On May 13, 2026, the Departments of Treasury, Labor, and Health and Human Services jointly published proposed regulations that would establish a new category of “limited excepted benefits” for fertility-related coverage under Employee Retirement Income Security Act of 1974 (ERISA), the Internal Revenue Code, and the Public Health Service Act. If finalized, these rules would create a streamlined pathway for employers to offer separate fertility coverage (on an insured or self-insured basis) to employees who are not otherwise enrolled in the employer’s primary group health plan. The fertility “excepted benefits” would be generally exempt from Affordable Care Act’s mandates (such as requirements to cover certain preventive care services), HIPAA portability rules, the No Surprises Act, and certain other federal mandates that apply to traditional group health plans. If finalized, the regulations would be effective for plan years beginning on or after January 1, 2027.
What the Proposed Rules Would Do
The proposed regulations would permit employers to offer fertility benefits — covering diagnosis, mitigation, or treatment of infertility or infertility-related reproductive health conditions — as a standalone insured or self-insured benefit separate from major medical coverage. Covered services could include diagnostic lab tests, imaging, hormone panels, in vitro fertilization (IVF), intrauterine insemination (IUI), fertility medications, surgical procedures, and preconception care.