A Department of Labor bulletin names three enforcement priorities for group health plan sponsors
Employers that read the federal pause on the 2024 mental health parity rule as permission to postpone plan reviews should reconsider. The Department of Labor’s (DOL) Employee Benefits Security Administration (EBSA) issued Field Assistance Bulletin No. 2026-03 on September 8, 2026, naming three areas where it will focus enforcement of the Mental Health Parity and Addiction Equity Act (MHPAEA).
The bulletin is an internal memorandum to EBSA enforcement staff, and the DOL said it creates no rights enforceable by any party. It narrows EBSA’s enforcement focus and is meant to reduce compliance burdens for plans, but it leaves the law in place. On May 15, 2025, the DOL, the Department of Health and Human Services (HHS) and the Treasury Department said they would not enforce the new provisions of the 2024 final rule until a final decision in litigation brought by the ERISA Industry Committee, plus an additional 18 months. The same notice said the statute’s obligations, as amended by the Consolidated Appropriations Act, 2021, continue to apply, and the bulletin adds that this includes the requirements for comparative analyses of nonquantitative treatment limitations.
Which three parity areas is EBSA targeting?
Separate treatment limitations, including exclusions, come first. The bulletin says plans can set limits based on medical necessity or standards for experimental treatments, but in general they cannot apply blanket exclusions of treatments for covered mental health and substance use disorder conditions when similar treatments are covered for medical or surgical conditions. EBSA said it will concentrate on blanket exclusions that apply only to mental health and substance use benefits, and that it may also look at narrower exclusions, especially after complaints.
Medical necessity standards and review processes follow, with a focus on prior authorization, concurrent review and retrospective review. Plans may use proprietary clinical guidelines, the bulletin says, as long as the standards applied to mental health and substance use benefits are comparable to, and no more stringent than, those applied to medical and surgical benefits. Plans and their service providers must provide the guidelines on request, both during investigations and to participants.
Network adequacy, specifically admission standards and provider reimbursement methodologies, rounds out the list. When participants cannot find in-network treatment, the bulletin notes, they either pay out-of-network costs or go without care. EBSA said it may also investigate other limitations as issues arise, particularly when participants complain.
What does the red-flags guidance add for plan sponsors?
EBSA released an enforcement guidance tool the same day to help plans and issuers meet the comparative analysis requirements. Becker’s Behavioral Health, summarizing the guidance, reported that it flags exclusions of applied behavior analysis and speech or occupational therapy for autism, longer prior authorization timelines for behavioral health than for medical care, and visit limits that do not apply to medical services.
Attorneys at Epstein Becker Green said in their analysis that EBSA treats these items as warning signs and not automatic findings of noncompliance, so a plan that spots one should look at the surrounding facts before concluding a disparity exists. They also noted that documenting a response to a red flag does not create a safe harbor under the parity law and does not protect a plan from private litigation. Legal counsel should guide any response.
What happens when the replacement rule arrives?
Epstein Becker Green said the departments have signaled a replacement proposed rule by year-end, which makes any compliance work built on the bulletin a current framework and not a settled one. The bulletin itself says the assistant secretary may update it periodically.
The timing overlaps with benefit design decisions for 2027. Marsh found that 59 percent of employers expect to make cost-reduction changes to their health benefits, as HRD reported in its coverage of employer budgets squeezed by rising medical costs heading into the new year. Changes to exclusions, authorization rules or networks are the kind of decisions the three priority areas cover.
For HR directors at self-funded organizations, a review of plan documents and comparative analyses against the three priority areas before the proposed rule lands is easier to manage than one prompted by an EBSA inquiry. HRD has also reported on workplace stress levels in 2026 and on findings that organizational responses to substance use disorder at work are falling behind.
