Mental health parity is still the law in 2026. The Mental Health Parity and Addiction Equity Act (MHPAEA), its 2013 regulations, and the 2021 requirement that health plans document comparative analyses of their nonquantitative treatment limitations (NQTLs) are all enforceable today. What is paused is federal enforcement of the provisions the 2024 final rule added. On September 8, 2026, the Department of Labor's Employee Benefits Security Administration (EBSA) issued Field Assistance Bulletin (FAB) 2026-03, which focuses its NQTL enforcement on three areas: blanket exclusions of mental health and substance use disorder (MH/SUD) treatment, medical necessity review, and network adequacy. For providers, that makes two documents the most useful things to request after a denial: the plan's medical necessity criteria and its NQTL comparative analysis.
Below, for behavioral health (BH) and substance use disorder (SUD) programs: what is enforceable now, which plans parity reaches, and how to add parity to appeals, with a checklist and sample request.
The short version
- The MHPAEA statute, the 2013 rule and the 2021 comparative analysis requirement are enforceable today. Provisions new in the 2024 rule are under a federal nonenforcement policy.
- FAB 2026-03 focuses EBSA on separate treatment limitations (including exclusions), medical necessity standards and review, and network adequacy.
- Plans may use proprietary clinical guidelines, but must apply them no more stringently to MH/SUD care than to medical/surgical care and provide them on request.
- In-network providers can request medical necessity criteria directly. For the claim file and comparative analyses, act as the patient's authorized representative.
- Parity is a second ground of appeal, not a substitute for the clinical case.
- Medicaid managed care follows separate CMS parity rules, and the Departments have told a federal court they intend to propose a new MHPAEA rule by December 31, 2026.
What MHPAEA requires
MHPAEA generally prohibits group health plans and insurers from imposing more restrictive requirements and limitations on MH/SUD benefits than on medical/surgical benefits. It does not require a plan to cover MH/SUD care; it applies when a plan covers both.
Financial requirements and quantitative limits. Copays, coinsurance, deductibles and day or visit limits are compared within six classifications: inpatient and outpatient (each in-network and out-of-network), emergency care, and prescription drugs. A type of limit can apply to MH/SUD benefits only if it applies to at least two-thirds of medical/surgical benefits in the classification, and it can be no more restrictive than the predominant level (the level applied to more than one-half of them).
Nonquantitative treatment limitations. This is where most BH and SUD denials live: medical necessity criteria, prior authorization, concurrent review, fail-first rules, network admission standards and reimbursement methods. The processes, strategies, evidentiary standards and other factors used to apply an NQTL to MH/SUD benefits must be comparable to, and applied no more stringently than, those used for medical/surgical benefits in the same classification, as written and in operation. The Departments have stressed that the test is the process, not whether the outcome is identical.
Comparative analyses. The Consolidated Appropriations Act, 2021 (CAA, 2021), enacted December 27, 2020, requires plans and insurers that impose NQTLs to perform and document a comparative analysis of each one and, since February 10, 2021, to produce it to federal or state regulators on request. The analysis must cover the plan terms, the factors and evidentiary standards used, the comparison as written and in operation, and the plan's conclusions.
Two older disclosure duties matter most to providers. The criteria for MH/SUD medical necessity determinations must be made available on request to any current or potential participant, beneficiary, or contracting provider, and the reason for any denial must be made available to the participant.
What is enforceable today, and what is paused
- November 13, 2013: final MHPAEA rule published (78 FR 68240).
- December 27, 2020: CAA, 2021 adds the comparative analysis requirement.
- September 9, 2024: the Departments of Labor, HHS and the Treasury issue the 2024 final rule (89 FR 77586), applying in stages to plan years beginning on or after January 1, 2025 and 2026.
- January 17, 2025: the ERISA Industry Committee (ERIC) sues in federal court in Washington, D.C., challenging parts of the rule.
- May 15, 2025: the Departments say they will not enforce the 2024 rule for failures before a final decision in the ERIC case plus 18 months, only for portions new relative to the 2013 rule, and that MHPAEA's statutory obligations continue.
- March 30, 2026: the Departments tell the court that rather than defend the rule, they will issue a proposed rule with anticipated significant revisions no later than December 31, 2026.
