Proposed Rule Aims to Expand Fertility Benefits

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Quick Hits

• A new proposed rule from the U.S. Department of Labor (DOL), U.S. Department of Health and Human Services (HHS), and U.S. Department of the Treasury would allow employers to provide coverage for fertility treatments as a limited excepted benefit.
• Employees would be able to enroll in excepted benefit fertility coverage without having to enroll in the employer’s group health plan.
• This excepted benefit coverage would apply only to the diagnosis and treatment of medical infertility or related conditions.
• Comments on the proposed rule are due July 13, 2026.

Businesses would be permitted to offer fertility coverage as a limited excepted benefit, similar to the standalone dental and vision coverage that some employers offer, according to the proposed rule, which was 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. Limited excepted benefits are not subject to requirements such as the Affordable Care Act (ACA) rules on annual and lifetime dollar limits and preventive services, the portability rules under the Health Insurance Portability and Accountability Act (HIPAA), and the Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA).

To qualify as an excepted benefit, the fertility coverage would have to be either provided under a separate policy, certificate, or contract of insurance, or not be “an integral part of a plan,” such as a self-insured plan. For this purpose, “not an integral part” means that employees could enroll separately in fertility benefits or the employer’s group health plan or both.

The proposed rule defines fertility benefits as coverage provided for the “diagnosis, mitigation, or treatment of infertility or infertility-related reproductive health conditions.” This description may include in vitro fertilization (IVF), intrauterine insemination, direct sperm injection, fertility medications, fertility counseling, or surgery to remove fibroids or unblock fallopian tubes. Because the proposed rule is limited to benefits in connection with infertility, excepted benefit programs would potentially exclude fertility treatment for same-sex couples or benefits that are not for the purpose of treating infertility, such as egg freezing that is not medically necessary. That may make benefits on a limited excepted benefit basis less generous than what some employers already provide through their group health plans.

Fertility benefits offered as a limited excepted benefit would be subject to a lifetime maximum of up to $120,000 per participant (including beneficiaries) with mandatory inflation adjustment each year. Notice requirements also apply, which would require the employer to provide a coverage description with a summary of benefits and coverage limitations, how to identify and utilize a network provider, and procedures for claims reimbursement.

The proposed rule follows a 2025 executive order that directed federal agencies to produce policy recommendations to increase access to IVF and reduce the out-of-pocket costs to patients.

State Laws

A growing number of states and the District of Columbia have passed laws requiring fully insured health plans to cover infertility diagnosis and treatments. California, Colorado, Connecticut, Delaware, Illinois, Maryland, Massachusetts, Maine, New Hampshire, New Jersey, New York, Rhode Island, and Utah have laws that require certain health plans to cover in vitro fertilization or other fertility treatments, according to the Kaiser Family Foundation. Twenty-one states have laws that require health plans to cover fertility preservation, such as egg freezing or sperm freezing, when necessary because of a medical intervention like surgery, chemotherapy, or radiation. In some cases, religious employers may be exempt from state mandates to cover fertility treatments.

Next Steps

The deadline for the public to submit comments on the proposed rule is July 13, 2026.

Employers may wish to review their health plan designs and track the total number of employees receiving fertility treatments each year to assess what will best meet employees’ needs. If the proposed rule is finalized, then employers can consider whether providing a limited excepted benefit for fertility treatments would serve business objectives, such as boosting recruiting and retention.

Ogletree Deakins’ Employee Benefits and Executive Compensation Practice Group will continue to monitor developments and will post updates on the Employee Benefits and Executive Compensation and Healthcare blogs as additional information becomes available. This article and more information on how the Trump administration’s actions impact employers can be found on Ogletree Deakins’ Administration Resource Hub.

This article and more information on how the administration’s actions impact employers can be found on Ogletree Deakins’ Administration Resource Hub.

In addition, the Ogletree Deakins Client Portal provides subscribers with timely updates on state family and medical leave laws and pregnancy accommodation laws. Premium-level subscribers have access to comprehensive law summaries and updated policies, as well as detailed step-by-step guidance and templates for handling Pregnancy Accommodation Requests. Snapshots and Updates are complimentary for all registered client users. For more information on the Client Portal or a Client Portal subscription, please email clientportal@ogletree.com.

Timothy J. Stanton is a shareholder in Ogletree Deakins’ Chicago office.

Ryan B. Kadevari is an associate in Ogletree Deakins’ Los Angeles office.

This article was co-authored by Leah J. Shepherd, who is a writer in Ogletree Deakins’ Washington, D.C., office.

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