Workforce Bulletin

“ERISA, you’ll need a lawyer for that.” Our practice group’s tagline is meant to be a shorthand for the alphabet soup of laws that apply to employee benefits, including the Employee Retirement Income Security Act (ERISA). Employee benefits compliance has many traps for the unwary and is ever evolving. Below, we have provided a primer on current issues of importance in the employee benefits area to help in-house attorneys identify potential risks, mitigate them, and know when to call an outside ERISA lawyer.

1. What Is Old Is New: Get Your Health Plan Governance in Order

Employers that sponsor self-funded health plans have a host of complicated obligations. There are greater potential legal, regulatory, and fiduciary risks than in years past with managing health plans because of increased congressional legislation, increased Department of Labor (DOL) focus on group health plan compliance, and increased group health plan litigation, often by the same plaintiffs’ firms that have been suing 401(k) plans in fee litigation the past 20 years or more.

On May 9, 2025, the Departments of Labor, Health and Human Services, and Treasury (collectively, “the Departments”) asked the D.C. federal court to suspend a lawsuit to challenge the legality of the 2024 Rule on the Mental Health Parity and Addiction Equity Act (MHPAEA) while the Departments consider whether to rescind or modify the 2024 Rule.^[1] On May 15, 2025, the Departments released a public statement that they will not enforce the 2024 Final Rule prior to a final decision in the litigation, plus an additional 18 months after the decision.

The public statement on May 15 provides further details regarding the scope of the non-enforcement policy, including clarification that the 2013 MHPAEA rules remain in effect, as does plans’ obligation to develop comparative analyses of non-quantitative treatment limits (“NQTLs”). However, the Departments have not yet provided any indication of the timeline for publishing a notice of proposed rulemaking to rescind or modify the 2024 Rule, and most likely it will take some time for the Departments to determine how exactly the new rule should be designed to better implement the statutory requirements.

As featured in #WorkforceWednesday®: This week, we’re examining the final mental health parity rules, a National Labor Relations Board (NLRB) memo on restrictive covenant limitations, and New York State’s recently enacted workplace violence prevention law.

The U.S. Departments of Labor (DOL), Health and Human Services, and the Treasury (collectively, the “Tri-Departments”) published a Notice of Proposed Rulemaking (NPRM) on August 3, 2023, to propose new regulations for the Mental Health Parity and Addiction Equity Act (MHPAEA). In particular, the proposed rules would implement amendments to MHPAEA that were passed under the Consolidated Appropriations Act of 2021 (CAA) to require documentation of comparative analyses for Non-Quantitative Treatment Limits (NQTLs). We anticipate that the Tri-Departments will publish new regulations for MHPAEA that will finalize most provisions of the NPRM in the coming days or weeks.

We anticipate that most provisions of the new regulations will finalize the proposed requirements without significant modifications. However, robust public comments were submitted with regard to several key provisions that may cause the Tri-Departments to modify or rescind the proposed rules.

Three of the most controversial provisions from the proposed rules to watch for in the final rules are:

• Quantitative testing for Non-Quantitative Treatment Limits

  • Current guidance: Health plans must ensure that financial requirements (such as copays and coinsurance) and quantitative treatment limits (such as day or visit limits) that apply to benefits for the treatment of mental health and substance use disorders (MH/SUDs) are no more stringent than the predominant level of the financial requirement or treatment limit that applies to substantially all medical and surgical benefits. This is a mathematical test that has been well-established for these numerical limits since the first MHPAEA regulations were published in 2011.
  • Potential Change: The 2023 NPRM also proposed to apply this mathematical test to NQTLs. If finalized, this new requirement may effectively prohibit most applications of prior authorization, step therapy, and other forms of utilization management for outpatient and prescription drug benefits for MH/SUD conditions.