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The short answer: federal parity enforcement went soft, state and private levers did not
Federal enforcement of the 2024 MHPAEA Final Rule is paused. The 2013 Final Rule, FAQs Part 45, and the statutory NQTL comparative analysis requirement from the Consolidated Appropriations Act, 2021 still bind every payer, and state Departments of Insurance, plan members, and private plaintiffs can still bring parity claims.
On May 15, 2025, the U.S. Departments of Labor, Health and Human Services, and Treasury issued a joint statement 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”. If you run a treatment center in Florida, Pennsylvania, Tennessee, Ohio, or Arizona, your federal pressure point against United Healthcare, Aetna, Cigna, and the Blues just got weaker. Your remaining pressure points sit inside state Departments of Insurance, ERISA document requests, and payer-specific denial data.
The Departments were explicit that the relief applies only to those portions of the 2024 Final Rule that are new in relation to the 2013 final rule, and MHPAEA’s statutory obligations as amended by the CAA, 2021 continue to have effect. Translation: DOL investigators are not auditing payers on the new comparative-analysis content rules, the fiduciary certification, or the meaningful benefits standard for at least the next several years. Payers get a lighter burden of proof. Operators get a heavier one.
What the enforcement pause actually covers, and what it does not
Read the statement carefully before you rewrite any payer playbook. The trigger was a lawsuit. On January 17, 2025, the ERISA Industry Committee filed a complaint in the U.S. District Court for the District of Columbia seeking to invalidate the Final Rule. The Departments then asked the court to hold the case in abeyance, and the court granted the abeyance on May 12, 2025, ordering the parties to file a joint status report on August 7, 2025 and every 90 days thereafter.
What stays live:
- The 2013 Final Rule and FAQs Part 45, including the NQTL framework.
- The CAA, 2021 requirement that plans prepare and provide an NQTL comparative analysis on request.
- Private ERISA litigation by plan members.
- State parity laws and state Department of Insurance enforcement against fully-insured issuers.
What sits on the shelf until 18 months after final ERIC resolution:
- The 2024 Rule’s expanded comparative-analysis content requirements.
- The fiduciary certification.
- The “meaningful benefits” standard.
- The “material differences in access” outcomes framework.
One nuance operators keep missing. Epstein Becker Green attorneys flagged that ERIC consented to the Departments filing the motion, subject to ERIC’s right to “resume litigation at any time if necessary”. So the pause is not a settled state. It is an open window while the Departments consider whether to rescind or modify the rule through notice-and-comment rulemaking.
The numbers behind the posture shift: denials, out-of-network use, and enforcement volume
Look at what the federal government and independent researchers had already documented before the pause. The market disparity federal investigators were chasing has not improved.
Milliman’s claims analysis for the Bowman Family Foundation covered 37 million employees and their dependents in all 50 states based on data from 2013 to 2017, and found that inpatient out-of-network use for behavioral health worsened from 2.8 times more likely than medical/surgical in 2013 to 5.2 times more likely in 2017, an 85% increase in disparities over five years. RTI Health Solutions ran the update. Their comparison between 2013 and 2021 reveals no improvement in disparities in out-of-network use.
On the denial side, KFF’s analysis of CMS transparency data found that insurers of qualified health plans sold on HealthCare.gov denied 19% of in-network claims in 2024 and 37% of out-of-network claims, with the in-network denial rate ranging from 3% to 36%. That works out to approximately 85 million denied in-network claims in a single year, with 26 of 157 reporting insurers denying 25% or more. Payers know that data will not get pulled through a federal parity complaint. So the rate sheet conversation has to move to a new venue.
Operator playbook: SCAs, denial appeals, and NQTL discovery under the new posture
My team rebuilt three workflows for AHS clients in Florida, Pennsylvania, and Tennessee in the 60 days after the May 15 notice. Here is what changed in practice.
Single case agreements. SCA negotiations used to lean on the implicit threat of a federal NQTL complaint. That threat is weaker now. Operators should replace it with documented network adequacy failure inside the state. We pull the payer’s own provider directory, run a ghost-network test on 50 randomly sampled BH provider listings, and attach the failure rate to the SCA request. A Tampa-area residential withdrawal management facility we work with moved an Aetna SCA from 62% of billed charges to 78% on that approach in July 2025, a swing worth roughly $1,840 per admission on a 7-day stay.
Denial appeals. Stop writing appeals that lean on the 2024 Final Rule’s NQTL content requirements. The 2013 rule and FAQs Part 45 remain binding. Build every appeal as a member-authorized ERISA document request first, parity claim second. That preserves the private right of action. The Departments’ May 15 statement itself confirms that plans and issuers may continue to refer to the 2013 final rule (as it appeared in the Federal Register on November 13, 2013), FAQs About Mental Health and Substance Use Disorder Parity Implementation and the Consolidated Appropriations Act, 2021 Part 45, so payers cannot credibly refuse to produce the underlying comparative analysis.
State DOI escalation. HHS encourages states that are the primary enforcers of MHPAEA with respect to issuers to adopt a similar approach to enforcement, but that request is not a legal preemption. The Florida Office of Insurance Regulation, the Pennsylvania Insurance Department, the Tennessee Department of Commerce and Insurance, the Ohio Department of Insurance, and the Arizona Department of Insurance and Financial Institutions all still investigate parity complaints against state-regulated commercial plans regardless of the federal posture. As Epstein Becker Green attorneys wrote, “the federal policy of non-enforcement does not apply to state regulators, who interpret and enforce both federal and state laws for mental health parity”.
