Date: 2026-08-11. Adjudicates H6 and kill condition KC3 (ERISA visibility). Verifies protocol anchor 10 (2024 MHPAEA final rules). Litigation: Wit holdings only.
PRISMA-lite search log
| Field | Logged |
|---|---|
| Strings | MHPAEA 2024 final rule Federal Register NQTL comparative analysis; DOL EBSA Report to Congress 2023 2024 MHPAEA; GAO-20-150 parity oversight ERISA; GAO-22-104597 mental health access; GAO-23-105642 network adequacy; DOL OIG EBSA mental health parity 09-25-001; Wit v United Behavioral Health Ninth Circuit holdings; state insurance exam mental health network adequacy secret shopper |
| Date range | Prefer post-CAA 2021 (comparative-analysis mandate); 2024 final rule + 2025 enforcement statement; Wit 9th Cir 2023 |
| Inclusion | DOL/HHS/Treasury rulemakings and Reports to Congress; GAO/OIG; published court holdings; state market-conduct / secret-shopper exams with methods. Exclude press characterizations of Wit beyond holdings. |
| Searched | 2026-08-11 |
1. Anchor 10 — 2024 final rules (verified) + enforcement perishability
Federal Register / Departments fact sheet (final rules published Sep 2024; generally effective for plan years beginning on/after Jan 1, 2025; data-evaluation / meaningful-benefits pieces on/after Jan 1, 2026):
Material changes relative to the 2013 rule + CAA 2021 statute:
- Codifies NQTL comparative-analysis content (six minimum elements) and Department request/review timelines
- Requires plans/issuers to collect and evaluate relevant data on NQTL impact (including network composition) and take reasonable action when material MH/SUD vs M/S access differences appear
- Tightens design/application comparability; prohibits discriminatory factors/evidentiary standards that systematically disfavor MH/SUD
- Adds meaningful benefits standard (core treatment in classifications where M/S core treatments are covered)
- Sunsets self-funded non-federal governmental plan MHPAEA opt-outs (CAA 2023)
Verified for anchor table: Yes — the 2024 final rules meaningfully changed comparative-analysis obligations and added operational data/meaningful-benefits duties beyond the 2013 rule text.
Perishable enforcement note (mandatory disclosure): May 2025 Departments statement — nonenforcement of new 2024-rule provisions while revisiting the rule amid ERIC litigation; CAA 2021 statutory comparative-analysis duties and the 2013 rule remain in effect. Scorecard cells citing “2024 rule teeth” must carry this date stamp.
2. Post-2021 enforcement and exams — parity gaps persist
| Source | What it shows |
|---|---|
| DOL/HHS/Treasury MHPAEA Reports to Congress (2022, Jul 2023, 2024) | On initial submission, comparative analyses reviewed were insufficient (2022/2023 reports: effectively all reviewed analyses deficient at first look). Named final noncompliance determinations began in the Jul 2023 report. Corrections removed exclusions / fixed network-monitoring practices affecting millions of participants (2024 report: EBSA corrections since Feb 2021 benefited >7.6M participants in >72k plans cumulatively in cited tallies). |
| FY2023 EBSA/CMS enforcement fact sheet (with 2024 RTC) | Investigations continue to find network-composition and exclusion NQTL problems; examples include self-funded plans with MH/SUD out-of-network use far above M/S |
| State market-conduct / secret-shopper exams (multi-jurisdiction grey literature; RWJF/ASAM state-enforcement review) | Fully insured markets: persistent documentation failures and access red flags under state exams — different root from DOL plan reviews |
| GAO-22-104597 | Documents access challenges for covered consumers; maps split enforcement (states vs DOL vs HHS) without claiming compliance |
Independence: federal comparative-analysis enforcement (DOL/EBSA primary for private employment plans) and state insurance exams (fully insured issuers) are separate roots. Both find material post-2021 parity/access gaps → H6 support path.
