Labor Department Narrows Parity Enforcement to Three Areas. ABA Sits in All Three.

EBSA's September 8 bulletin focuses federal mental health parity enforcement on blanket exclusions, prior authorization and concurrent review, and network adequacy including reimbursement. Its last report credits ABA exclusion removals covering 319,000 people.

The Labor Department's Employee Benefits Security Administration issued Field Assistance Bulletin 2026-03 on September 8. It narrows how EBSA enforces the Mental Health Parity and Addiction Equity Act for employer plans to “three categories in which there is the highest potential for significant harm”:

  • Separate treatment limitations, including exclusions. “EBSA will focus its resources on cases involving blanket treatment exclusions applicable only to MH/SUD benefits.”
  • Medical necessity standards and review. The focus is “prior authorization, concurrent review, and retrospective review.”
  • Network adequacy, “with a focus on network admission standards and provider reimbursement methodologies.”

The turn: narrower, but aimed where ABA disputes are

This is a retreat from the 2024 rule. EBSA won't enforce its new provisions for violations occurring “prior to a final decision in the [ERIC] litigation, plus an additional 18 months.” But the three categories it kept map onto the fights ABA providers have with commercial plans: carve-outs, hours cut at reauthorization, and rates.

The bulletin cites EBSA's 2025 Report to Congress as the model, and that report's autism results are specific. A national service provider removed an ABA exclusion from its self-funded template documents, affecting 97 client plans and more than 319,000 participants. It re-adjudicated 1,407 denied ABA claims worth over $1,050,000. The report counts 800,000 participants who “now face fewer barriers to getting treatment for autism spectrum disorder.”

On criteria: plans may use proprietary clinical guidelines, but “must make these guidelines available upon request … to participants and beneficiaries.”

The limits

This covers ERISA plans and issuers under EBSA's jurisdiction, mainly employer coverage including self-funded plans. It doesn't reach Medicaid. The bulletin calls itself “an internal Department policy” that “may not be relied upon to create any rights.” The statute still applies, and EBSA says it may pursue other issues “particularly when responding to participant complaints.”

What you must know or do

  • Billing: flag every commercial client whose employer plan excludes ABA outright. That's EBSA's first priority, and the family, not you, can file the complaint.
  • When an employer plan cuts hours at concurrent review, have the family request the medical necessity criteria in writing. The plan must provide them.
  • Owners negotiating rates with a commercial network: reimbursement methodology is now an enforcement category. Keep your rate correspondence on file.