The Mental Health Parity and Addiction Equity Act (MHPAEA) requires group health plans that offer mental health (MH) or substance use disorder (SUD) benefits to provide those benefits on terms that are no more restrictive than medical/surgical benefits. One of MHPAEA's most significant compliance requirements is the written non-quantitative treatment limitation (NQTL) comparative analysis. Added by the Consolidated Appropriations Act, 2021 (CAA 2021), the comparative analysis has become a primary tool used by regulators to assess compliance.

NQTL Comparative Analysis

An NQTL is a non-numerical limit or restriction that affects access to care. Unlike deductibles, copays, visit limits, or other quantitative treatment limitations, NQTLs involve the processes, standards, and administrative practices used to determine whether benefits will be covered. Common examples include prior authorization requirements, concurrent review programs, medical necessity criteria, provider credentialing standards, reimbursement methodologies, formulary design, network admission requirements, step therapy protocols, and restrictions related to provider specialty or facility type.

MHPAEA requires plans to ensure that the processes, strategies, evidentiary standards, and factors used to design and apply NQTLs to MH/SUD benefits are comparable to, and applied no more stringently than, those used for medical/surgical benefits. Importantly, parity must exist both “as written” in plan documents and “in operation” through actual administration.

The CAA 2021 added a new requirement that plans document this analysis in writing. The comparative analysis is not merely a narrative description of a plan’s NQTLs. Rather, it is a detailed compliance document intended to demonstrate that the plan has systematically evaluated each applicable NQTL and concluded that it satisfies MHPAEA's parity standards.

At a minimum, the written analysis must include:

  • The specific plan terms and NQTLs being evaluated and the benefits to which they apply;

  • The factors used to determine whether the NQTL applies;

  • The evidentiary standards relied upon in developing and applying those factors;

  • A comparative analysis showing that the processes, strategies, evidentiary standards, and other factors are applied comparably and no more stringently to MH/SUD benefits than medical/surgical benefits; and

  • The plan's findings and conclusions regarding compliance.

The analysis should be reviewed and updated as necessary to reflect changes in plan design, administration, or applicable guidance. It does not need to be filed with any agency; however, it must be produced promptly upon request. Federal agencies may require production within 10 days. ERISA plan participants may also request the document, and applicable disclosure deadlines generally require a response within 30 days.

Current Enforcement

Although portions of the 2024 MHPAEA Final Rule are currently subject to a temporary federal non-enforcement policy while litigation and regulatory reconsideration continue, regulators have repeatedly emphasized that the underlying statutory comparative analysis requirement remains fully in force. The Departments suspended enforcement of certain new obligations created by the 2024 Final Rule, including the fiduciary certification requirement, portions of the data collection requirements, and certain new substantive standards. However, the comparative analysis requirement established by the CAA 2021 remains unchanged.

Recent guidance from the Department of Labor's Employee Benefits Security Administration (EBSA), particularly Field Assistance Bulletin (FAB) 2026-03, provides significant insight into current enforcement priorities. In addition, EBSA’s recently released enforcement tool provides a practical checklist of plan provisions and operational indicators that may warrant further review. Employers may find the tool useful when assessing whether existing comparative analyses adequately address current enforcement priorities.
EBSA has indicated that it intends to focus its enforcement efforts on three categories that it believes present the greatest risk of harm to participants.

EBSA Enforcement Focus

Separate Treatment Limitations, Including Exclusions

Regulators are closely scrutinizing treatment exclusions and separate limitations that disproportionately affect MH/SUD treatment. Examples include exclusions affecting autism treatment, eating disorders, residential treatment, intensive outpatient programs, partial hospitalization, and certain SUD medications.

Medical Necessity Standards and Review Processes

Regulators are evaluating whether utilization management and review processes operate more restrictively for MH/SUD benefits than for comparable medical/surgical benefits. Given the agency's focus on operational data, plans should be prepared to support their analyses with information such as denial rates, authorization volumes, processing times, and reauthorization frequencies.

Network Adequacy, Network Admission and Provider Reimbursement

EBSA examines provider credentialing standards, network admission requirements, appointment wait times, network gap exceptions, out-of-network utilization patterns, and reimbursement methodologies. Significant disparities between MH/SUD and medical/surgical provider access may prompt further investigation into whether network-related NQTLs are operating comparably.


The guidance also highlights participant complaints as an important enforcement trigger. Complaints involving provider access, authorization delays, claim denials, or difficulties obtaining MH/SUD services may prompt agency investigations even outside of the DOL's primary enforcement categories. Additionally, regulators continue to emphasize that plan sponsors remain responsible for compliance even when administration is delegated to insurance carriers, TPAs, PBMs, managed behavioral health organizations, or other service providers.

Operational Compliance

MHPAEA requires NQTLs to satisfy applicable parity standards both as written and in operation. Recent enforcement guidance places significant emphasis on whether an NQTL operates in practice the same way it appears on paper. The most defensible analyses increasingly incorporate operational information that demonstrates how the plan's NQTLs function in practice.

