DOL’s MHPAEA playbook: New enforcement priorities and self-evaluation tool

MHPAEA Background

MHPAEA requires group health plans and health insurance issuers to ensure that NQTLs applicable to mental health and substance use disorder (MH/SUD) benefits are no more restrictive than the predominant NQTLs applied to substantially all medical and surgical (M/S) benefits within the same classification. The Consolidated Appropriations Act, 2021 (CAA 2021) strengthened these requirements by mandating that plan sponsors perform a comparative analysis of their NQTLs and make such comparative analyses available to plan participants and beneficiaries upon request.

On September 9, 2024, the Departments of Labor, Health and Human Services, and Treasury (the Departments) issued a final rule (2024 Final Rule) implementing the NQTL comparative analyses requirements mandated by the CAA 2021. The 2024 Final Rule became effective on November 22, 2024, with staggered applicability dates (certain amendments applied to plan years beginning on or after January 1, 2025, and all amendments applied to plan years beginning on or after January 1, 2026).

On January 17, 2025, the ERISA Industry Committee (ERIC) filed suit in the US District Court for the District of Columbia challenging key provisions of the 2024 Final Rule. In light of the litigation, which has been stayed since May 2025, and in light of President Trump’s Executive Order 14219 directing agencies to review regulations that may impose undue burdens on small businesses or significant costs not outweighed by public benefits, the Departments issued a nonenforcement policy on May 15, 2025, under which the Departments will not enforce the 2024 Final Rule or otherwise pursue enforcement actions for noncompliance occurring prior to a final decision in the ERIC litigation, plus an additional 18 months. The Departments further indicated they would undertake a broader reexamination of their respective enforcement approaches under MHPAEA, including provisions amended by the CAA 2021.

Priority Enforcement Categories for NQTLs

The FAB identifies three categories of NQTLs where EBSA will focus its comparative analysis enforcement efforts, based on what it views as the areas presenting the “highest potential for significant harm to plan participants and beneficiaries.”

1. Separate Treatment Limitations, Including Exclusions. EBSA will focus on blanket treatment exclusions applicable only to MH/SUD benefits, but may also address more limited exclusions, particularly in response to participant complaints. 
2. Medical Necessity Standards and Review Processes. EBSA will scrutinize prior authorization, concurrent review, and retrospective review processes applied to MH/SUD benefits. Plans may use proprietary clinical guidelines for medical necessity determinations, but the processes, strategies, and evidentiary standards used for MH/SUD benefits must be comparable to, and no more stringently applied than, those applied to M/S benefits. Plans must make their clinical guidelines available upon request during investigations and to participants.
3. Network Adequacy Standards, Including Provider Reimbursement Methodologies. Because inadequate MH/SUD provider networks could force participants to seek out-of-network care at higher cost or forgo treatment altogether, EBSA will examine network admission standards and provider reimbursement methodologies and will consider whether plans are considering all available options to help participants access covered MH/SUD treatments without exposure to out-of-network costs.

Companion Enforcement Tool

Alongside the FAB, EBSA released a companion enforcement guidance tool designed to help plans and issuers identify potential compliance problems before EBSA does. The tool organizes “red flags” by the three priority categories and provides practical checklists for self-evaluation. Key red flags include:

1. Exclusions: Blanket exclusions of applied behavior analysis (ABA) therapy, speech therapy, or occupational therapy for autism spectrum disorder; exclusion of medications for addiction treatment; exclusion of nutritional counseling for eating disorders where covered for M/S conditions; and exclusion of residential treatment, intensive outpatient programs, or partial hospitalization for MH/SUD.
2. Medical Necessity: Prior authorization required for all or substantially all MH/SUD services but not for comparable M/S services; age limits on MH/SUD services (such as ABA therapy) with no corresponding M/S limits; additional review requirements for MH/SUD (e.g., care manager review, utilization review); and requirements such as mandatory parental involvement, exhaustion of community resources, or step therapy/fail-first protocols.
3. Network Adequacy: More burdensome credentialing requirements for MH/SUD providers; longer wait time standards for MH/SUD claims and appeals; absence of network gap exception procedures for MH/SUD where they exist for M/S; and different reimbursement rate methodologies for MH/SUD versus M/S providers.
4. Operational Disparities: Written plan provisions that do not match actual practice (with more burdensome processes for MH/SUD in operation); longer timelines for MH/SUD prior authorization decisions; automated prior authorization for M/S with manual processes for MH/SUD; and disparate out-of-network utilization rates suggesting network inadequacy.

The tool explicitly notes that it is not an exhaustive list of red flags. The guidance tool also includes a set of 14 questions that plan fiduciaries should consider asking third-party administrators, behavioral health organizations, and other service providers about their MHPAEA compliance processes, network adequacy monitoring, and data access capabilities as part of the selection process. 

The companion tool also provides monitoring checklists for common NQTLs, including practical tips for reviewing medical necessity standards and review processes, network adequacy determinations, and out-of-network reimbursement methodologies. The tool also includes examples of how plans have successfully resolved DOL concerns during investigations, such as voluntarily expanding telehealth and gap policies, removing blanket preauthorization requirements for MH/SUD services, and eliminating ABA therapy exclusions.

Employers, plan sponsors and plan fiduciaries should use EBSA’s enforcement guidance tool as an internal compliance checklist. The tool’s red flag examples, checklists and service provider questions provide a practical framework for self-evaluation, and proactively walking through these materials before receiving a DOL inquiry could help identify and remediate potential issues.

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If you have any questions about this Legal Briefing, please feel free to contact any of the attorneys listed or the Eversheds Sutherland attorney with whom you regularly work.