A Pause Is Not a Free Pass: Why Proactive Mental Health Parity Compliance Still Matters

By: Bryan M. Dunton, Esq.

A pause in enforcement can be mistaken for a pause in responsibility. For plan sponsors navigating uncertainty surrounding the Mental Health Parity and Addiction Equity Act’s (MHPAEA) 2024 Final Rule, waiting for the next regulatory development may seem appealing. However, guidance issued by the Department of Labor (DOL) on September 8, 2026, sends a different set of messages: that mental health parity remains an enforcement priority and regulators have been remarkably consistent about where they see the greatest risks to group health plans.

Field Assistance Bulletin 2026-03 directs the Employee Benefits Security Administration (EBSA) to focus on its non-quantitative treatment limitation (NQTL) compliance enforcement in three areas: separate treatment limitations and exclusions; medical necessity standards and review processes, including prior authorization, concurrent review, and retrospective review; and network adequacy with a particular focus on network admission standards and provider reimbursement methodologies.

An accompanying compliance tool identifies warning signs in both plan documents and daily administration and offers practical steps for monitoring and correction. This should be considered a recalibration by the regulators. The Departments’ May 2025 non-enforcement policy applies to portions of the 2024 Final Rule that modified the existing regulations. It does not suspend the MHPAEA’s underlying protections or the statutory requirement added by the Consolidated Appropriations Act, 2021, to perform and document NQTL comparative analyses. Nor does the Field Assistance Bulleting prohibit the EBSA from investigating other NQTLs, particularly in response to plan participant complaints.

The Federal Audit Record

For anyone following the annual MHPAEA Reports to Congress, the Bulletin’s priorities should sound eerily familiar.

The Phia Group reviewed the audit results published in the annual MHPAEA Reports to Congress from 2023 through 2025 and found the following audit reasons and calculated their frequency. Prior authorization led with 63 instances (22.9%), followed by network admission standards at 39 (14.2%), concurrent review at 32 (11.6%), and Applied Behavior Analysis (ABA) therapy/Autism Spectrum Disorder-related limits at 28 (10.2%). Medical necessity standards, out-of-network access, and a smattering of others rounded out the remainder of the list. These figures describe requests for comparative analysis (i.e., reason for the audit), but importantly, did not confirm violations or the percentage of plans ultimately out of compliance.

When comparing the Bulletin’s list against the Reports to Congress list, the consistency and alignment of the regulators is striking. The Bulletin and its companion guidance largely formalize the same risk areas federal investigators have already been examining for years, even after last year’s pause on the 2024 Final Rule.

Meaningful Changes in Access to Care

The consequences of enforcement go beyond an exercise in the druthers of compliance paperwork. EBSA reported in the most recent MHPAEA Report to Congress that enforcement work during August 2023 through July 2025 resulted in coverage corrections impacting more than 18 million plan participants across more than 39,000 group health plans. Those figures do not include instances of employers that have voluntarily gone through an NQTL comparative analysis process and proactively addressed parity concerns, including many which have been addressed by The Phia Group.

The financial stakes are high as federal enforcement settlements sometimes approach tens of millions in participant reimbursement and penalties. These developments reinforce that MHPAEA compliance is more than an administrative exercise. It has tangible implications for plan participants, plan sponsors, and vendors administering benefits for plans.

Build Your Defensive Gameplan

Getting an NQTL comparative analysis completed for your group is only part of the solution, as it will not do much good collecting dust in a filing cabinet. The analysis is meant to be the beginning of the road as it identifies all NQTLs in plan design and administration and evaluates how factors and evidentiary standards operate. The analysis also looks at de-identified claims data to reveal any latent patterns that are out of parity. Taking corrective action after the analysis is the second step in maintaining a plan design this is defensible under the MHPAEA.

The companion guidance recently issued by regulators expressly encourages ongoing monitoring by group health plans and demonstrablxe corrective action, among other activities. While proactive action doesn’t guarantee regulators will never look under the hood of a given plan, it absolutely places those group health plans in a more defensible position, as opposed to waiting until an audit investigation begins.

Regulatory priorities can change and new proposed rulemaking is due by year’s end. However, it is still prudent for group health plans to assess MHPAEA compliance proactively and document steps taken to correct any deficiencies identified during an NQTL comparative analysis.

The Phia Group’s dedicated MHPAEA subject matter experts can guide your groups through the NQTL comparative analysis to reduce regulatory exposure while improving access to care. For more information, please contact us at phia-NQTL@phiagroup.com.