Departments of Labor, the Treasury and Health and Human Services propose a new standalone excepted benefit for employer fertility coverage
As of our last check on November 2, 2026, this is a proposal, not a requirement. Comments closed July 13, 2026.
We check the Federal Register daily for later actions. We check federal court opinions for rulings on published rules weekly, on Mondays. A ruling can take time to reach us, so not finding one here does not mean there is none.
In short
- What changed
- The Departments of Labor, the Treasury and Health and Human Services propose letting employer group health plans offer fertility benefits as a new type of limited excepted benefit, which is generally exempt from federal health plan market rules. To qualify, the benefit would have to focus on diagnosing, mitigating or treating infertility and stay within a $120,000 lifetime limit per participant, indexed for medical inflation.
- Who's affected
- Private and non-federal government employers that sponsor group health plans, and the insurers that serve them, but only if they choose to offer this benefit. The proposal sets no employer size threshold.
- What to do
- This proposed rule creates no duties for employers now. Comments are due July 13, 2026. As proposed, the option would be available for plan years beginning on or after January 1, 2027.
What changed
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From the sourceSUMMARY
proposed rules that would amend the regulations regarding excepted benefits ... to establish certain fertility benefits as a new category of limited excepted benefits.
The Departments propose to make certain fertility benefits a new category of limited excepted benefits under federal health plan law.
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From the sourceSUMMARY
Excepted benefits are generally exempt from the market requirements that were added to those laws by the Health Insurance Portability and Accountability Act, the Patient Protection and Affordable Care Act, the No Surprises Act
Excepted benefits are generally exempt from the market requirements added by the Health Insurance Portability and Accountability Act, the Affordable Care Act and the No Surprises Act.
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From the sourceProposed 29 CFR 2590.732(c)(3)(ix)(A)
Coverage is limited to benefits 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 medical professionals authorized to practice under applicable law
To qualify, substantially all of the benefit would have to be for diagnosing, mitigating or treating infertility or infertility-related reproductive health conditions, provided by licensed medical professionals.
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From the sourceProposed 29 CFR 2590.732(c)(3)(ix)(B)
The total lifetime benefit per participant, together with their beneficiaries (if such beneficiaries are eligible for the fertility benefit), does not exceed $120,000.
Also: Proposed 29 CFR 2590.732(c)(3)(ix)(B)
In the case of any plan year beginning after December 31, 2027, the maximum lifetime dollar amount in the preceding sentence shall be increased by medical inflation.
The total lifetime benefit per participant, together with eligible beneficiaries, would be capped at $120,000, increased by medical inflation for plan years beginning after December 31, 2027.
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From the sourceProposed 29 CFR 2590.732(c)(3)(ix)(C)
fertility benefits are not an integral part of a group health plan if other group health plan coverage that is not limited to excepted benefits ... is made available by the same plan sponsor for the plan year to participants that are offered the fertility benefit
Also: Proposed 29 CFR 2590.732(c)(3)(ix)(C)
participants (and beneficiaries, if eligible for the fertility benefit) enrolling in the fertility benefit may decline coverage for the other group health plan coverage.
If the benefit is not provided under a separate insurance policy, the same plan sponsor would have to make regular group health coverage (not limited to excepted benefits, and not a health reimbursement arrangement or other account-based plan) available to those offered the fertility benefit, and participants could decline that regular coverage.
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From the sourceProposed 29 CFR 2590.732(c)(3)(ix)(D)(1)
Such notice must be written in a manner calculated to be understood by the average plan participant and must also include a description of the coverage, including a summary of benefits and limitations of the coverage
Also: Proposed 29 CFR 2590.732(c)(3)(ix)(D)(2)
The plan or issuer must provide the notice no later than the first date on which the participant or beneficiary is eligible to enroll in coverage, and annually thereafter, as well as upon request of the participant or beneficiary.
The plan or insurer would have to give a plain-language written notice describing the coverage and its limits, no later than the first date a person can enroll, annually after that, and on request.
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From the sourceSupplementary Information, III.H.1
These proposed rules would not require that employers or issuers offer these benefits, specify the scope of these benefits, or require that employers contribute financially to any coverage that they offer.
Offering the benefit would be voluntary. Employers would not have to offer it, set its scope or contribute toward its cost.
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From the sourceSupplementary Information, II.A.3
the Departments are not proposing to prohibit plans and issuers from charging a premium or contribution or imposing cost sharing for excepted fertility benefits.
The proposal would not bar plans and insurers from charging premiums or imposing cost sharing for the fertility benefit.
Who is affected
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From the sourceSupplementary Information, II.A.6
As proposed, these rules would apply to group health plans and health insurance issuers offering group health insurance coverage.
