By: HUB's EB Compliance Team
The Department of Labor's ("DOL") Employee Benefits Security Administration ("EBSA") recently issued Field Assistance Bulletin 2026-03 ("FAB 2026-03"), outlining a narrowed enforcement approach to the Mental Health Parity and Addiction Equity Act's ("MHPAEA") nonquantitative treatment limitation ("NQTL") comparative analysis requirements. The bulletin identifies three specific priority areas for investigation though it is important to recognize that, while certain 2024 rule provisions remain unenforced, the underlying statutory NQTL obligations and consequently a plan sponsor’s compliance obligations still apply.
Background: The 2024 Rule and Ongoing Litigation
The DOL, Department of Health and Human Services, and Department of the Treasury (the "Departments") issued a final rule in September 2024 implementing NQTL comparative analysis requirements added by the Consolidated Appropriations Act, 2021, with most provisions set to apply to plan years beginning on or after January 1, 2026.
The rule quickly faced legal challenges. In January 2025, the ERISA Industry Committee filed a lawsuit seeking to invalidate the 2024 rule, arguing it was arbitrary, unworkable, and inconsistent with MHPAEA's statutory text. Then in May 2025, the Departments announced they would not enforce portions of the 2024 rule that were new relative to the 2013 rule, pending resolution of the litigation plus an additional 18 months. By March 2026, the Departments disclosed they no longer intend to defend the 2024 rule and instead plan to propose replacement regulations by the end of the year.
Throughout this process, the Departments have consistently maintained that the MHPAEA's underlying statutory obligations remain fully in effect, including the NQTL comparative analysis requirement.
FAB 2026-03's Three Enforcement Priorities
FAB 2026-03 states that EBSA will concentrate its NQTL enforcement resources on three areas presenting the highest risk of participant harm:
- Separate treatment limitations and blanket exclusions. EBSA will prioritize cases involving exclusions applied only to mental health or substance use disorder ("MH/SUD") benefits where comparable medical/surgical treatments are covered.
- Medical necessity standards and utilization review. EBSA will examine prior authorization, concurrent review, and retrospective review processes. Plans may use proprietary clinical guidelines but must apply comparable standards to both MH/SUD and medical/surgical benefits, making those guidelines available to participants and investigators upon request.
- Network adequacy, admission standards, and reimbursement methodologies. EBSA will scrutinize whether inadequate MH/SUD networks are forcing participants toward costlier out-of-network care.
EBSA emphasized that these are enforcement priorities only and not the exclusive scope of review; the agency may still investigate other NQTL categories, particularly in response to participant complaints.
Analysis: What Changed and What Didn't
FAB 2026-03 does not alter a plan sponsors' legal obligations under MHPAEA. The NQTL comparative analysis requirement has been in effect since 2021 and continues to apply. What has changed is how the EBSA will direct its enforcement resources focusing on the three areas above with a commitment to providing advance, reasonable notice before pursuing enforcement action.
The bulletin is explicitly framed as internal Department policy that creates no private right of action. It is not a substitute for the 2024 rule or any forthcoming replacement rule, and it does not resolve the pending litigation.
Conclusion
FAB 2026-03 reflects a recalibration of EBSA's enforcement priorities rather than a relaxation of MHPAEA's substantive requirements. Plan sponsors should treat the bulletin as a signal of where audit risk is concentrated today, while continuing to monitor both the ERIC litigation and the Departments' expected rulemaking, either of which could reshape NQTL compliance obligations before year-end.
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