- September 8, 2026: EBSA issues FAB 2026-03 and a companion enforcement guidance tool.
| Requirement | Source | Federal status, October 2026 |
|---|---|---|
| Parity for cost sharing and day or visit limits | Statute; 2013 rule | Enforced |
| NQTLs no more stringent, as written and in operation | Statute; 2013 rule | Enforced, focused on the three FAB areas |
| Comparative analyses produced to regulators on request | CAA, 2021 | Enforced, with a narrower EBSA focus |
| Medical necessity criteria on request; reason for any denial | Statute; 2013 rule | Enforced; restated in FAB 2026-03 |
| Claim file and plan document access | ERISA section 104(b); claims procedure rules | Enforced |
| New 2024 provisions, such as the meaningful benefits standard, the ban on discriminatory factors, and data evaluation requirements | 2024 final rule | Not enforced federally |
| Medicaid managed care, CHIP and benchmark plan parity | CMS rules from 2016 | Separate; not amended by the 2024 rule |
Two cautions. States are the primary enforcers against insurers, and HHS encouraged them to adopt a similar nonenforcement approach, so insured coverage can differ by state. And the FAB describes itself as internal policy that creates no enforceable rights: it changes where EBSA spends resources, not what the statute says.
This article is general information, not legal advice. For a specific dispute, talk to counsel who handles ERISA, insurance and Medicaid matters in your state.
What FAB 2026-03 says
The bulletin, from Assistant Secretary Daniel Aronowitz, responds to industry reports that prior comparative analysis enforcement created substantial confusion and unnecessary burden. EBSA will prioritize three categories:
- Separate treatment limitations, including exclusions. Plans can apply medical necessity and experimental-treatment standards, but generally cannot exclude treatments for covered MH/SUD conditions where similar medical/surgical treatments are covered. Blanket MH/SUD-only exclusions come first; narrower ones may be addressed, especially after complaints.
- Medical necessity standards and review. The focus is prior authorization, concurrent review and retrospective review. Proprietary clinical guidelines are allowed if applied comparably and no more stringently, and plans must make them available to participants on request.
- Network adequacy, focusing on network admission standards and provider reimbursement methods. Where there are network adequacy parity issues, EBSA will ensure plans consider all available options and help participants get covered treatment without exposure to out-of-network costs.
EBSA adds that it may investigate other NQTLs as issues arise, particularly after participant complaints.
Red flags that matter to BH and SUD programs
The companion tool, "Identifying Potential Problems," lists warning signs, including:
- Exclusion of residential, intensive outpatient (IOP) or partial hospitalization (PHP) programs, or of medications for addiction treatment such as methadone, naltrexone or buprenorphine.
- Prior authorization or concurrent review for all or almost all MH/SUD benefits but few or no medical/surgical benefits.
- Treatment plan submission requirements, especially where claims are denied for detailed content and formatting rules.
- MH/SUD-only criteria, such as requiring the patient to be fully motivated or to exhaust "community resources."
- Shorter authorization periods, longer authorization timelines, or a manual process for MH/SUD when medical/surgical requests are automated.
- Reimbursement discounts for masters-level MH/SUD clinicians that masters-level medical/surgical providers do not face.
Which plans parity applies to
The right citation, regulator and appeal clock all depend on the coverage.
| Coverage | Parity rule | Regulator | Appeal clock |
|---|---|---|---|
| Private employer plan, self-funded (ERISA) | ERISA section 712; 29 CFR 2590.712 | Labor (EBSA) and Treasury | At least 180 days to appeal; four months to request external review |
| Private employer plan, fully insured | Same, plus insurer duties | Labor for the plan; state for the insurer | Same ERISA rules; state or federal external review |
| State or local government plan | Public Health Service Act; 45 CFR 146.136 | HHS (CMS) | Plan appeal, then external review |
| Individual market | MHPAEA, extended by the Affordable Care Act | State insurance department | Insurer appeal, then external review |
| Small group (generally 1 to 50 employees) | Not directly; non-grandfathered coverage through essential health benefit rules | State insurance department | Insurer appeal, then external review |
| Medicaid managed care (MCO, PIHP, PAHP) | 42 CFR part 438, subpart K | State Medicaid agency, CMS | 60 days to file one plan appeal; decision within 30 days at most (72 hours expedited); then State fair hearing |
| Medicare | Not subject to MHPAEA | CMS | Medicare appeal rules |
CHIP and Medicaid benchmark plans have their own parity rules (42 CFR 457.496 and 440.395). Self-funded state and local government plans can no longer elect to opt out of MHPAEA after the Consolidated Appropriations Act, 2023, apart from a limited extension for some collectively bargained plans. In Medicaid, if an MCO does not cover the full benefit package, the state must assess MCO and fee-for-service benefits together and post its parity documentation on its Medicaid website, a public document worth quoting. If the plan type is unclear, ask the plan.
