The Department of Labor (“DOL”) recently issued Field Assistance Bulletin 2026-03 and an 11-page guidance document to provide guidance regarding the DOL’s enforcement priorities related to the Mental Health Parity and Addiction Equity Act’s (“MHPAEA”) nonquantitative treatment limitations (“NQTL”) requirements. This follows the nonenforcement policy announced by the Departments of Labor, Treasury and Health and Human Services (the “Departments”) in May 2025 with respect to the 2024 MHPAEA final regulations that appears to have been taken to be consistent with a pending lawsuit challenging the 2024 regulations. 

The Field Assistance Bulletin and guidance document provides plan sponsors and plan fiduciaries with a sense of the DOL’s focus with respect to mental health parity compliance related to NQTLs. The DOL indicates it is focused on areas of mental health parity compliance that have the highest potential to inflict significant harm on participants. Some highlights of the guidance include: 

• The DOL will focus on separate treatment limitations, including exclusions for mental health and substance use disorder (“MH/SUD”) treatments where similar treatments are covered for medical/surgical treatments. Specific exclusions related to services for covered MH/SUD conditions called out by the DOL include:
  • applied behavioral therapy, speech therapy or occupational therapy for autism spectrum disorder,
  • medications for addiction treatment,
  • nutritional counseling or medical nutritional therapy for eating disorders, and
  • residential treatment programs, intensive outpatient programs, or partial hospitalizations when intermediate levels of care such as skilled nursing, home health or rehabilitation programs are provided for medical surgical treatments.
• The DOL will focus on medical necessity standards and review processes, such as prior authorization, concurrent review and retrospective review. Medical necessity determinations are not inherently problematic. The key is that they cannot be applied more stringently for MH/SUD treatments than for medical/surgical treatments. For example, the DOL specifically called out imposing age limits on treatments for autism spectrum disorder where similar age restrictions don’t apply for medical/surgical treatments.
• The DOL will focus on standards for determining network adequacy with a focus on network admission standards and provider reimbursement methodologies.

Even though the Departments, including the DOL, will not enforce the 2024 regulations’ detailed requirements regarding the comparative analysis report in the near future, it is still important for plan sponsors and fiduciaries to take into account the DOL’s recent guidance and obtain the comparative analysis because the statutory requirement still exists. In addition: 

• Complying with the nondiscrimination provisions of the MHPAEA is part of the fiduciary duties of the plan’s fiduciaries. The comparative analysis report may help plan fiduciaries identify any deficiencies that should be addressed and help demonstrate that they have engaged in a prudent process.
• A participant still might be able to request the report as part of an ERISA Section 104(b)(4) document request for which the penalty for failure to produce can be up to $110 per day. Even if the 2024 regulations are not enforced, until they are replaced with new regulations, a court could potentially conclude that the comparative analysis is a document that a participant is entitled to given that the preamble to the 2024 regulations indicated as such.