By Nancy Mundy, RN, CHC, Senior Consultant
The 2024 MHPAEA Final Rule is being rewritten, and the Departments have now told the court when they expect the new proposed rule to move. Enforcement relief is in place, but it is narrower than it appears, and regulators have not slowed their NQTL audits. Here is where the rulemaking stands as of October 2026, what the Department of Labor’s latest guidance changed, and what health plans should be reviewing now.
The ERIC Litigation and the Departments’ Decision Not to Defend
As you may be aware, the 2024 MHPAEA Final Rule litigation involving the plaintiff, the ERISA Industry Committee (ERIC), resulted in the defendants — the U.S. Department of Health and Human Services, U.S. Department of the Treasury, and U.S. Department of Labor (collectively, the Departments) — determining that, rather than defend the rule, they will issue a new proposed rule, including anticipated significant revisions to the provisions of the rule that ERIC challenged in this lawsuit. ERIC’s complaint involves several final rule provisions that are problematic, including the rule’s “meaningful benefits” and “material differences” standards.
As part of the litigation process, joint status reports must be filed periodically. The most recent joint status report was released on September 30, 2026. It states that the Departments have made significant progress in developing a new proposed rule, which they now intend to send to the Office of Information and Regulatory Affairs (OIRA) for review on or before December 18, 2026. The next joint report is due to the court by November 16, 2026, in which the Departments intend to include more specific timing for the rule’s publication.
MHPAEA Enforcement Relief Applies Only to the 2024 Rule’s New Provisions
The Departments have committed not to enforce the 2024 Final Rule or pursue enforcement actions that occur prior to a final decision in the litigation, plus an additional eighteen (18) months. This enforcement relief applies only to the new portions of the 2024 Final Rule in relation to the 2013 Final Rule.
Currently, ATTAC Consulting Group (ACG) has seen many regulators at both the federal and state level demonstrating the use of the prior sub-regulatory FAQ 45 guidance during their Non-Quantitative Treatment Limitations (NQTL) audits and enforcements. Regulatory audits are continuing and compliance enforcement is still in place. In addition, several states now have their own parity regulatory requirements that are unique to each state.
DOL Field Assistance Bulletin 2026-03 Narrows NQTL Enforcement to Three Categories
On September 8, 2026, the Department of Labor published Field Assistance Bulletin 2026-03, highlighting its enforcement relief and its intent to narrow its enforcement focus areas relating to NQTL comparative analyses requests. The bulletin expresses the federal focus to be on NQTLs in the following three (3) categories, believed to carry the highest potential for significant harm to participants and beneficiaries:
- Separate treatment limitations, including exclusions
- Medical necessity standards and review process
- Standards for determining network adequacy, with a focus on network admission standards and provider reimbursement methodologies
Although focusing on the above, the bulletin is quick to explain that it may investigate other categories of NQTLs.
EBSA’s NQTL Enforcement Guidance Tool: What Health Plans Should Review
Within the Field Assistance Bulletin, the Department of Labor’s Employee Benefits Security Administration (EBSA) also released what it is calling an enforcement guidance tool. This tool is intended to assist organizations in being compliant while identifying potential red flags and best practices for NQTL compliance in the following areas:
- What to look for when reviewing a plan for potential MHPAEA NQTL compliance problems
- Best Practices for Keeping MHPAEA Compliance in Mind When Selecting Health Plan Service Providers
- Best Practices for Monitoring Operational Compliance for Specific NQTLs
- Examples of How Plans have Addressed Concerns during NQTL Investigations
- Tips for Plans Being Reviewed by DOL for NQTL Compliance
Although this information does not appear to expose any “secret sauce” used by regulators when auditing NQTLs, it does provide some useful information that ACG believes health plans and plan issuers should evaluate for potential exposure within their own operations. Unfortunately, the industry continues to see various auditing approaches for NQTL reviews from both federal and state regulators, with no indications of regulator interest in developing a single set of audit protocols.
Common Questions About the MHPAEA Rulemaking
Is the 2024 MHPAEA Final Rule still in effect?
The Departments have committed not to enforce the 2024 Final Rule, or pursue enforcement actions occurring prior to a final decision in the ERIC litigation, plus an additional eighteen (18) months. That relief applies only to the portions of the 2024 Final Rule that are new relative to the 2013 Final Rule. The 2013 requirements remain fully in force.
When will the new MHPAEA proposed rule be published?
The Departments have told the court they intend to send the new proposed rule to the Office of Information and Regulatory Affairs (OIRA) for review on or before December 18, 2026. The next joint status report is due November 16, 2026 and is expected to include more specific timing for publication.
What does Field Assistance Bulletin 2026-03 change?
It narrows the Department of Labor’s NQTL enforcement focus to three categories: separate treatment limitations, including exclusions; medical necessity standards and review process; and standards for determining network adequacy, with a focus on network admission standards and provider reimbursement methodologies. The bulletin states that DOL may still investigate other categories of NQTLs.
Do health plans still need NQTL comparative analyses?
Yes. The comparative analysis requirement is unchanged. Regulatory audits are continuing and compliance enforcement is still in place, and ACG has seen regulators at both the federal and state level using the prior sub-regulatory FAQ 45 guidance during NQTL audits. Several states also maintain their own parity regulatory requirements that are unique to each state.
NQTL Comparative Analysis and Parity Audit Support for Health Plans
ACG remains committed to assisting health plans and plan issuers in their pursuit of mental health parity compliance. In our experience, regulators have not slowed their NQTL parity oversight or enforcement activities. These activities have demonstrated aggressive and lengthy corrective actions and financial penalties, for which ACG is often engaged to assist with remediation. In addition, ACG has been engaged on an increased basis to perform targeted NQTL audits to assist health plans with assessing their parity compliance.
Although ACG does not provide legal advice, we are available to assist with your NQTL parity compliance through projects tailored specifically to meet your support needs.
Nancy Mundy, RN, CHC is a Senior Consultant at ATTAC Consulting Group specializing in compliance, behavioral health, and health plan operations. A registered nurse certified in healthcare compliance, she brings nearly 30 years of experience across Medicaid, Medicare Advantage, Part D, commercial, FEHB, and self-funded products, including service as a compliance and privacy officer on executive leadership teams. Her work spans compliance program design, audit planning, root-cause analysis, and leading organizations through external regulatory audits.
