On October 16, 2025, the DOL, HHS, and Treasury (collectively, the departments) released new guidance in the form of FAQs regarding fertility benefit offerings. The guidance was issued in response to President Trump’s Executive Order 14216, "Expanding Access to In Vitro Fertilization," which called for recommendations to protect in vitro fertilization (IVF) access and reduce out-of-pocket and health plan costs for IVF treatment. Specifically, the FAQs clarify the types of “excepted benefits” employers can use to provide fertility benefits.
Background
As a reminder, excepted benefits are not required to comply with certain ACA mandates (e.g., coverage of preventive services without cost-sharing, prohibitions on annual limits for essential health benefits), or HIPAA portability requirements (e.g., special enrollment rights). There are several categories of excepted benefits, including independent, noncoordinated excepted benefits, and limited excepted benefits.
Independent Noncoordinated Benefits
Independent, noncoordinated excepted benefits include coverage for a specified disease or illness (e.g., cancer-only policies), and certain hospital indemnity or other fixed indemnity insurance. To qualify as independent noncoordinated excepted benefits, all the following conditions must be met:
- The benefits must be provided under a separate policy, certificate, or contract of insurance.
- There must be no coordination between the provision of such benefits and any exclusion of benefits under any group health plan maintained by the same plan sponsor.
- The benefits must be paid with respect to an event, regardless of whether benefits are provided for such event under any group health plan maintained by the same plan sponsor.
The FAQs explain that an employer may offer fertility benefits to employees as an independent, noncoordinated excepted benefit (e.g., a specified disease or illness policy that covers infertility benefits) if the above conditions are met, and the employees would also not need to be enrolled in the employer’s traditional group health plan. Such benefits could not be self-insured (since the coverage must be provided under a separate policy, contract, or certificate of insurance). However, the coverage would not prevent an employee from contributing to an HSA (provided they were also covered by an HDHP and otherwise HSA-eligible).
Limited Excepted Benefits
Limited excepted benefits include limited-scope vision or dental benefits, health FSAs, certain employee assistance programs (EAPs), and certain HRAs, such as excepted benefit HRAs (EBHRAs).
For an EBHRA to qualify as a limited excepted benefit, the following requirements must be met:
- Other traditional group health coverage (e.g., major medical coverage) must be made available to employees who are offered the EBHRA, although the EBHRA should not be an integral part of such plan.
- Amounts newly made available for each EBHRA plan year must not exceed the inflation-adjusted annual limit ($2,200 for plan years beginning in 2026).
- The EBHRA generally must not reimburse health coverage premiums.
- The EBHRA must be made available uniformly to all similarly situated individuals (regardless of any health factor), and required notice of such availability must be provided.
The FAQs point out that an employer can offer an EBHRA that reimburses an employee's out-of-pocket costs for fertility benefits.
Additionally, an employer can provide benefits for coaching and navigator services to help employees and their dependents understand their fertility options under an EAP that qualifies as a limited excepted benefit. However, the EAP would not be a limited excepted benefit if it offered any fertility benefits that are significant benefits for medical care. (Among other requirements, for an EAP to qualify as an excepted benefit, it must not provide “significant” medical care benefits, considering the amount, scope, and duration of covered services.)
Employer Takeaway
Employers who offer fertility benefits (or are considering doing so) should be aware of the new guidance, which represents initial steps by regulators to respond to the Trump administration’s executive order to make such benefits more broadly accessible.
The option to purchase insured coverage that provides only infertility benefits, which can be made available to all employees, may appeal to some employers who are currently providing these benefits on a self-insured basis through a fertility vendor and traditional HRA, which can only be made available to those enrolled in a traditional group health plan. Of course, the infertility policy options will depend on the carrier offerings, and the guidance did not directly address the cost aspects.
EBHRAs may be an alternative for employers seeking to provide a more limited benefit to assist employees with out-of-pocket infertility costs; however, such employees would also need to be offered traditional group coverage.
The departments indicated they intend to propose rules to provide additional ways that certain fertility benefits may be offered as limited excepted benefits. They are also considering changes to the standards under which supplemental coverage, including supplemental infertility coverage, can be provided as an excepted benefit by a group health plan. Accordingly, employers should stay tuned for further guidance, as we will report relevant updates in Compliance Corner.
Read the departments’ guidance on the legislation here: DOL FAQs about Affordable Care Act Implementation Part 72.