By Kellie Mejdrich
Law360 (April 28, 2026, 6:19 PM EDT) — The Trump administration’s plans to promulgate new regulations governing mental health parity requirements for employee health plans are currently causing headaches for benefits attorneys, but a rule that includes specific examples could ultimately ease compliance burdens for retirement plan sponsors.
The federal government stopped enforcing the Biden’s administration’s parity rule in May 2025, and the U.S. departments of Health and Human Services, Treasury, and Labor said in a March 30 filing that a new proposed rule would be coming by the end of 2026. The new rule will come after agencies said in their enforcement statement last May that they would reevaluate their broader parity enforcement strategies on health plans regulated by the Employee Retirement Income Security Act.
Federal parity laws have been in place for decades, but Congress initially focused on restricting numerical limits on behavioral health before addressing more complicated nonquantitative restrictions that were contributing to uneven coverage across mental and physical care. Rules implementing those nonquantitative limits are now subject to disputed federal regulations. Nonquantitative treatment limitations refer to coverage restrictions that can’t be easily counted, such as prior authorization or concurrent review in which an insurer evaluates future coverage for inpatient individuals.
The Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 specifically amended ERISA to restrict employer health plans’ nonquantitative limitations on mental health and substance use disorder treatments to ensure they were no more stringent than what was applied in other contexts, such as medical or surgical care.
In December 2020, after watching lax compliance for more than a decade, Congress also amended MHPAEA to require more detailed analysis and disclosure from plans on their handling of mental health and substance use coverage. It also beefed up enforcement authority at the DOL’s Employee Benefits Security Administration.
Regardless of whether regulations are on the books, investigations into plans’ compliance with parity laws remain open, and MHPAEA remains in force, including new comparative analysis requirements enacted in 2020. The prospect of DOL enforcement and private litigation, combined with the shifting regulatory landscape, has created a state of legal limbo for compliance professionals.
“Everyone’s trying to figure out—given the change in administration, given that this is still a law and there is still a need to enforce the law—what does enforcement look like? And what does the investigation look like going forward?” said Sarah Bassler Millar, a partner at Faegre Drinker Biddle & Reath LLP who represents plan sponsors and service providers with a focus on employee benefits and executive compensation. “And so, it creates a great deal of uncertainty as to how to demonstrate compliance when priorities have shifted, apparently.”
DOL Enforcement Shift
Despite a business-friendly administration in office and the regulatory framework governing mental health parity being in flux, experts said they don’t expect enforcement by federal regulators to grind to a halt.
Daniel Aronowitz, who leads EBSA, recently reiterated his commitment to enforcing parity laws and pointed to a new enforcement priorities list at the subagency with parity near the top. Employer-side attorneys said those remarks further signal that there will still be parity enforcement, but it will be different.
Anne Tyler Hall, founder and managing partner at Hall Benefits Law, said she doesn’t think the enforcers will “back off MHPAEA equity.”
“But I do think they’re going to likely roll back some of these highly prescriptive requirements, technical requirements, that we saw in the ’24 rule,” Hall said.
While enforcement will remain a factor that plan sponsors have to account for, it will likely look different under the Trump administration than it has in the past, she said, and priorities have already begun shifting.
“At a high level, yes, I think there’s been a pivot of EBSA focus,” she said. “I do think it’s going to be on group health plans, probably larger group health plans [and] more egregious, significant harm to a significant number of participants.”
Patient-Side Concerns
The regulatory shift is a concern for attorneys representing participants in ERISA plans seeking additional mental health or substance use disorder benefits, including Brian King, a Utah attorney who focuses on ERISA health claims litigation, including some cases alleging that insurers and employer health plans violated federal parity laws.
“Devil’s in the details in terms of how badly they negatively impact my ability to use MHPAEA in the future, depending on what those new rules are,” King said.
After the 2024 rule was finalized, King said he “was more optimistic that it would be a sharper tool for me to use,” referring to MHPAEA, but that has since changed under the Trump administration.
“From my perspective, the DOL under this administration is not really doing much to enforce MHPAEA in a way that I would like, but that’s a heck of a lot better than putting in place new rules,” King said.
He added that the rules on the books are most powerful in the context of private attorneys using them to advocate for clients.
“That’s where I use the rules myself and have the rules against me by other attorneys,” King said. He added that, in cases involving single ERISA plaintiffs, he sees insurers spending more money to defend against claims than they’re actually worth.
Management-Side Optimism
Numerous employer-side attorneys also were hopeful that any new parity rule will provide a model comparative analysis of behavioral healthcare limitations, given that what’s necessary for compliance remains unclear even after significant enforcement activity, previous versions of regulation, and even litigation.
Diane Dygert, chair of Seyfarth Shaw LLP’s employee benefits practice, said she’s looking out for EBSA to provide a model of what they want to see in a comparative analysis of a plan’s coverage for parity.
“That would be extremely helpful,” Dygart said, adding, “Because it’s just overwhelming right now and very expensive.”
Beyond a sample analysis, another issue Dygert said she’d like guidance with in the new rule has to do with how parity laws apply in decisions involving gender-affirming care.
“You know, where does that fall? We’re kind of left uncertain about that for plans that want to cover
gender-affirming care for adults, at least,” Dygert said. “Some of it might be physical and some might be mental health … that’s a very difficult thing to peel apart and figure out where that fits.”
–Editing by Amy Rowe and Emma Brauer.
