Recently, the Department of Labor issued Field Assistance Bulletin 2026-03 (FAB 2026-03 or the Bulletin) to clarify its enforcement approach to the parity requirements for non-quantitative treatment limitations under the Mental Health Parity and Addiction Equity Act (MHPAEA).  A corresponding compliance tool intended to assist plan sponsors evaluate, monitor and address key parity requirements was also released.

Background

MHPAEA generally requires group health plans and insurers offering mental health or substance use disorder (MH/SUD) 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 co-pays, co-insurance) and treatment limitations – quantitative and non-quantitative (NQTLs).
• Under MHPAEA, health plans and insurers must perform and document comparative analyses of the design and application of their NQTLs.

NQTL Enforcement Areas

FAB 2026-03 states that the DOL will focus its enforcement efforts on the following three categories, which it views as presenting the greatest potential for participant harm:

• Separate treatment limitations for MH/SUD conditions, including 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.
• Medical necessity standards and review process, including prior authorization, concurrent review and retrospective review.
  • Although prior authorization and concurrent review have previously been identified as enforcement priorities, the Bulletin adds retrospective review.
  • The Bulletin clarifies that MHPAEA does not prohibit plans from using proprietary clinical guidelines for medical necessity determinations. However, the processes, strategies, evidentiary standards and other factors used to apply these NQTLs to MH/SUD benefits must be comparable to and applied no more stringently than those used for M/S benefits. Additionally, the guidelines must be made available to the DOL and participants upon request.
• Standards for determining network adequacy, with a focus on network admission standards and provider reimbursement methodologies.
  • Although plan sponsors may not have the ability to force immediate, broad-scale network improvements, the compliance tool addresses examples of actions that may be more feasible to implement.

Although the DOL will prioritize enforcement in these areas, the Bulletin notes that it may investigate other NQTL categories as issues arise, particularly in response to participant complaints.

Compliance Tool

In addition to identifying red flags related to the three priority enforcement areas, the tool also addresses:

• Red flags related to quantitative treatment limits and other NQTL categories
• Best practices to prudently select and monitor plan service providers, including a detailed list of MHPAEA-focused questions for fiduciaries to ask existing and prospective service providers.
• Best practices for monitoring operational compliance
• Examples of issues identified during DOL investigations and how those were addressed

Client Actions

The guidance highlights areas where group health plans can focus their compliance efforts.  Clients should:

• Review the red flags identified in the compliance tool against plan documentation and operations to identify potential compliance concerns
• Ensure NQTL analyses are complete and documented. Although enforcement of final rules issued in 2024 has been suspended, this is still required under the final 2013 regulations.
• Ensure MHPAEA is being considered when evaluating and selecting new service providers and that existing service providers are being monitored
• Continue to ensure compliance with all other aspects of MHPAEA

Your Piper Jordan account team is here to help and can answer any questions.

Additional Resources:

2013 MHPAEA regulations

Previous Piper Jordan alert: Enforcement of Final 2024 MHPAEA Rules Suspended

Information contained in this email is intended for general information purposes only and should not be considered legal or tax advice or legal or tax opinion on any specific facts or circumstances. Recipients are urged to consult their legal counsel and tax advisor concerning any legal or tax questions that may arise.