Seyfarth Synopsis: The DOL’s latest MHPAEA guidance gives plan sponsors a practical roadmap for where parity compliance reviews should focus next. Although the DOL has announced limited nonenforcement relief for certain portions of the 2024 Final Rule, the agency made clear that it continues to enforce MHPAEA’s core statutory requirements, including the obligation to prepare and maintain written NQTL comparative analyses. The key takeaway is to review written plan terms and operational practices for warning signs involving treatment exclusions, medical necessity, utilization management, and network adequacy, and to make sure service providers will provide support.

Consistent with the DOL’s enforcement priorities for 2026, earlier this week the Department of Labor (“DOL”) released Field Assistance Bulletin No. 2026-03 and an accompanying web page (“Identifying Potential Problems: If You See the Following in Written Plan Provisions or Plan Operations, Think Twice about Possible MHPAEA Compliance Problems”), which spotlight three key focus areas for enforcement and provide a checklist for identifying warning signs that might indicate potential compliance problems under the Mental Health Parity and Addiction Equity Act (MHPAEA).

Three Key Focus Areas

The Field Assistance Bulletin explains that the DOL intends to focus its MHPAEA NQTL enforcement on three areas where it sees significant risk of participant harm:

1. Treatment exclusions for mental health and substance use disorder benefits;
2. Medical necessity and utilization management processes, including prior authorization, concurrent review, and related claims review standards; and
3. Network adequacy and provider reimbursement, including standards for admitting MH/SUD providers to networks and methodologies that may contribute to inadequate access.

Employer Takeaway: According to the guidance, these are the places the DOL is most likely to look first. Treat the DOL’s three focus areas as the starting point for your next MHPAEA review.

Identifying “Red Flags”: What Should Plan Sponsors Look For?

The most useful piece of guidance for plan sponsors is the web page, which offers a list of “red flags” that the DOL has identified during agency-led investigations. In addition to the three key focus areas described in the Field Assistance Bulletin, the following non-exhaustive list of both problematic plan provisions and operational practices can serve as the “roadmap” for plan sponsors to focus on during their mental health parity compliance reviews:

• blanket exclusions for specific mental health/substance use disorder (“MH/SUD”) services or conditions, such as residential treatment for eating disorders or applied behavior analysis therapy for autism;
• stricter medical necessity, prior authorization, concurrent review, or documentation requirements for MH/SUD claims than for comparable medical/surgical claims, such as requiring prior authorization for outpatient therapy when comparable office visits do not require prior authorization or requiring more frequent treatment plan updates for MH/SUD services than for comparable medical/surgical services;
• standards that make it harder for MH/SUD providers to join the network, such as more burdensome credentialing requirements for behavioral health providers or refusing to contract with otherwise qualified MH/SUD providers unless they meet additional specialty-specific criteria not applied to comparable medical/surgical providers; or
• reimbursement methodologies that may contribute to materially thinner MH/SUD networks, such as setting behavioral health reimbursement rates using more restrictive factors than those used for comparable medical/surgical providers or failing to adjust MH/SUD reimbursement rates where low participation is causing meaningful access issues.

Employer Takeaway: Red flags should trigger a closer look, not an automatic conclusion that the plan is noncompliant. While some identified issues made need a “fix,” some may simply require that the plan be able to explain and support any differences between MH/SUD and comparable medical/surgical benefits.

Best Practices: How Can Plan Sponsors Monitor Operational Compliance and Respond?

The web page goes further than just identifying red flags, offering not just a list of warning signs, but also practical monitoring steps. Some of the best practices include:

• Identify which MH/SUD and medical/surgical benefits are subject to medical necessity, prior authorization, concurrent review, documentation, or retrospective review requirements.
• Compare how prior authorization and concurrent review processes work in practice, including documentation, use of automated versus manual review, penalties for failing to obtain approval, claim volumes, denial rates, and turnaround times.
• Ask how the network administrator evaluates whether the MH/SUD network is adequate, including any applicable access standards, wait times-time measures, out-of-network exception practices, provider recruitment efforts, and steps taken when gaps are identified met.
• Review how providers join the network and compare MH/SUD and medical/surgical data points, such as average approval and denial times, reimbursement practices, and how network gaps are addressed.
• Track and respond to participant complaints, and periodically review plan documentation, vendor materials, and participant-facing disclosures for inaccurate descriptions of MH/SUD coverage.
• Incorporate these checks into a written monitoring policy or existing processes, and document any steps taken to address any identified issues.

Employer Takeaway: Practically speaking, plan sponsors will need to rely heavily on vendors in order to be able to conduct these monitoring steps. Plan sponsors should build a process for collecting vendor data, spotting disparities, and documenting follow-up when issues are identified. More importantly, employers may be able to more effectively negotiate with vendors for increased MHPAEA support leveraging the DOL’s vendor oversight list as an example of what the DOL expects from employers.

Preparing For Agency Review

The DOL encourages plan sponsors to be prepared in the case of a mental health parity compliance audit. Plan sponsors should be ready to:

• identify which NQTLs are at issue and map them to the relevant benefit classifications, including any exclusions, medical necessity standards, prior authorization requirements, concurrent review processes, network admission standards, or provider reimbursement methodologies;
• gather the operative plan documents, SPDs, policies, claims guidelines, administrative manuals, vendor protocols, and any other materials showing both the written terms and how those terms are applied in operation;
• confirm that the plan’s comparative analysis explains the factors, evidentiary standards, sources, and processes used for MH/SUD benefits and demonstrates how those items compare to the standards used for comparable medical/surgical benefits;
• engage TPAs, PBMs, behavioral health vendors, network administrators, and other service providers early, because those vendors often control the operational data, claims review criteria, provider contracting standards, reimbursement methodologies, and explanations needed to support the plan’s response;
• review the response for consistency across documents, vendor materials, and actual administration so that the plan does not provide conflicting explanations or rely on outdated policies; and
• if a potential issue is identified, evaluate whether corrective action is appropriate, including revising plan language, updating administrative practices, obtaining missing vendor support, reprocessing affected claims, or documenting why the plan believes the challenged standard satisfies MHPAEA.

Employer Takeaway: If the DOL comes knocking, plan sponsors should be able to quickly identify the challenged NQTL, produce the supporting comparative analysis and operational materials, and coordinate a consistent response with vendors.

Nonenforcement Policy for Certain Portions of the 2024 Final Rule

The Field Assistance Bulletin confirms that, while the DOL is continuing to enforce MHPAEA’s statutory requirements, it is not currently enforcing certain portions of the 2024 Final Rule while the agency reconsiders those rules through additional rulemaking. This nonenforcement position does not mean that plans can pause MHPAEA compliance altogether. Instead, it is targeted enforcement relief for certain regulatory requirements that were broadly contested as overly burdensome and complex. Importantly, the DOL clarified that it will continue to enforce MHPAEA’s statutory NQTL requirements, including the CAA requirement that plans perform and document comparative analyses for NQTLs.

Employer Takeaway: The nonenforcement policy provides some breathing room on certain contested 2024 Final Rule requirements, but it does not eliminate the need for current NQTL comparative analyses or a defensible parity compliance position.

Questions?

If you have any questions on identifying red flags or taking steps toward mental health parity compliance, be sure to reach out to your benefits counsel for further insight.