How to use parity in denials and appeals
A reviewer who denied residential SUD treatment will first ask whether your documentation meets the criteria, so build the clinical case first (see our ASAM level of care documentation guide). Then add parity as a separate ground: the criteria, process or exclusion applied to this MH/SUD service is stricter than what the plan applies to comparable medical/surgical care in the same classification.
Find the comparator
The 2013 rule's preamble supplies the anchors: if a plan treats skilled nursing or rehabilitation hospital care as inpatient, residential MH/SUD treatment is inpatient too; if home health care is outpatient, so are IOP and PHP.
| Denial pattern | Parity question | What to request |
|---|---|---|
| Residential stay denied as "treatable at a lower level" | Are skilled nursing or rehab stays reviewed as strictly? | Criteria for both; the medical necessity comparative analysis |
| Frequent concurrent review, short IOP or PHP authorizations | Are comparable medical services reviewed as often? | Authorization length and review frequency standards for both |
| Denial for a missing or misformatted treatment plan | Does any medical benefit require similar submissions? | Submission rules; the prior authorization analysis |
| Denial citing motivation or unused community resources | Does any medical benefit use this criterion? | The criteria text and its evidentiary basis |
| No in-network clinician, patient billed out-of-network | Are network exceptions offered as for medical care? | Network exception policy and admission standards |
What you can request, and who can ask
- Medical necessity criteria: any contracting provider can request them directly. Medicaid managed care has the same rule (42 CFR 438.915).
- The claim file: under the ERISA claims rule, the claimant or authorized representative gets free access to all documents relevant to the claim. The denial must cite the guideline relied on (or offer a free copy) and explain the clinical judgment (or offer to).
- Comparative analyses: the Departments' April 2021 FAQs say ERISA plans must provide them to participants on request, and that a provider acting as authorized representative may ask. The 2024 rule restated this, but given that rule's status, cite the 2021 FAQ and the underlying ERISA disclosure and claims rules.
- Medicaid case file: plans must provide it free and before the appeal decision (42 CFR 438.406). A provider may appeal for the enrollee with written consent, if state law permits.
Sample request language
I am the authorized representative of [Patient name], Member ID [number] (designation enclosed). On [date], the plan denied [service, for example ASAM Level 3.5 residential treatment], claim [number], as not medically necessary. Under the Mental Health Parity and Addiction Equity Act [ERISA section 712 and 29 CFR 2590.712(d), or 42 CFR 438.915 for Medicaid] and the claims and appeal rules [29 CFR 2560.503-1, or 42 CFR 438.406], please provide, free of charge: (1) the medical necessity criteria used, including guideline name, edition and section; (2) the criteria and review process applied to comparable medical/surgical benefits in the same classification [for example, skilled nursing stays]; (3) the comparative analysis for each NQTL applied to this claim [medical necessity criteria, prior authorization, concurrent review]; and (4) all documents relevant to the claim, including reviewer notes and credentials. This request does not replace our appeal, which we will file by [deadline].
For Medicaid managed care, swap item 3 for the state's posted parity compliance documentation.
A practical parity appeal checklist
- Identify the coverage type; it decides the law you cite and where you escalate.
- Calendar deadlines on day one: at least 180 days for ERISA appeals, 60 days for Medicaid managed care, four months for external review; ask for expedited review when care is urgent.
- File the plan's authorized representative form, or get written enrollee consent for Medicaid.
- Note the guideline, edition, rationale and reviewer named in the denial.
- Request criteria for the service and its medical/surgical comparator, the claim file, and the comparative analysis.
- Write the clinical case first, then the parity ground: the NQTL, the comparator, and exactly how the MH/SUD process is stricter.
- Cite FAB 2026-03 as evidence of EBSA's focus, not as a source of rights, and record any document the plan fails to produce.
- Escalate to external review or a State fair hearing, and file complaints with EBSA (askebsa.dol.gov or 1-866-444-3272), CMS ([email protected]), or the state insurance department or Medicaid agency.
