Proposed Regulations on Fertility Benefits for Employers

In 2027, employers may have the option to provide fertility benefits as a limited excepted benefit, according to proposed regulations revealed on May 10, 2026. These guidelines were jointly issued by the U.S. Department of Labor, the U.S. Department of Health and Human Services, and the U.S. Department of the Treasury. As a limited excepted benefit, these plans would be exempt from several protections under the Employee Retirement Income Security Act (ERISA).

The proposed rule positions fertility coverage similarly to standalone dental and vision plans. As such, these benefits would not be bound by specific mandates under the Affordable Care Act (ACA), including regulations concerning annual and lifetime dollar limits, preventive services, portability under the Health Insurance Portability and Accountability Act (HIPAA), or the Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA).

To qualify as an excepted benefit, the fertility coverage must either be offered through a separate policy or allow employees to enroll independently in either the fertility benefits or the employer's main health plan. This structure ensures that such benefits remain distinct from the primary health plan, particularly if the plan is self-insured.

These benefits would cover infertility-related services such as diagnosis and treatment, including procedures like in vitro fertilization (IVF) and intrauterine insemination. However, treatments for other purposes, such as elective egg freezing, might not be covered under these proposed benefits. Therefore, some employers may choose to provide more comprehensive fertility coverage through their traditional group health plans.

Employers offering these benefits would face a lifetime coverage cap of $120,000 per participant, adjusted for inflation annually. Additionally, they must fulfill certain notification obligations, including providing detailed summaries of benefits, coverage limitations, network provider information, and claims reimbursement procedures.

This proposal responds to a 2025 executive order advocating increased access to fertility treatments and reduced patient costs associated with procedures like IVF. Numerous states have mandated that fully insured health plans include infertility treatment, with requirements differing by state. Jurisdictions such as California, Colorado, and New Jersey support IVF coverage, while many require fertility preservation methods in medical contexts, with religious organizations often exempt from these mandates.

Stakeholders have until July 13, 2026, to submit feedback on these proposed regulations. Employers are advised to evaluate their health benefit structures to determine whether offering limited excepted fertility benefits aligns with their business goals, especially concerning recruitment and retention.