On May 13, 2026, the Departments of Labor (DOL), Health and Human Services (HHS), and the Treasury (collectively, the Departments) issued a Proposed Rule (the Proposed Rule) that would create a new category of limited excepted benefits for fertility-related coverage. If finalized, the Proposed Rule would allow employers to offer certain fertility and infertility benefits outside their traditional group health plans.
The Proposal builds on Executive Order 14216 and the Departments’ 2025 Frequently Asked Questions (Part 72), both of which explored ways to expand access to fertility care through existing excepted benefit structures. The Proposed Rule goes a step further by creating a specific regulatory framework for stand-alone fertility benefits, similar to the rules that currently apply to limited-scope dental and vision coverage. For employers, the Proposed Rule could create more flexibility in benefit design while helping expand access to fertility care.
Background: Excepted Benefits
The Proposed Rule relies on the longstanding concept of “excepted benefits” under HIPAA, ERISA, and the Affordable Care Act (ACA). Excepted benefits are generally exempt from many federal group health plan requirements, including certain ACA market reforms, HIPAA portability rules, and certain provisions of the No Surprises Act.
Under the ACA, employers generally cannot offer stand-alone health benefits unless those benefits qualify as excepted benefits or are integrated with a comprehensive medical plan. This has historically limited employers’ ability to offer fertility coverage on a stand-alone basis.
Current regulations recognize four categories of excepted benefits:
- Benefits excepted in all circumstances (e.g., workers’ compensation, automobile medical coverage, and accidental death and dismemberment coverage)
- Limited excepted benefits (e.g., stand-alone dental, vision, and long-term care coverage)
- Independent, non-coordinated excepted benefits (e.g., specified disease policies)
- Supplemental excepted benefits (e.g., Medicare supplemental coverage)
The Proposed Rule would add fertility benefits as a new category of limited excepted benefits.
Proposed Requirements for Fertility Excepted Benefits
Under the Proposed Rule, fertility benefits would qualify as limited excepted benefits only if they satisfy several conditions.
1. The Benefit Must Be Offered Separately from the Major Medical Plan
The fertility benefit must either:
- Be provided under a separate insurance policy, certificate, or contract; or
- Not be an integral part of the employer’s group health plan.
A fully insured fertility policy would be able to satisfy the first test, but self-insured fertility coverage would need to satisfy the second test. A fertility benefit generally would “not be an integral part of the plan” if:
- The employer also offers traditional group health plan coverage that is not itself an excepted benefit or account-based plan; and
- Employees may decline that coverage and still enroll in the fertility benefit.
For self-insured arrangements, the employer would need to maintain a traditional group health plan, but employees would not have to enroll in that plan to access the fertility benefit. In general, eligibility for the fertility benefit would still be limited to individuals who are eligible for the employer’s traditional medical plan. This structure closely mirrors the rules that currently apply to health FSAs and excepted benefit HRAs.
2. Coverage Must Primarily Address Infertility and Related Conditions
Substantially all covered benefits must be for the diagnosis, mitigation, or treatment of infertility or infertility-related reproductive health conditions and must primarily consist of services provided by licensed medical professionals.
Examples of eligible services include:
- Diagnostic testing, imaging, laboratory work, and hormone evaluations.
- Pre-conception care and treatment of underlying medical conditions contributing to infertility.
- Surgical interventions addressing infertility-related conditions.
- Ovulation induction and intrauterine insemination (IUI).
- Assisted reproductive technologies, including in vitro fertilization (IVF).
- Fertility counseling, care coordination, and navigation services.
3. Lifetime Benefits Are Capped
The Proposed Rule would permit fertility benefits to include a lifetime dollar limit of up to $120,000 per participant and covered beneficiaries, indexed for medical inflation beginning in 2028. Since the coverage would qualify as an excepted benefit, it would not be subject to the ACA’s prohibition on lifetime dollar limits for essential health benefits. Employers could choose to impose a lower lifetime maximum.
4. Participant Notice
Employers and insurers would need to provide a separate written notice describing the fertility benefit, as applicable. The notice must include:
- A summary of covered services and applicable limitations
- Any lifetime dollar maximum
- Information regarding network providers, if applicable
- Claims and submission procedures
The Departments’ intent is for this notice to be a concise, user-friendly summary rather than a lengthy legal document. The notice must be provided:
- No later than the first date on which the participant is eligible to enroll in plan coverage;
- Annually thereafter; and
- Upon request.
Importantly, the Departments state that including this information solely in a Summary Plan Description (SPD) would not satisfy the notice requirement.
Employer Takeaway
The Proposed Rule would not require employers to offer fertility benefits. Instead, it would give employers a new option for designing fertility coverage outside their major medical plans. For employers that already offer fertility coverage or are considering them, the proposal could provide additional flexibility while helping expand access to fertility care for employees and their families. Comments on the Proposed Rule are due July 13, 2026. If finalized, the Proposed Rule would generally apply to plan years beginning on or after January 1, 2027.
Additional Resources
- Executive Order: Expanding Access to In Vitro Fertilization
- Departments Release FAQs about Affordable Care Act Implementation Part 72: New Flexibility for Fertility Benefits
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