On October 16, 2025, the White House released a Fact Sheet announcing the Trump administration’s intent to work with pharmaceutical companies to lower costs and expand access to in vitro fertilization (IVF). As part of the focus on fertility care, the fact sheet discusses a “New Benefit Option” for employers to offer fertility benefits to employees in the future as a standalone plan, regardless of if benefits for fertility treatments are also included under an employer health plan.
In addition to the fact sheet, the Departments of Labor, Health and Human Services, and the Treasury (the Departments) released guidance titled, “FAQs about Affordable Care Act (ACA) Implementation Part 72.” Both the fact sheet and the FAQs were created to outline policies originating from the 2025 Executive Order (EO) on “Expanding Access to In Vitro Fertilization.”
Fertility Benefits Offered by Group Health Plans
Employers have typically offered fertility benefits as part of a group health plan. This new guidance appears to confirm that employers can offer benefits through a standalone plan as excepted benefits in the same way dental and vision plans are offered as plans separate from the group health plan.
The International Foundation’s Employee Benefits Survey: 2024 Survey Report found that 42% of U.S. organizations offer fertility benefits. In the past eight years, organizations have been increasing the types of fertility-related benefit offerings:
| Benefit Type | 2024 | 2022 | 2020 | 2018 | 2016 |
| Overall Fertility Benefits | 42% | 40% | 30% | n/a | n/a |
| Fertility Medications | 32% | 28% | 24% | 14% | 8% |
| In Vitro Fertilization | 32% | 30% | 24% | 17% | 13% |
| Genetic Testing to Determine Issue | 19% | 16% | 12% | 11% | n/a |
| Non-IVF Treatments | 19% | 17% | 11% | 11% | 6% |
| Egg Harvesting/Freezing Services | 16% | 14% | 10% | 6% | 2% |
Excepted Benefits
Employer-sponsored group health plans are subject to various federal laws, such as the Affordable Care Act (ACA), Health Insurance Portability and Accountability Act (HIPAA), and Employee Retirement Income Security Act of 1974 (ERISA). Excepted benefits are not subject to ACA requirements, including preventive services without cost sharing, lifetime and annual dollar limits for essential health benefits, prohibitions on preexisting conditions, etc. Excepted benefits are also not subject to HIPAA portability requirements such as special enrollments and nondiscrimination based on health.
Employer-sponsored fertility plans addressed in the guidance would be considered an excepted benefit. The FAQ refers to four categories of excepted benefits:
- Benefits not considered health coverage
- Supplemental excepted benefits
- Limited excepted benefits
- Independent, noncoordinated excepted benefits.
Two of the categories of excepted benefits above include benefits that are generally not health coverage, such as automobile insurance, liability insurance, workers’ compensation, and coverage only for accident or disability insurance. Supplemental excepted benefit plans include Medigap, Tricare or similar coverage supplemental to that provided by a group health plan.
According to the FAQs, fertility benefits could be offered by employers as excepted benefits if they meet the following requirements:
- Benefits are offered in a separate policy, certificate or contract of insurance.
- There is no coordination between the provision of benefits and an exclusion of benefits under a group health plan from the same plan sponsor.
- Benefits are paid with respect to an event without regard to whether benefits are provided with respect to such event under any group health plan maintained by the same plan sponsor. (Note that it’s possible for future regulations to clarify the “respect to event” phrasing or provide examples to further explain.)
Limited Excepted Benefits
Most employer-sponsored dental, vision, employee assistance plans, health flexible spending accounts (FSAs) and others are considered excepted benefits and not subject to ACA mandates and HIPAA requirements. These plans are not considered minimum essential coverage and do not qualify as an offer of coverage for the ACA employer mandate.
Independent, Noncoordinated Excepted Benefits
Plans that fall under this category include specific disease or illness (such as cancer) policies, hospital indemnity and fixed indemnity plans. These types of plans are also considered excepted benefits and are exempt under the ACA and HIPAA rules.
FAQ Guidance
Several questions addressed in the FAQ explain that:
- Plan participants are not required to enroll in the group health plan to be enrolled in a fertility benefit plan
- Fertility benefits cannot be offered as a self-funded plan
- Plan participants enrolled in a fertility benefit plan are still eligible to contribute to an HSA, given that they are enrolled in a high-deductible health plan (HDHP) and have no other disqualifying coverage.
What’s Next for Employers
The Departments intend to create proposed regulations in a notice including a comment period before rules are finalized. Timing of this process is unclear at this point. Clarifications are still needed on some of the above topics before employers can begin to plan to add fertility benefits as excepted benefits to their employee benefit programs.
Stay tuned to the International Foundation for the status of regulatory guidance on fertility benefits. Visit the International Foundation’s Regulatory Update webpage for this and other regulations.
Developed by International Foundation Information Center staff. This does not constitute legal advice. Please consult your plan professionals for legal advice.
