Plan sponsors that interpreted the Trump administration’s non-enforcement of the 2024 mental health parity rule as a signal to stand down now have a clearer picture. On September 8, the DOL’s Employee Benefits Security Administration (EBSA) issued Field Assistance Bulletin No. 2026-03 (FAB 2026-03), identifying three enforcement priorities under the Mental Health Parity and Addiction Equity Act (MHPAEA) and publishing a detailed checklist of compliance red flags alongside it.
The bulletin does not change what the law requires, and its three enforcement priorities largely track areas EBSA has emphasized in prior annual reports to Congress. What FAB 2026-03 adds is a more accessible, operationally specific roadmap, including a published red-flags checklist, at a moment when many plan sponsors were uncertain whether enforcement had meaningfully relaxed.
In May 2025, the Departments of Labor, Health and Human Services, and Treasury announced they would not enforce the Biden-era 2024 MHPAEA final rule, citing an ongoing legal challenge by the ERISA Industry Committee (ERIC). On March 30, those same departments told a federal court they would issue a new proposed rule by December 31, rather than defend the 2024 rule in litigation. FAB 2026-03 arrived in September as the clearest signal yet that the pause on the 2024 rule does not equal a pause on enforcement. The underlying statutory obligations of MHPAEA, which date to 2008 and were reinforced by the Consolidated Appropriations Act, 2021 (CAA, 2021),remain fully in effect.
EBSA identified the three nonquantitative treatment limitation (NQTL) areas it believes present the greatest potential for participant harm. The first is treatment exclusions, specifically, blanket exclusions of treatments for mental health and substance use disorder (MH/SUD) conditions when comparable treatments are covered for medical or surgical conditions. EBSA singled out exclusions of applied behavior analysis for autism spectrum disorder, medications for opioid use disorder, and nutritional counseling for eating disorders as examples.
The second is medical necessity standards and review processes, where EBSA is focused on prior authorization, concurrent review, and retrospective review that applies more burdensome requirements to MH/SUD benefits than to medical or surgical benefits.
The third is network adequacy, targeting admission standards and provider reimbursement methodologies that push members toward out-of-network care for MH/SUD services.
These three areas are not a ceiling on enforcement. EBSA explicitly reserves the right to investigate other NQTLs, particularly where participant complaints are involved.
EBSA also published an accompanying resource that translates the three priorities into a checklist of specific red flags in plan documents and operations. Heather Stone Fletcher and David Shillcutt, members of the Employee Benefits and ERISA practice at Epstein Becker Green in Pittsburgh and Washington, DC respectively, noted in their analysis of the bulletin that EBSA characterizes these items as warning signs rather than automatic findings of noncompliance. A plan that identifies a red flag through a review of its plan documents or NQTL comparative analysis needs to investigate the surrounding context before concluding there is a genuine disparity.
The attorneys also flagged a critical limitation. Identifying a red flag and documenting a response does not create a safe harbor under MHPAEA, nor does it protect against private litigation. Plans that find a potential concern are advised to consult legal counsel before taking further action.
The bulletin explicitly frames its guidance as provisional. The departments have committed to issuing a new proposed rule by December 31, which means compliance work built around FAB 2026-03 is a current framework rather than a settled one. Self-funded plan sponsors and their advisors working through NQTL comparative analyses or plan document reviews will need to track what changes when that rule arrives.
