Mental health parity rules for employer health plans in 2026

Mental health parity means a group health plan that covers mental health and substance use disorder (MH/SUD) benefits cannot make them harder to get or more expensive to use than comparable medical and surgical benefits. The federal law is the Mental Health Parity and Addiction Equity Act (MHPAEA). As of October 2026 the statute and the 2013 regulations apply in full, while the agencies are not enforcing the parts of the September 2024 final rule that went beyond the 2013 rule.

Who has to comply

MHPAEA does not require a plan to cover mental health care at all. It says that if a plan covers MH/SUD benefits, those benefits have to be on par with the medical benefits in the same classification. The classifications are inpatient in-network, inpatient out-of-network, outpatient in-network, outpatient out-of-network, emergency care and prescription drugs.

• Large group. Plans of employers with more than 50 employees are covered directly by the federal statute, whether insured or self-funded. ERISA plans are enforced by the Department of Labor's Employee Benefits Security Administration (EBSA).
• Small group. The original statute exempted small employers, but the Affordable Care Act made mental health and substance use disorder services an essential health benefit and applied parity to non-grandfathered individual and small-group coverage. If you buy a fully insured small-group plan, the carrier carries the compliance work and your state insurance department enforces it.
• Self-funded non-federal governmental plans (a county or school district, say) can opt out of the parity requirements by notice to participants. Private employers cannot.

If you are deciding between fully insured and self-funded coverage, note who holds the compliance file. With a fully insured plan the carrier designs the benefit and makes the filing. With a self-funded plan the employer is the plan sponsor and fiduciary, even when a third-party administrator runs the claims.

The three kinds of limits the law tests

1. Financial requirements. Deductibles, copays, coinsurance and out-of-pocket maximums. Under the 2013 regulations, a financial requirement on MH/SUD benefits cannot be more restrictive than the predominant level that applies to substantially all medical benefits in the classification. A $50 specialist copay and a $75 therapist copay in the same tier is the classic failure.
2. Quantitative treatment limits (QTLs). Numeric caps such as 20 outpatient visits a year or 30 inpatient days. Same predominance test.
3. Nonquantitative treatment limits (NQTLs). The rules that decide whether a claim gets paid: prior authorization, concurrent review, step therapy, medical-necessity criteria, provider network admission, reimbursement rates, geographic limits. This is where nearly all current enforcement happens, because a plan can look equal on paper and still be harder to use in practice. A plan must apply NQTLs to MH/SUD no more stringently than it does to medical benefits, as written and in operation.

The comparative analysis requirement

The Consolidated Appropriations Act, 2021 added a requirement that any plan imposing an NQTL on MH/SUD benefits must perform and document a comparative analysis showing the NQTL complies, and hand it to regulators on request. The analysis covers the factors and evidentiary standards used to design the limit, how it is applied, and the results. Fiduciaries of self-funded plans cannot simply assume the TPA did this. Ask for the analysis in writing, read what it concludes, and keep it with the plan documents.

What happened to the 2024 final rule

The Departments of Labor, Health and Human Services and the Treasury published a final rule in September 2024 that rewrote parts of the 2013 regulations and added detailed content requirements for the NQTL analysis. The status as of October 2026:

• Lawsuit. The ERISA Industry Committee (ERIC) sued in the U.S. District Court for the District of Columbia on January 17, 2025, challenging parts of the rule.
• Non-enforcement policy, May 15, 2025. The three Departments announced that they will not enforce the portions of the 2024 final rule that are new relative to the 2013 final rule. Relief covers failures before a final decision in the ERIC case plus 18 months, while they reconsider the rule, including possible rescission or modification. The statute, as amended in 2021, and the 2013 rule remain in force, and plans may keep relying on the 2013 rule and existing FAQs. HHS encouraged states that enforce parity against insurers to take a similar approach, so a carrier's state regulator may or may not follow it (DOL statement).
• 2026 action. On September 8, 2026, EBSA issued Field Assistance Bulletin 2026-03, "Guiding Principles for EBSA's Enforcement of MHPAEA's NQTL Requirements." It repeats that the new 2024 provisions are not being enforced and says EBSA will concentrate NQTL comparative-analysis enforcement on three things: exclusions that apply only to MH/SUD treatment; medical-necessity standards and review processes such as prior authorization (with proprietary clinical guidelines available on request); and network adequacy, including admission standards and provider reimbursement. The bulletin is internal guidance and does not announce a new rulemaking (FAB 2026-03).
• What is not settled. Trade press has reported that the Departments told the court they intend to propose a replacement rule, with a regulatory-agenda target around the end of 2026. We have not seen that in a primary source, so treat it as unconfirmed. As of this writing the 2024 rule has not been rescinded or replaced.

The practical meaning: the 2024 rule's new compliance machinery is on hold, but the law is not. The comparative-analysis duty comes from the 2021 statute and is not suspended.

A worked example (hypothetical)

Say a 140-employee manufacturer in Ohio runs a self-funded PPO through a TPA. During renewal the broker notices that outpatient therapy visits need prior authorization after the sixth visit, while outpatient physical therapy needs none until the thirtieth. Nothing in the plan document says mental health is limited, so it reads as neutral. But it is an NQTL applied more stringently to MH/SUD, and EBSA's stated focus on prior authorization and review processes is aimed at this pattern. The employer asks the TPA for the comparative analysis, finds it rests on a conclusory statement, and either obtains a real analysis or changes the authorization trigger. Fixing it before an audit letter arrives is cheaper than doing it after.

Checklist for employers

1. Confirm whether your plan is fully insured or self-funded, and who is the named fiduciary.
2. Ask the carrier or TPA in writing for the NQTL comparative analysis covering prior authorization, step therapy, medical-necessity criteria, network admission and reimbursement.
3. Compare copays, deductibles and visit limits for MH/SUD against their medical analogues in each classification.
4. Look for any blanket exclusion that applies only to MH/SUD care, such as residential treatment, when similar medical services are covered.
5. Check network quality: how many in-network behavioral providers are actually accepting patients, and how reimbursement compares with medical specialists.
6. Review any level-funded or stop-loss structure for carve-outs that exclude behavioral claims; a plan that pays them still has to comply.
7. Treat an EAP separately in your analysis: an EAP offering a few free sessions is generally an excepted benefit if it does not provide significant medical benefits, but a rich EAP can itself raise parity questions.
8. Calendar a review when the Departments act on the rule, and watch your state's insurance department if you are fully insured.

Where penalties come from

Plan participants can file complaints with EBSA, which may open an investigation and demand the comparative analysis within a set time. Failures can be corrected by amending the plan and reprocessing claims. Group health plans that fail to meet Code requirements may owe an excise tax under IRC 4980D of $100 per day for each affected individual, and ERISA plan participants can sue for benefits. State rules differ for insured plans; workers' comp and benefits requirements by state is a starting point, and an ERISA attorney is the right person for a specific plan. group health insurance cost and affordability calculator helps you price a plan redesign.

Key takeaways

• Parity applies when a plan covers mental health or substance use benefits; it does not force a plan to offer them.
• The 2024 final rule's new provisions are under a non-enforcement policy (May 15, 2025) while the Departments reconsider it, and the ERIC lawsuit is pending. The 2013 rule and the 2021 statute still apply.
• EBSA's September 8, 2026 bulletin names three enforcement priorities: MH/SUD-only exclusions, medical-necessity and prior-authorization processes, and network adequacy.
• Ask your carrier or TPA for the written NQTL comparative analysis, and keep it in the plan file.