Proposed Rule Promotes Fertility Benefits

Background on support for fertility benefits

The proposed rule advances the administration’s priority to expand access to fertility benefits. In February 2025, the administration issued Executive Order 14216, “Expanding Access to In Vitro Fertilization,” which sought to protect access to in vitro fertilization (IVF) and reduce costs for fertility treatment. (See our insight, “Executive Order on IVF.”)

In November 2025, the Departments issued FAQs Part 72, which addressed how plan sponsors can use existing law to offer fertility benefits. For instance, FAQs Part 72 clarified that fertility benefits can be reimbursed through an excepted benefits HRA. (See our insight, “New Opportunities for Fertility Benefit Coverage.”)

The proposed rule on excepted fertility benefits

In the proposed rule published on May 13, 2026, the Departments would expand the category of limited excepted benefits to allow greater flexibility for plans to provide access to fertility benefits. The proposed rule provides detailed requirements, including notice requirements and examples. It also requests comments on, for example, whether an annual limit requirement would be preferred rather than a lifetime limit.

The Departments have previously addressed other limited excepted benefits, such as limited dental and vision benefits. Similarly, they are now proposing establishing specific requirements that must be met for fertility benefits to qualify as limited excepted fertility benefits. Specifically:

• Benefits must either (1) be provided under a separate policy, certificate or contract of insurance or (2) otherwise not be an integral part of a group health plan.
• Coverage must be limited to benefits substantially all of which are for the diagnosis, mitigation or treatment of infertility or infertility-related reproductive health conditions and are provided by medical professionals authorized to practice under applicable law.
• The total lifetime dollar limit per participant, together with their eligible beneficiaries, cannot exceed $120,000 (adjusted for inflation for plan years after 2028).
• The plan or insurer must provide written notice of the fertility benefit coverage to participants and eligible beneficiaries.

Note, a self-funded fertility benefit is not an integral part of a traditional group health plan offered by the same plan sponsor if the participants and beneficiaries who enroll in the self-funded fertility benefit can decline coverage under the sponsor’s traditional group health plan. Thus, the plan sponsor offers both the traditional group health plan and the fertility benefits to participants and permits participants to enroll in either or both benefit options or decline to participate in either or both options for the plan year.

The proposed rule clarifies that fertility treatments include:

• Medications
• Surgery
• Intrauterine insemination
• IVF and other assisted reproductive technology
• Treatment of reproductive health conditions (e.g., polycystic ovary syndrome, endometriosis and uterine fibroids)
• Treatment of endocrinopathies (e.g., thyroid disorders)
• Treatment of primary ovarian disorders
• Treatment of male infertility disorders

The Departments acknowledge that the proposed excepted fertility benefits may include benefits that are covered by major medical plans and that in some instances coordination of benefits may be necessary.

Proposed notice requirements

Written notice would have to be provided on the first date the participant or beneficiary is eligible to enroll in the limited excepted fertility benefit, annually thereafter and upon request. The notice must be written in manner expected to be understood by the average plan participant and must include the following content:

• A description of the coverage with a summary of benefits and limitations of the coverage (including the lifetime dollar amount limit established by the plan or insurer)
• How to identify and utilize a network provider, if applicable
• How to submit a claim for reimbursement, including whether the benefit uses the same claims procedure as for the sponsor’s other group health plans

The notice would be sent to each participant’s last known address and, if different, also to any eligible beneficiary’s last known address. The rule emphasizes that the notice should be provided in manner expected to be understood by an average participant.

Coordination with state law requirements

Requirements related to coverage of fertility benefits vary among state laws. Some states include fertility benefits as an essential health benefit (EHB) under the ACA. Under the ACA, non-grandfathered large insured and self-funded group health plans cannot impose lifetime and annual limits on the EHBs covered under the plan. For this purpose, self-funded plans select a state EHB benchmark plan to reference. Therefore, unlike the excepted benefit fertility benefit, a traditional group health plan relying on a state EHB benchmark that includes fertility benefits cannot impose a lifetime maximum on the fertility benefits offered under the plan.

In addition to state EHB laws, some states mandate certain fertility coverage through other laws. State laws may influence the fertility benefits that must be offered by an insured group health plan. While insured plans may be required to cover fertility benefits according to applicable state law, under the doctrine of preemption, such requirements generally do not apply to self-insured group health plans governed by ERISA.

The Departments recognize the existence of the range of state law implications. However, they suggest the limited excepted fertility benefit can be offered in a manner that ensures compliance with both state laws and federal law.

Implications for sponsors of group health plans

Plan sponsors should watch for the final rule.

Until then, plan sponsors may wish to review their current fertility benefit offerings and consider whether to make any changes in light of the proposed rule.

Sponsors of group health plans can make fertility benefits available through the plan, through a limited excepted benefit arrangement, or both.

Plans that already offer fertility benefits through group health plan coverage may choose to evaluate whether they want to augment that coverage under the group health plan or through a self-funded or insured limited excepted fertility benefit.

While the rule allows flexibility for limited excepted to include a broad range of fertility benefits, they can also be tailored to include specific benefits and can be offered at a lower lifetime amount than the amount in the proposed rule. Plan sponsors can consider what fertility benefit design might best complement benefits already available under the group health plan.

Plan sponsors that decide to offer limited excepted fertility benefits will need to ensure compliance with all aspects of the final rule once it is issued, including the specific notice requirements along with considering implications related to any relevant state laws.