Quick Hits
- On September 8, 2026, the DOL issued a Field Assistance Bulletin No. 2026-03, indicating that the department intends to focus enforcement on three categories of health plan nonquantitative treatment limitations (NQTLs): (1) plan exclusions and some treatment limitations, (2) medical necessity standards and review process, and (3) standards for determining network adequacy with a focus on network admission standards and provider reimbursement methodologies.
- The DOL will not enforce certain regulations concerning NQTLs that were part of a 2024 final rule.
- The field assistance bulletin reflects that the DOL will focus on common NQTLs, including treatment limitations, such as prior authorization rules, fail-first or step therapy protocols, medical necessity standards, and network access.
The MHPAEA, as amended in 2021, generally prohibits group health plans from offering health coverage that imposes more restrictive requirements and limitations on mental health and substance use disorder benefits than on medical/surgical benefits.
The EBSA will now focus its primary NQTL enforcement efforts in three areas where the it believes there is the highest potential for significant harm to health plan participants:
- separate plan exclusions and some treatment limitations;
- medical necessity standards and review processes; and
- network adequacy standards, especially focused on network admission standards and provider reimbursement.
Those priorities appear consistent with the DOL’s most recent report to the U.S. Congress summarizing the EBSA’s MHPAEA enforcement activities.
In February 2025, the ERISA Industry Committee, an employer advocacy group, sued to block the DOL’s 2024 final rule to implement the MHPAEA. One key requirement in that final rule was that health plans covering specific mental health conditions or substance use disorders must provide meaningful coverage for that condition in every benefit classification where medical/surgical benefits are provided. The final rule only deems coverage to be “meaningful” if it includes at least one core treatment, meaning a standard therapy, service, or intervention supported by recognized independent standards of current medical practice for that condition in that classification. The final rule also required a plan fiduciary to attest to the plan’s compliance with the NQTL requirements.
In May 2025, federal regulators announced they would not enforce the portions of the 2024 rule that applied to NQTLs that were new compared to the 2013 final rule. The latest guidance confirms that the 2025 nonenforcement policy remains in place.
Principles Guiding Enforcement
The 2026 guidance outlines three enforcement principles:
- Federal regulators will prioritize cases involving blanket treatment exclusions applicable only to mental health and substance use disorder benefits, but may also address more limited plan exclusions, especially in response to participant complaints.
- While group health plans may continue to set narrower medical necessity limits on coverage, federal regulators will focus on prior authorization, concurrent review, and retrospective review provisions. Plan administrators may use proprietary clinical guidelines to make medical necessity determinations, as long as the processes, strategies, and evidentiary standards applied to mental health and substance use disorder benefits are comparable to, and are applied no more stringently than, those for medical/surgical benefits. However, plans must make these guidelines available to EBSA investigators and plan participants upon request.
- Federal regulators will prioritize enforcement of network adequacy rules, including network admission standards and provider reimbursement methodologies. The guidance reflects that regulators will expect the plan to “consider all available options” to ensure adequate in-network coverage for mental health and substance use disorder services.
Next Steps
Employers may wish to carefully review their group health plan design and administration to gauge compliance with the MHPAEA in light of this new guidance, as well as state laws on coverage for mental health and substance abuse disorders. Plan participants have the right to file class-action lawsuits for violations of MHPAEA. Employers that self-insure their group health plan may face an Internal Revenue Service (IRS) excise tax of $100 per day for each individual affected by violations of the MHPAEA.
Ogletree Deakins’ Employee Benefits and Executive Compensation Practice Group will continue to monitor developments and will post updates on the Employee Benefits and Executive Compensation and Healthcare blogs as additional information becomes available.
This article and more information on how the Trump administration’s actions impact employers can be found on Ogletree Deakins’ Administration Resource Hub.
Stephanie A. Smithey is a shareholder in Ogletree Deakins’ Indianapolis office.
Timothy J. Stanton is a shareholder in Ogletree Deakins’ Chicago office.
This article was co-authored by Leah J. Shepherd, who is a writer in Ogletree Deakins’ Washington, D.C., office.
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