Proposed Rule on Excepted Fertility Benefits

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Introduction

On May 10, 2026, the U.S. Departments of Health and Human Services (HHS), Labor, and the Treasury (collectively, the Departments) proposed rules to establish certain fertility benefits as a new category of limited excepted benefits. This new category would, if finalized, allow group health plans and health insurance issuers to offer benefits for certain fertility services that are generally exempt from many of the federal group market requirements that otherwise apply.(1)

Excepted Benefits

Group health plans and group and individual market health insurance coverage are subject to certain market requirements under the Health Insurance Portability and Accountability Act (HIPAA), the Affordable Care Act, and other laws. However, certain categories of limited excepted benefits, such as limited scope dental or vision benefits, and long-term care benefits, are not subject to these market requirements, as long as they are provided under a separate policy, certificate, or contract of insurance; or otherwise not an integral part of the plan.(2) The Departments have authority to create additional categories of such limited excepted benefits in regulations.(3) The Departments have previously exercised such authority for health flexible spending arrangements (FSAs), employee assistance programs, limited wraparound coverage and excepted benefit health reimbursement arrangements (HRAs).(4)

Excepted Fertility Benefits

In Executive Order 14216, “Expanding Access to In Vitro Fertilization,” President Trump highlighted the importance of family formation and emphasized that “as a Nation, our public policy must make it easier for loving and longing mothers and fathers to have children.” As part of the Executive Order, President Trump made it the policy of the Administration to ensure reliable access to IVF treatment, including by easing unnecessary statutory or regulatory burdens to make IVF treatment drastically more affordable.

In response to Executive Order 14216, the Departments reviewed existing avenues for expanding affordable fertility benefits, and propose offering a new regulatory pathway for employers to provide fertility benefits as a new limited excepted benefit which will best address the needs of their employees and their families. Under these proposed rules, fertility benefits would be excepted if they satisfy four conditions:

  1. Scope

    Excepted fertility benefits would be limited to fertility‑related items and services, substantially all of which are for the diagnosis, mitigation, or treatment of infertility or infertility‑related reproductive health conditions and substantially all of which are provided by licensed or authorized medical professionals.

  2. Maximum Lifetime Dollar Limit

    The total lifetime benefit for excepted fertility benefits would be limited to $120,000 per participant, together with their beneficiaries, if eligible (indexed for medical inflation for plan years after 2027).

  3. Provided under a Separate Policy or Otherwise Not Integral to the Plan

    The benefits would be required to be provided under a separate policy, certificate, or contract of insurance or otherwise not be an integral part of the plan maintained by the same plan sponsor.

    In order to not be an integral part of the plan, the employer would be required to offer participants access to a traditional group health plan that is not limited to excepted benefits and that is not an account-based plan, such as a health FSA or HRA. However, participants would not need to enroll in that plan to receive the fertility benefit.

  4. Notice

    The plan or issuer must provide a written notice to participants and beneficiaries that describes the excepted fertility benefit coverage, including its benefits and limitations, how to access in‑network providers, and how to submit claims. This notice must be written in a manner understandable to the average participant and must be provided at the first opportunity to enroll, annually thereafter, and upon request.

Applicability Dates

The proposed rule would apply to group health plans and to health insurance issuers offering group health insurance coverage for plan years beginning on or after January 1, 2027. HHS is seeking comment on whether similar standards should apply for excepted fertility benefits to be offered in the individual market for policy years beginning on or after January 1, 2027.

Comments

The Departments encourage interested parties to comment on the proposed rule at https://www.regulations.gov/. Comments should be submitted by [Insert date 60 days after date of publication in the Federal Register].

Footnotes

  1. The Departments have the statutory authority to define additional categories of limited excepted benefits through regulation. ↩

  2. Internal Revenue Code (Code) section 9831(c)(1), Employee Retirement Income Security Act (ERISA) section 732(c)(1), and Public Health Service Act (PHS Act) sections 2722(c)(1) and 2763(b). ↩

  3. Code section 9832(c)(2)(C), ERISA section 733(c)(2)(C), and PHS Act section 2791(c)(2)(C). ↩

  4. 26 CFR 54.9831-1(c)(3)(v)-(viii); 29 CFR 2590.732(c)(3)(v)-(viii); and 45 CFR 146.145(b)(3)(v)-(viii). ↩