What to do
Work out which kind of non-ERISA plan you are on
State, county, city, school district, or public university: a non-Federal governmental plan. A church or church-affiliated employer: a church plan, which is outside ERISA unless it has elected in. A federal employee: FEHB, governed by its own law and by OPM.
Stop looking for the Department of Labor
DOL enforces ERISA. It has no authority over a governmental plan, a church plan, or FEHB. Sending your complaint there costs you the time it takes to be told so.
Government plan: ask whether the plan has filed an opt-out election
A self-funded non-Federal governmental plan may exempt itself from certain federal requirements. The election is filed with CMS and must name each requirement. Ask the plan administrator for a copy.
Ask specifically about mental-health parity
Parity was one of the requirements a government plan could opt out of. Since 29 December 2022 no sponsor may newly elect out, but an election made before then can still be running.
Check whether the plan buys stop-loss regulated as insurance
If the stop-loss or excess-risk coverage is regulated as group health insurance under state law, the plan counts as fully insured and cannot use the opt-out at all. That is worth asking about.
Ask for the enrollee notice
An opt-out election has to be accompanied by a notice to enrollees. If you were never given one, that is a question worth putting in writing.
Route the complaint to the right place
Government plan: CMS, and your state if it also regulates public-employee benefits. Church plan: usually the plan's own process, then state law where it reaches. FEHB: the carrier, then the Office of Personnel Management.
Why this page exists
Almost everything written about self-funded plans assumes ERISA, because most self-funded plans are ERISA plans. If you work for a city, a school district, a public university, a hospital system run by a church, or the federal government, that advice sends you to a regulator with no authority over your plan — the same wrong-regulator failure this whole site is built around, one level deeper.
What a government plan can and cannot opt out of
The requirements a self-funded non-Federal governmental plan may currently elect out of are: benefits for mothers and newborns, mental-health and substance-use parity, reconstructive surgery following mastectomy, and coverage of dependent students on a medically necessary leave of absence.
Parity is the one that matters most here, because parity arguments are one of the routes into a gender-affirming care denial. A new opt-out from parity has not been available since December 2022, but an existing one can persist — so the question is not whether they could opt out today, it is whether they already did.
- The election is filed with CMS, not with your employer's HR.
- It must specify each requirement the plan is exempting itself from.
- It must be accompanied by a notice to enrollees.
- It cannot be used retroactively against a claim incurred before the election took effect.
- If the plan's stop-loss is regulated as insurance under state law, the plan is treated as fully insured and cannot opt out.
Church plans and FEHB, briefly
A church plan is exempt from ERISA unless it has affirmatively elected to be covered. That removes the ERISA appeal machinery and the DOL, and leaves you with the plan's own process plus whatever state law reaches. This is an area where getting advice early is worth it.
Federal employee plans run under their own statute and are administered by carriers under contract with the Office of Personnel Management. Appeals go to the carrier and then to OPM, and A4TE publishes FEHB-specific guidance.
Common questions
- I work for a city. Is my plan ERISA?
- No. Governmental plans are excluded from ERISA. If your plan is also self-funded, you are on a self-funded non-Federal governmental plan, which is what most of this page is about.
- How do I find out whether my plan opted out of parity?
- Ask the plan administrator in writing for a copy of the opt-out election filed with CMS, and for the enrollee notice that must accompany it. If neither exists, the plan has not validly opted out.
- Does my state's coverage mandate apply?
- State insurance mandates reach insurers. A self-funded governmental plan is not insured, so they generally do not — but some states regulate public-employee benefits separately, which is worth asking about.
Better covered elsewhere
- A4TE Trans Health Project — FEHB guidance
Federal employees specifically.
Where to go next
Sources for the legal points on this page
- Self-funded state and local government plans may opt out of some federal requirements
Federal — self-funded non-Federal governmental plans (state, county, city, school district) · effective in force; parity opt-out sunset 2022-12-29
45 CFR 146.180 — (a)(1) requirements subject to exemption, (a)(2) general rule, (a)(3) parity opt-out sunset, (a)(7)(ii) stop-loss regulated as insurance means no opt-out, (b) election must be filed with CMS with an enrollee notice
Status: settled · source-checked 2026-08-06 · primary source verified: 2026-08-06
- Mental-health parity: the 2024 rule is paused, the older duties are not
Federal — group health plans and issuers · effective non-enforcement announced 2025-05-15
29 CFR 2590.712 and 2590.712-1 — current text still carries the 2024 rule (definitions keyed to 22 November 2024), so the rule was not rescinded. The May 2025 non-enforcement policy is sub-regulatory and was NOT located in the Federal Register, so it remains unverified
Status: contested · source-checked 2026-08-06 · primary source verified: 2026-08-06 (partial — regulation text verified, non-enforcement policy not)