- Log denials by payer, service and NQTL. Patterns are what the DOL red flags describe. Our denial codes guide helps with the coding side.
Free templates
Medical necessity appeal letter templates (Word)
Three editable first-level appeal letters for behavioral health and SUD: a CO-50 denial, a level-of-care downgrade and a continued stay denial, each with a checklist of what to do before writing and the records to attach. Add the parity request language above where the denial rests on a plan's criteria.
Get the appeal letter templates Free, with a work email.
What to watch next
The Departments told the court they intend to issue a proposed rule by December 31, 2026; none had been published in the Federal Register as of late September 2026, and a proposal would open a comment period rather than change obligations overnight. Until then, the working rulebook stays the same, and so does the response: document the clinical case, request the criteria, and keep evidence of how MH/SUD claims are treated.
How Adentris helps
Adentris reviews every active chart, not a sample, against payer and regulatory rules before claims go out, including ASAM level of care and medical necessity, and each finding cites the rule that fired. When denials arrive, Denial Fightback clusters them by root cause, targets prevention at the source, and builds regulation- and parity-cited appeals. It works on top of any EHR, connecting through its API or FHIR, HL7 feeds, an API our agents build where none exists, or the AI Web Agent, usually with no IT project on your side, and is typically live in about 30 days. At Resilient Recovery Treatment, a multi-site SUD network in Los Angeles, denials fell 62%. To see it on your own charts, book a 30-minute call with our team.
Related reading
- Medical Necessity Documentation for Behavioral Health: What Payers Require
- Denial Codes in Behavioral Health: The CARCs That Cost BH and SUD Programs the Most
- Texas AG Investigates Blue Cross Blue Shield of Texas Over Denials and Prior Authorization Delays
Sources
- DOL EBSA: Field Assistance Bulletin 2026-03
- DOL EBSA: Identifying Potential Problems (MHPAEA)
- Departments' nonenforcement statement (May 15, 2025)
- ERIC v. HHS joint status report (March 30, 2026)
- 2024 final rule, 89 FR 77586
- 2013 final rule, 78 FR 68240
- MHPAEA and CAA, 2021 FAQs Part 45 (April 2, 2021)
- 29 U.S.C. 1185a (ERISA section 712)
- 29 CFR 2590.712
- 29 CFR 2560.503-1
- 29 CFR 2590.715-2719
- 42 CFR part 438, subpart K
- 42 CFR part 438, subpart F
- Medicaid and CHIP parity rule, 81 FR 18390
- CMS: MHPAEA overview
- CMS: Sunset of the MHPAEA opt-out (June 7, 2023)
- DOL: Treatment limitation documentation request form
Frequently asked questions
What is the Mental Health Parity and Addiction Equity Act?
A federal law that generally bars group health plans and insurers from imposing more restrictive financial requirements or treatment limitations on mental health and substance use disorder benefits than on medical/surgical benefits, including nonquantitative limits such as medical necessity criteria and prior authorization.
Is the 2024 mental health parity rule being enforced?
Not its new provisions. Since May 15, 2025, the Departments have said they will not enforce portions of the 2024 rule that are new relative to the 2013 rule. The statute, the 2013 rule and the 2021 comparative analysis requirement still apply, and the Departments have told a federal court they intend to propose a new rule by December 31, 2026.
What is DOL Field Assistance Bulletin 2026-03?
EBSA guidance dated September 8, 2026 that focuses MHPAEA enforcement on separate treatment limitations including exclusions, medical necessity standards and review, and network adequacy. It is internal policy and does not create enforceable rights.
Can a provider request an NQTL comparative analysis?
Yes, as the patient's authorized representative. The Departments' 2021 FAQs say ERISA plans must provide comparative analyses to participants on request and that a provider acting as authorized representative may request them.
Does mental health parity apply to Medicaid?
Yes, through separate CMS rules for Medicaid managed care, CHIP and Medicaid benchmark plans. Managed care plans must make medical necessity criteria available to enrollees and contracting providers on request. Medicare is not subject to MHPAEA.
How do I use parity in a mental health or SUD appeal?
Make the clinical case first, then add parity as a second ground: request the criteria for the service and a comparable medical/surgical benefit, the claim file and the comparative analysis, and show how the MH/SUD process is stricter. Meet every appeal deadline while you wait.
