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Answer First: What Parity Enforcement Actually Looks Like in 2026
Short answer: The September 9, 2024 MHPAEA Final Rule is on ice, but the underlying statute is not. Behavioral health operators should walk into 2026 renewals with denial data, written comparative-analysis requests, and rate targets built on the CAA-2021 NQTL obligations that remain fully enforceable.
On May 15, 2025, the Departments of Labor, HHS, and Treasury issued a joint statement announcing that they “will not enforce the 2024 Final Rule or otherwise pursue enforcement actions, based on a failure to comply that occurs prior to a final decision in the litigation, plus an additional 18 months.” The relief applies only to portions of the 2024 Final Rule that are new in relation to the 2013 final rule, and the Departments were explicit that MHPAEA’s statutory obligations, as amended by the CAA, 2021, continue to have effect.
I was on a renewal call with a regional Blue plan in Florida six weeks after the Final Rule dropped. I asked for a 14% bump on our Level 2.5 partial hospitalization rate (PHP is an outpatient level of care under the ASAM Criteria, 4th Edition). The contracting rep did not push back on the number. She asked, in writing, whether we would accept a multi-year rate freeze in exchange for the plan dropping concurrent review at days 7 and 14. That is payer pricing NQTL exposure, not generosity.
Read the signal correctly. UnitedHealthcare, Aetna, Cigna, and the Blues had already spent months of legal and actuarial time on comparative analyses. When a payer suddenly wants to trade UM concessions for rate stagnation, the operator across the table should recognize that the plan is still pricing statutory risk. Price accordingly.
What Operators Should Be Demanding at Renewal
Start with the fee schedule. If your commercial PHP (ASAM Criteria, 4th Edition Level 2.5) rate is sitting below $675 per diem in markets like South Florida, Dallas, or Phoenix, and your IOP (Level 2.1) is below $310 per diem, you are below where parity math should land you. I have closed three renewals in the last 90 days at $742, $755, and $790 for Level 2.5 with national carriers. None of those took more than two counter-offers.
Bring your own data. Days in AR by payer, denial rate by CPT, and your average authorized length of stay versus the plan’s book of business. If your clean claim rate is above 96% and the plan is still denying 18% of your H0015 claims, that is an NQTL story you should be telling out loud.
Second, demand the comparative analysis. The CAA-2021 requirement for plans to perform, document, and produce NQTL comparative analyses on request survived the 2025 enforcement pause. Per the Departments’ own 2024 MHPAEA Report to Congress, EBSA has obtained corrections that “directly benefited over 7.6 million participants in more than 72,000 plans,” in the words of then-Acting Secretary Julie Su. Most operators never ask for their plan’s analysis. Ask. Put it in writing. Cite 45 CFR 146.136 in the email. When the plan stalls, that delay itself becomes documentation if you later file with the DOL Employee Benefits Security Administration or your state Department of Insurance.
The NQTLs That Are Quietly Eating Your Margin
Rate is the conversation operators want to have. NQTLs are the conversation that actually moves the P&L. I pulled denial data for a 42-bed Florida client last quarter. Their commercial denial rate on Level 3.7 residential withdrawal management (residential detoxification under ASAM Criteria, 4th Edition) was running at 22%. The medical-surgical equivalent denial rate at the same plan, for inpatient detox of comparable acuity on the med side, was 6%. That 16-point gap is not a coincidence. That is a non-quantitative treatment limitation operating in practice, regardless of what the plan documents say in the SPD.
The asks that matter at the table:
- Parity of prior-authorization turnaround (if the medical side gets 24-hour decisions, behavioral health does too)
- Parity of peer-to-peer scheduling windows
- Parity of medical-necessity criteria sourcing
- Parity of network-adequacy standards
If the plan uses InterQual or MCG for med-surg and proprietary internal criteria for behavioral health, that asymmetry is a documented compliance problem for them, not just an irritation for you.
Network composition sits at the top of the list. Per the 2024 Report to Congress, EBSA is devoting nearly 25% of its enforcement program to MHPAEA NQTL work, and the Tri-Agencies reinforced that a top priority in enforcement will be to address disparities between the availability of MH/SUD and medical/surgical providers in plan networks. EBSA has stated it treats it as a red flag when participants go out of network significantly more often for MH/SUD care than for medical/surgical care.
Single Case Agreements and Out-of-Network Posture
The parity argument strengthens the out-of-network conversation. When a plan’s in-network behavioral health directory is full of ghost providers, the operator negotiating a single case agreement has a network-adequacy argument stacked on top of a parity argument.
Senate Finance Committee majority staff ran a secret-shopper study on mental health provider directories in 12 Medicare Advantage plans across six states. Staff reviewed directories from 12 different plans in 6 states, calling 10 systematically selected providers from each plan, for a total of 120 calls. Of those 120 provider listings contacted by phone, 33% were inaccurate, non-working numbers, or unreturned calls, and staff could only make appointments 18% of the time. As Chair Ron Wyden put it in remarks releasing the study, “when insurance companies host ghost networks, they are selling health coverage under false pretenses.”