One quotation worth keeping on the wall, from the Departments’ own May 15 statement: “MHPAEA provides critical protections for workers, individuals, and their families who need treatment for mental health conditions and substance use disorders.” Put it in the header of every appeal letter. The agency that paused enforcement still affirms the underlying obligation.
Where the AHS payer strategy team plugs in
My team at Atlantic Health Strategies is re-baselining payer files for facilities in Florida, Pennsylvania, Tennessee, Ohio, and Arizona right now. The work is concrete. We pull two years of denial rate data by payer and CPT, segment medical-necessity denials from administrative denials, and benchmark days in AR against the AHS book. Where clean claim rate sits below 92% on a given payer, we rebuild front-end edits before we touch the contract. On the Florida book specifically, average days in AR for facilities we onboarded in 2025 sat at 58 days at intake and dropped to 41 days after 90 days of revenue cycle rework.
Then we move to the rate sheet. With the 2024 Rule paused, payers will not voluntarily share outcomes data. So we shift the negotiation to in-network reimbursement gap data already published by Milliman and to state DOI complaint volume. A Pennsylvania IOP/PHP provider we work with used a Pennsylvania Insurance Department complaint trail plus the Milliman pay-gap findings to move a BCBS commercial allowable on H0015 by $34 per unit in August 2025.
One caution on timing. Epstein Becker Green attorneys tracking the pause noted that a recent Department of Labor Office of Inspector General report on MHPAEA enforcement noted that to date, it has often taken up to three years for DOL investigators to complete NQTL comparative analysis reviews, and that funding that supports over one-third of DOL’s frontline investigators will expire in September, 2025. Federal pressure is not gone. It is thinner and slower.
If you run a behavioral health facility and have not re-scored your parity strategy since May 15, the federal posture moved underneath you. The pressure points still exist. They live in different file cabinets now.
Frequently asked questions
Is the 2024 MHPAEA Final Rule still in effect after May 15, 2025?
Technically yes, practically no. The Departments of Labor, HHS, and Treasury stated on May 15, 2025 that they will not enforce the 2024 Final Rule based on failures to comply that occur before a final decision in the ERIC litigation, plus an additional 18 months. That relief applies only to those portions of the 2024 Rule that are new in relation to the 2013 rule. The 2013 Final Rule, FAQs Part 45, and the CAA, 2021 statutory NQTL comparative analysis requirement remain fully in force, and rescinding the 2024 Rule would still require notice-and-comment rulemaking under the Administrative Procedure Act.
Can behavioral health operators still file NQTL complaints with the DOL?
Yes, but frame them against the 2013 rule and CAA, 2021 statutory standards, not the 2024 content requirements. The statutory NQTL comparative analysis obligation from the CAA, 2021 remains in force, and the Departments have explicitly said plans and issuers may continue to refer to the 2013 Final Rule and FAQs Part 45. Complaints should focus on stringency and comparability under the longstanding NQTL framework rather than on the 2024 fiduciary certification or outcomes-data provisions.
How should treatment centers adjust single case agreement (SCA) strategy under reduced federal parity enforcement?
Anchor SCA requests in three things: documented network adequacy failure inside the state (a ghost-network test on the payer’s own directory), the Milliman out-of-network disparity data (behavioral inpatient out-of-network use rose from 2.8x to 5.2x medical/surgical between 2013 and 2017, an 85% increase in disparities), and the facility’s specific clean claim rate. Federal parity threats carry less weight now. State DOI complaint trails carry more. Price the SCA against the in-network reimbursement gap, not the payer’s stated allowable.
What role do state Departments of Insurance now play in parity enforcement?
A central one. HHS encouraged states that are the primary enforcers of MHPAEA with respect to issuers to adopt a similar approach to enforcement, but that request does not preempt state authority. The Florida Office of Insurance Regulation, the Pennsylvania Insurance Department, the Tennessee Department of Commerce and Insurance, the Ohio Department of Insurance, and the Arizona Department of Insurance and Financial Institutions can investigate parity complaints against state-regulated commercial plans regardless of the federal posture. Self-funded ERISA plans remain outside state DOI jurisdiction, which is why ERISA private litigation still matters.
References
- U.S. Department of Labor, HHS, and Treasury. Statement Regarding Enforcement of the Final Rule on Requirements Related to MHPAEA (May 15, 2025)
- Georgetown Health Care Litigation Tracker. ERISA Industry Committee v. Department of Health and Human Services et al.
- Groom Law Group. Departments Pause Enforcement of MHPAEA Final Rule and Reconsider MHPAEA Enforcement Program
- Epstein Becker Green (Workforce Bulletin). Mental Health Parity: What Non-Enforcement of the 2024 Parity Rule Means for Employer Plans
- The Kennedy Forum / Milliman. Addiction and Mental Health vs. Physical Health: Widening Disparities in Network Use and Provider Reimbursement (2019)
- RTI International. Pervasive Disparities in Access to In-Network Mental Health and SUD Treatment (2013–2021 update)
- KFF. Claims Denials and Appeals in ACA Marketplace Plans in 2024