Federal agencies recently proposed a rule that would make it simpler for employers to offer fertility benefits outside of their main health plan — without running into compliance problems under the Affordable Care Act.
Here’s the quick backstory: Under the ACA, stand-alone benefit plans (ones not integrated with a major medical plan) generally have to meet a number of coverage requirements to be compliant. There’s an exception for what are called “excepted benefits” — a defined category that includes things like dental and vision coverage. The new proposal would add fertility benefits to that list.
What the proposed rule would require
For a fertility benefit to qualify as a new “limited excepted benefit,” it would need to meet four conditions:
- It must be offered separately from the employer’s main group health plan, and employees must be able to decline the main plan and still enroll in the fertility benefit.
- The benefit must be primarily for the diagnosis or treatment of infertility or related reproductive health conditions.
- Lifetime coverage cannot exceed $120,000 per participant (adjusted over time for medical inflation).
- Participants must receive a written notice describing the benefit — at enrollment, annually, and upon request.
On that last point: a general mention buried in a Summary Plan Description won’t cut it. The agencies specifically want the notice to be short and easy to understand.
A few things to keep in mind
The proposal appears aimed at employers who don’t currently cover fertility treatments under their major medical plan, giving them a new, structured way to do so. That said, elective fertility treatments — like egg freezing for someone without an infertility diagnosis — don’t appear to be covered under this proposal as written.
If finalized, the rule would apply to plan years beginning on or after January 1, 2027. Comments on the proposal are due by July 13, 2026.
THE FOREWORK BENEFIT: Whether you’re thinking about adding fertility benefits for the first time or you already offer them and want to make sure your current structure holds up under the new framework, Forework members can use their monthly attorney hours to work through exactly these questions — plan design, notice requirements, compliance gaps, and more.