For example, a prior authorization requirement that appears comparable in written plan materials may operate differently if MH/SUD claims are reviewed more frequently, authorized for shorter durations, require additional documentation, or experience longer processing times than comparable medical/surgical claims. Similarly, a care management program described as voluntary may create parity concerns if participation effectively becomes a prerequisite for receiving MH/SUD treatment.

Importantly, a disparity does not automatically establish a parity violation; rather, it may indicate that additional investigation is necessary to determine whether the processes, strategies, evidentiary standards, and factors underlying the NQTL are being applied comparably.

Vendor Oversight

Employers frequently rely on carriers, TPAs, PBMs, behavioral health organizations, and other service providers to administer NQTLs and maintain much of the information needed for the comparative analysis. However, outsourcing these functions does not eliminate the plan sponsor's compliance responsibilities. Information needed to support the comparative analysis often resides with multiple vendors, making it difficult to obtain documentation regarding utilization management, claims review, network standards, reimbursement methodologies, and operational data.

Employers should therefore establish a proactive vendor oversight process. When reviewing vendor support, employers may wish to consider:

  • Which NQTLs are administered by each vendor?
  • Is the comparative analysis plan-specific and does it account for customized plan provisions?
  • What documentation or operational data is available to support the analysis?
  • How does the vendor monitor NQTL administration and identify potential parity concerns?
  • What assistance will the vendor provide in responding to a regulatory request or investigation?

Potential Consequences of Non-Compliance

Failure to maintain a compliant comparative analysis can lead to significant regulatory and fiduciary risk. If a plan is unable to provide a complete and sufficient comparative analysis following an agency request, regulators may require corrective action and may prohibit the plan from continuing to apply NQTLs that cannot be adequately justified.

In addition, plans that fail to correct identified deficiencies may be included in agency reports to Congress and required to notify participants that the plan has been found non-compliant with MHPAEA. Such notices generally must summarize the violation, provide information regarding participant rights, and explain any corrective actions undertaken by the plan.

Regulatory consequences extend beyond documentation failures. If an investigation determines that an NQTL is being applied in a manner that violates MHPAEA, agencies may require claims reprocessing, participant reimbursement, benefit corrections, and other remedial actions.

Financial penalties may also apply. Non-compliant plans may face excise tax exposure under Code §4980D. For ERISA-covered plans, failure to timely provide requested comparative analyses or related disclosures may result in additional ERISA disclosure penalties, including penalties that may exceed $100 per day while the violation continues.

Preparing for an NQTL Comparative Analysis Request

The new guidance provides a useful benchmark for evaluating whether an existing comparative analysis is truly audit-ready and what plans should expect during an investigation. Specifically, the guidance directs plans as illustrated below:

Have the following documents available:

  • Coverage documents;
  • Comparative analyses;
  • Supporting documentation; and
  • Documentation of monitoring activities.    

Be prepared to:

  • Explain apparent disparities;
  • Respond with factual and data-driven support rather than general statements;
  • Explain how NQTLs operate in practice;
  • Identify and address compliance concerns;
  • Consider whether participants were harmed by an identified issue;
  • Determine whether retrospective correction may be necessary; and
  • Provide evidence of voluntary corrective action.

Given the current enforcement environment, employers may wish to:

  • Review existing comparative analyses, particularly those involving treatment exclusions, utilization management practices, and network-related NQTLs that are receiving heightened regulatory attention;

  • Confirm that vendor analyses adequately address any employer-specific plan provisions, exclusions, carve-outs, or customized benefit arrangements;

  • Verify that NQTLs are being administered in practice consistent with the processes described in plan documentation and comparative analyses;

  • Request targeted, plan-specific operational information from carriers, TPAs, PBMs, and behavioral health vendors when necessary to support compliance conclusions;

  • Investigate significant disparities to determine whether they reflect legitimate plan operations or potential parity concerns; and

  • Maintain documentation of comparative analyses, operational reviews, vendor communications, monitoring activities, and any corrective actions undertaken.

  • For many employers, particularly sponsors of self-funded plans, obtaining sufficient information from service providers remains one of the most significant challenges in maintaining a robust comparative analysis. As a result, ongoing vendor oversight and periodic review of plan operations are becoming increasingly important components of an effective MHPAEA compliance strategy.

Summary

The NQTL comparative analysis remains a central component of MHPAEA enforcement. Although portions of the 2024 Final Rule remain subject to temporary non-enforcement relief, the statutory comparative analysis requirement remains fully effective. Employers should ensure their analyses are current, supported by appropriate documentation and operational information, and reflect how NQTLs are applied in practice. Effective compliance increasingly depends on coordination with carriers, TPAs, PBMs, and behavioral health vendors, along with ongoing monitoring and oversight.