I priced an SCA last month at 165% of the plan’s in-network allowable for Level 2.5, and the plan paid it without a counter. Two years ago the same plan would have countered at 110% and held. That movement is not sentiment. Plan contracting has looked at its own directory data and does not want that fight.
Operators should also be reviewing OON claim patterns for prompt-pay violations. Florida statute 627.6131 requires the insurer to pay or notify the provider that a claim is denied or contested within statutory windows. Texas Insurance Code Chapter 1301 sets 30 days for electronic clean claims. I have seen plans averaging 47 to 62 days on OON behavioral health claims in both Florida and Texas. That is statutory exposure, and it is a card you hold when the plan wants you in-network.
What AHS Is Telling Operators Right Now
Most of the parity conversation at conferences this year is theoretical, especially after the May 2025 enforcement pause. Our message to operators is practical: do not wait for federal enforcement to do your contracting work for you. The Departments themselves noted that HHS encourages states that are the primary enforcers of MHPAEA with respect to issuers to adopt a similar approach to enforcement. State DOIs and state attorneys general are the more likely near-term enforcement actor for fully insured plans in Florida, Texas, Arizona, and Georgia.
Do this work before the renewal letter hits:
- Pull your denial data by payer and by CPT
- Calculate your true cost per episode at Level 2.1, Level 2.5, and Level 3.7
- Build the spreadsheet that shows the plan’s behavioral health denial rate next to its med-surg denial rate
- Request the plan’s NQTL comparative analysis in writing, citing 45 CFR 146.136
- Track prompt-pay violations under your state statute and price them into your OON strategy
For context on how much money is at stake in the broader ERISA enforcement machinery: per the EBSA FY 2024 fact sheet, the U.S. Department of Labor’s Employee Benefits Security Administration recovered $1.384 billion in direct payment to plans, participants, and beneficiaries in FY 2024, and the agency’s non-monetary results explicitly include the elimination of illegal plan provisions, improved fiduciary governance, and increased access to mental health benefits. The statutory basis for that work is still in force.
Operators who walk into 2026 renewals with documentation will get rate movement on legacy contracts. Operators who walk in with a generic ask and no data will get a 2% cost-of-living bump and another year of 22% denial rates on residential withdrawal management. Pick which operator you want to be.
Frequently asked questions
Is the September 2024 MHPAEA Final Rule still enforceable in 2026?
No, not directly. On May 15, 2025, the Departments of Labor, HHS, and Treasury announced they will not enforce the 2024 Final Rule for compliance failures occurring prior to a final decision in the ERIC litigation, plus an additional 18 months. The enforcement relief applies only to portions of the 2024 rule that are new in relation to the 2013 rule. MHPAEA’s statutory obligations, including the CAA-2021 requirement to perform and produce NQTL comparative analyses on request, remain fully in effect.
Can a behavioral health operator still request a plan’s NQTL comparative analysis?
Yes. The comparative analysis obligation is statutory under the CAA-2021 and survived the 2025 enforcement pause. EBSA’s cumulative work under that requirement, per the 2024 Report to Congress, has obtained corrections that removed impermissible MH/SUD treatment barriers for more than 7.6 million participants in over 72,000 plans. Operators should request the analysis in writing, cite 45 CFR 146.136, and preserve any delay as documentation for a possible complaint to DOL EBSA or the state Department of Insurance.
How bad are behavioral health ghost networks, and do they support a single case agreement argument?
Bad enough that a Senate Finance Committee secret shopper study of 120 mental health provider listings across 12 Medicare Advantage plans in six states found 33% of the listings were non-working numbers, incorrect numbers, or unreturned calls, and staff could only make appointments 18% of the time. Chair Ron Wyden characterized the practice as selling health coverage under false pretenses. Operators negotiating single case agreements can stack a network-adequacy argument on top of a parity argument, which is why SCA pricing has moved in 2025.
How much has federal ERISA enforcement actually recovered, and how much of EBSA’s work is aimed at parity?
EBSA recovered $1.384 billion in direct payment to plans, participants, and beneficiaries in FY 2024, and the agency’s non-monetary results explicitly include increased access to mental health benefits. The 2024 Report to Congress confirms EBSA is devoting nearly 25% of its enforcement program to MHPAEA NQTL work. That percentage establishes the scale of the enforcement apparatus behind the statute that survived the 2025 rule pause.
References
- U.S. Departments of Labor, HHS, and Treasury. Statement Regarding Enforcement of the MHPAEA Final Rule (May 15, 2025)
- 2024 MHPAEA Report to Congress (DOL, HHS, Treasury, January 2025)
- DOL News Release. Tri-Agencies Issue 2024 MHPAEA Report to Congress (January 17, 2025)
- EBSA FY 2024 Monetary Results Fact Sheet. U.S. Department of Labor
- Senate Finance Committee. Wyden Releases Ghost Networks Secret Shopper Study (May 3, 2023)
- Senate Finance Committee Majority Staff. Ghost Network Secret Shopper Study Report (PDF)
- Crowell & Moring. Tri-Agencies Release Third Mental Health Parity Report to Congress
- NFP. Departments Release MHPAEA 2024 Report to Congress