As proposed, the rules would apply to group health plans and to insurers offering group health insurance coverage.
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From the sourceSupplementary Information, II.A.3
While only insured coverage may qualify under the first test, both insured and self-insured coverage may qualify under the second test.
Also: Supplementary Information, II.A.4
the Departments would require issuers and plan sponsors of both insured and self-insured excepted fertility benefits to provide this notice.
Both insured and self-insured plans could use the option, and both would have to provide the notice.
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Our analysisSupplementary Information, II.A.4
Under these proposed rules, the notice for non-Federal governmental plans would similarly be expected to function as an executive summary
State and local government employers that sponsor health plans are covered as well as private employers, since the proposal addresses notices for non-federal governmental plans.
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Our analysisSupplementary Information, III.F.2
issuers providing insured coverage to fully insured group health plans in States already requiring IVF coverage would likely not be able to meet State requirements by offering those benefits through excepted benefit plans.
Employers with fully insured plans in states that mandate in vitro fertilization coverage may get little use from the option, because the Departments expect insurers could not meet those state mandates through an excepted benefit.
What it means in practice
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Our analysisSupplementary Information, II.A.2
such employers could retain any current dollar limit, as long as it is $120,000 or lower, while adding a limiting principle.
Employers that already offer fertility benefits, often through specialty vendors, could restructure them as an excepted benefit and keep an existing dollar limit of $120,000 or less.
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From the sourceProposed 29 CFR 2590.732(c)(3)(ix)(E)(3)(ii)
The employer may still cover fertility benefits that are in excess of the lifetime dollar limit through its group health plan that is not limited to excepted benefits and that is not an HRA or other account-based group health plan
An employer could still cover fertility costs above the lifetime limit through its regular group health plan, if that plan otherwise complies with the market rules.
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From the sourceSupplementary Information, II.A.1
Nothing in these proposed rules would prevent such overlapping coverage and coordination-of-benefits provisions under the terms of the plan or coverage
The proposal would not prevent overlapping coverage between the fertility benefit and a major medical plan, or coordination-of-benefits terms.
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From the sourceSupplementary Information, III.J.3
When employers and employees are permitted to pay plan premiums for excepted benefits with pre-tax dollars, these contributions are excluded from taxable income.
The Departments' cost analysis notes that when premiums for excepted benefits can be paid with pre-tax dollars, those contributions are excluded from taxable income.
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From the sourceSupplementary Information, V.C.3.a
These costs would not have a significant impact on a substantial number of small entities.
The Departments expect the notice and related costs would not significantly affect a substantial number of small plans.
What to do
Required
This is a proposed rule, so it creates no requirements for employers yet. If it is finalized, plans or insurers that choose to offer an excepted fertility benefit would have to meet its conditions, including the written notice.
Worth considering
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Our suggestionDATES
To be assured consideration, comments must be received at one of the addresses provided below, no later than July 13, 2026.
Also: ADDRESSES
In commenting, please refer to file code 1210-AC40.
Consider submitting comments by July 13, 2026, referring to file code 1210-AC40, if the proposed lifetime limit, notice or applicability date would affect your plan design.
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Our suggestionSupplementary Information, II.A.2
such employers could retain any current dollar limit, as long as it is $120,000 or lower, while adding a limiting principle.
Consider reviewing any current fertility coverage (vendor contracts, dollar limits, eligibility rules) against the proposed conditions to see whether it could be restructured as an excepted benefit.
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Our suggestionSupplementary Information, III.F.2
issuers providing insured coverage to fully insured group health plans in States already requiring IVF coverage would likely not be able to meet State requirements by offering those benefits through excepted benefit plans.
If your plan is fully insured, consider checking whether your state mandates fertility or in vitro fertilization coverage, since the Departments expect excepted benefits could not satisfy those mandates.
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Our suggestionSupplementary Information, II.A.4
if multiple documents are furnished together as part of an open enrollment packet, the excepted fertility benefits notice could be included as part of the packet.
Consider watching for a final rule and, if you plan to offer the benefit, planning to include the notice in your open enrollment materials.
Open questions
The source leaves these open. We'll update this record if a later document answers them.
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Will the final rule use a lifetime dollar limit, or an annual limit that carries over from year to year?
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Will the final rule bar employers from charging employees premiums for the fertility benefit?
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Can a fully insured plan in a state that mandates in vitro fertilization coverage use an excepted fertility benefit?
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Could employees pay premiums for an excepted fertility benefit with pre-tax dollars through payroll?
Related changes
History
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Excepted Fertility Benefits Source (opens in a new tab)