U.S. Departments Propose New Regulations for Fertility Benefits

On May 10, 2026, the U.S. Departments of Health and Human Services, Labor, and Treasury released proposed regulations classifying certain fertility benefits as limited excepted benefits. This move positions these benefits under specific sections of the Internal Revenue Code, ERISA, and the Public Health Services Act, generally exempting them from certain Affordable Care Act and HIPAA provisions. The regulations aim to enhance access to in vitro fertilization and other fertility treatments, aligning with Executive Order 14216 to make infertility treatments more affordable.

The departments are inviting public comment until July 13, 2026, seeking insights on eligibility criteria for fertility benefits to qualify as limited excepted benefits. These criteria propose treatments directed by authorized medical professionals, potentially mirroring those covered by major medical plans. Employers have considerable flexibility in designing these benefits if they adhere to set guidelines, including a lifetime maximum benefit cap of $120,000 per participant. Subject to annual adjustments based on medical inflation, this cap ensures the benefits stay ancillary, as outlined by relevant Code sections, ERISA, and the PHS Act.

The proposed regulations stipulate that fertility benefits must remain separate from an employer's main group health plan. Employers will be restricted from imposing premiums, contributions, or cost-sharing for these benefits. The departments are also evaluating whether employers should have flexibility akin to that of dental and vision benefits in terms of cost-sharing mechanisms. Mandatory notification requirements will ensure that plans and issuers provide clear and concise information about fertility benefits, with notifications required before enrollment eligibility.