Employers may soon have a new way to help employees access fertility treatments without incorporating those benefits into their primary health plans.

The Departments of Labor, Health and Human Services and the Treasury have proposed regulations that would create a new category of “limited excepted benefits” for fertility treatments under the Affordable Care Act. If finalized, employers could begin offering these benefits in 2027. The proposal is intended to expand access to fertility care while giving employers more flexibility in designing benefit programs.

Like standalone dental and vision plans, excepted fertility benefits would be exempt from many ACA requirements and certain Employee Retirement Income Security Act rules that apply to traditional group health plans.

How the benefit would work

The agencies say the proposal is designed to give employers flexibility to offer fertility benefits for both women and men and to tailor coverage to their workforce’s needs.

Services that may be covered include:

• Diagnostic testing for infertility and reproductive health conditions
• In vitro fertilization
• Intrauterine insemination
• Fertility medications
• Cryopreservation and storage of eggs, sperm or embryos
• Treatment of conditions such as endometriosis, blocked fallopian tubes, diminished ovarian reserve, male factor infertility and other medically recognized infertility conditions

To qualify, a fertility benefit would need to meet several criteria:

• Traditional group health coverage must be offered, although employees would not have to enroll in it.
• The benefit must be under a separate policy, certificate or contract and could not be integrated into the primary group health plan.
• Substantially all benefits must relate to diagnosing, mitigating or treating infertility or infertility-related reproductive health conditions.
• Services generally must be provided by licensed medical professionals.
• The benefit would be subject to a combined lifetime maximum of $120,000 per participant and eligible beneficiary, indexed for medical inflation after 2028.
• Employers would have to provide a clear written notice describing the coverage and explaining that it is an excepted benefit.

Areas under consideration

The agencies are seeking additional input that may shape the final regulations, including:

• Whether the lifetime cap should instead be an annual limit with rollover provisions.
• Whether the proposed $120,000 limit appropriately reflects the cost of fertility treatments.
• Whether employers should be allowed to charge employee premiums, contributions or cost sharing for the benefit, similar to dental and vision plans.
• Whether alternative notice requirements would better inform employees.
• How quickly employers and insurers could implement the new benefit structure.

The takeaway

The public comment period closed July 13, and final regulations could arrive by year-end, allowing employers to begin offering these benefits in 2027.

In the meantime, employers may want to review their current health plan designs, evaluate whether employees are seeking fertility treatments and assess how a standalone fertility benefit could support recruiting and retention goals.

If the rule is finalized, the new option could give employers another tool to provide meaningful family-building benefits while maintaining greater flexibility over plan design and costs.

New federal guidance announced Oct. 16, 2025, could make it easier for companies to add or expand fertility support for workers without having to fold it into their major medical plans.

The guidance, a new set of FAQs issued by the Departments of Labor, Health and Human Services and Treasury, spells out how infertility benefits like in vitro fertilization and hormone therapy can qualify as “excepted benefits,” a category of coverage that’s not subject to Affordable Care Act mandates. The guidance was in response to an executive order issued by President Trump in February 2025.

Under the ACA, most employer health plans must follow strict coverage and reporting rules. But certain benefits — such as dental, vision, FSAs, HRAs, EAPs and hospital indemnity plans — are “excepted,” meaning they’re exempt from the ACA’s mandates on preventive care, annual dollar limits and other requirements.

Three options

Under the new guidance, employers have three ways to structure fertility benefit coverage:

1. Separate, insured fertility policy — Employers can now buy a fully insured policy that covers infertility care as its own benefit. To qualify as an excepted benefit, the policy must:

• Be issued under a separate insurance contract.
• Not coordinate with the company’s main health plan.
• Pay benefits regardless of what the health plan covers.

This lets employers extend fertility coverage to all workers, even those not enrolled in the medical plan. Self-funded programs don’t qualify under this option.

2. Excepted benefit HRA — An employer could reimburse out-of-pocket fertility expenses through an “excepted benefit” HRA if it meets federal limits. To qualify, the HRA:

• Must be offered alongside a traditional group health plan.
• Can reimburse up to $2,200 in 2026 (indexed annually).
• Can’t reimburse insurance premiums.
• Must be offered on the same terms to similarly situated employees.

It’s a smaller-scale solution but can help offset costs for staff pursuing fertility treatment.

3. Employee assistance program — Employers can use an EAP to offer coaching or navigator services that help workers understand their fertility options or find providers. The EAP cannot provide “significant” medical care or be tied to the main health plan, and participation must be free and voluntary.

This option doesn’t pay for treatment but adds support for staff exploring fertility services.

Examples of fertility benefits

Depending on the setup and insurer, fertility coverage may include:

• Diagnostic testing and consultations
• Fertility drugs and hormone therapy
• Procedures such as in vitro fertilization or intrauterine insemination
• Egg, sperm or embryo storage
• Donor services or gestational carrier expenses
• Coaching, navigation or second-opinion services

Employers that already cover fertility care under their medical plans can continue to do so, but the new guidance gives more flexibility for those wanting to offer coverage to a broader workforce.

Takeaway

The new FAQs are informal guidance that expands on existing rules rather than creating new legal avenues for fertility coverage.

The agencies also stated they intend to propose regulations that could add more ways to offer infertility benefits as limited excepted benefits and may revisit standards for supplemental coverage.

If you offer or plan to offer fertility benefits, be alert for upcoming rulemaking and review designs with counsel to keep your offerings ACA-exempt and compliant.