3. KC3 — ERISA / self-funded visibility
KC3 fires if plans covering most commercially insured lives sit outside the exams that generate compliance evidence.
| Fact | Source |
|---|---|
| State insurance regulators generally cannot examine self-funded ERISA plans | GAO-20-150; GAO-22-104597 |
| DOL/EBSA has primary MHPAEA jurisdiction over ~2.6M private employment-based plans covering ~136M participants/beneficiaries | 2024 MHPAEA Report to Congress |
| Self-funded coverage is the majority form for covered workers in employer plans (KFF Employer Health Benefits standing fact; exact % perishable by survey year) | KFF EHBS series |
| EBSA investigator capacity is thin relative to plan count; OIG flags loss of supplemental NQTL funding (<1 investigator per ~16,472 plans after supplemental drawdown in cited OIG narrative) | DOL OIG 09-25-001-12-001 (2025) |
| No ERISA statutory network adequacy numeric standards; MHPAEA NQTL comparability is the federal hook | GAO-23-105642 |
Adjudication: KC3 fires. State exams — a major generator of “parity compliance evidence” in public debate — do not see the self-funded ERISA majority. Federal EBSA can see those plans and has used CAA requests to force corrections, but coverage is investigative and resource-constrained, not a census exam. O4 for commercial populations is a band-only / unknown axis for realized access under self-funded plans, with federal enforcement spot-checks as the partial exception.
4. Wit v. United Behavioral Health — holdings only
Ninth Circuit (Wit v. United Behavioral Health, Nos. 20-17363 & companion; opinions Jan 26, 2023 and Aug 22, 2023):
| Holding | Use in filing |
|---|---|
| Plaintiffs had Article III standing for fiduciary-duty and denial-of-benefits theories as framed | Procedural |
| Affirmed certification of fiduciary-duty classes; reversed certification of denial-of-benefits classes (reprocessing theory violated Rules Enabling Act / Rule 23 limits) | Class procedure — not a clinical finding |
| District court erred insofar as it required UBH Guidelines to be coextensive with generally accepted standards of care (GASC) when plan language did not so require; abuse-of-discretion review of administrator interpretation applies even given conflict findings | Limits “GASC = plan terms” press claims |
| UBH did not appeal the portion finding Guidelines inconsistent with state-mandated criteria; that portion remained intact | State-mandate class/path survived as unappealed |
Do not cite district-court narrative findings that the Ninth Circuit reversed, or media summaries that treat Wit as a final national ban on restrictive LOCUS-style guidelines.
5. H6 adjudication
H6 — Parity on paper ≠ access in practice. Post-MHPAEA, network and medical-necessity practices still produce systematically worse behavioral access than medical/surgical for comparable plans.
| Criterion | Result |
|---|---|
| ≥2 enforcement actions, exams, or secret-shopper studies in different jurisdictions find material parity gaps after 2021 | Met. (1) DOL/HHS CAA comparative-analysis program (2022–2024 RTCs) — initial analyses insufficient; network/exclusion corrections; (2) state insurance exams / multi-state enforcement reviews finding fully insured gaps |
| Refute path (recent multi-state exams find substantial compliance; waits explained by workforce alone) | Does not fire — Departments report persistent shortfalls; workforce may compound but does not erase NQTL findings |
| Indeterminate if ERISA plans invisible to available exams | Visibility gap confirmed (KC3) — report it; do not treat H6 as indeterminate solely because of KC3, because federal CAA reviews do reach ERISA plans and still find gaps |
Adjudication: Supported. KC3 fires in parallel — commercial O4 is band-limited for the self-funded majority.
Implications for scorecard
- Architecture #6 (parity enforcement with ERISA teeth) is the direct response to KC3; score federal exam capacity and 2024-rule fate as perishable.
- Do-nothing / parity-on-paper (architecture #10) fails H6’s evidence bar.
- Network secret-shopper standards belong with O1/O4 measurement (KC1 kinship): compliance theater without realized-access series.
Confidence: Strong (H6 / KC3 structure) / Moderate (2024 rule operational effect)
Strong on split enforcement geography and post-2021 insufficiency findings. Moderate on how much the 2024 rule will change outcomes given 2025 nonenforcement. Wit confined to holdings.