red flags listed in the enforcement guidance tool against the plan document and SPD to identify any that apply; (ii) send targeted questions to service providers to confirm that none of those red flags are being applied in operation, even if they aren’t in the written plan document; (iii) compare prior authorization, concurrent review, and retrospective review processes for MH/SUD and M/S benefits; (iv) review out-of-network utilization data to identify disparities between MH/SUD and M/S services; and (v) review and document participant complaints related to MH/SUD access.

• Don’t forget about the NQTL written analysis requirement. The targeted self-audit and other recommended action items should be viewed as actions to be taken in addition to – not in lieu of – conducting and documenting written NQTL analyses. The requirement to produce those analyses is statutory, and the new guidance does not replace or pause that requirement. However, there are various approaches to conducting NQTL analyses, and plan sponsors and fiduciaries should consult with counsel to determine which approach is best suited for the plan in light of available resources and the new guidance.
• Ensure MHPAEA is considered when evaluating and selecting prospective group health plan service providers. When evaluating new service providers, ensure all RFPs incorporate the questions outlined for use during the selection process. Make sure there is a clear understanding of the MHPAEA compliance support the service provider will or will not provide.
• Monitor retained service providers. Plan fiduciaries should develop a process to evaluate service providers regularly.
  • Gather relevant information: Ask service providers to respond to the questions outlined in the compliance tool. Request periodic reports from TPAs showing MH/SUD claims data, including comparisons of out-of-network utilization rates, denial rates by benefit type, and other data pertinent to assessing how NQTLs are applied in practice. Request and review network adequacy metrics for parity, including access standards, wait times, and geographic coverage.
  • Formally review the collected information: Develop a process to formally review the collected information, document issues, and address follow-up questions and action items with service providers.
  • Monitor complaints. Track and respond to, or monitor service provider responses to, participant complaints related to MH/SUD access.
  • Document the review process and corrective actions. Work with counsel to determine how best to document steps taken to monitor service providers, requests for corrective action, and outcomes.

If you have questions, please contact any of the authors or your regular Thompson Hine attorney.

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1. EBSA, FAB 2026-03 at 1 (Sept. 8, 2026), https://beta.dol.gov/policy-regulations/reference-materials/guidance-searches/ebsa-field-assistance-bulletin-no-2026-03. ↩︎
2. See https://beta.dol.gov/research-data/surveys-reports-publications/2025-mhpaea-report-congress. ↩︎
3. An example of time differences in prior authorization claims review was included in the 2025 Report to Congress; EBSA found an issuer who applied a 30-minute decision timeframe for all M/S prior authorization requests, but applied a 36-hour decision timeframe for all MH/SUD prior authorization requests. ↩︎
4. The most recent report to Congress included examples of network adequacy issues. For example, in one investigation, EBSA identified a large self-funded plan whose participants sought out-of-network providers more often for MH/SUD services than for M/S services, particularly for inpatient care, and found that the plan and its service provider used noncomparable processes to measure provider access, monitor network adequacy, and pay network providers. ↩︎
5. EBSA, FAB 2026-03 at 3-4. ↩︎
6. See https://www.dol.gov/sites/dolgov/files/ebsa/pdf_files/warning-signs-plan-or-policy-nqtls-that-require-additional-analysis-to-determine-mhpaea-compliance.pdf. ↩︎