On October 16, 2025, the Departments of Treasury, Labor, and Health and Human Services jointly released FAQs About Affordable Care Act Implementation Part 72, clarifying how employers may offer fertility benefits as HIPAA excepted benefits under existing federal regulations. The agencies also announced their intent to pursue future rulemaking to create additional pathways for offering fertility coverage as excepted benefits — including possible revisions to the rules governing supplemental excepted benefits.
This guidance follows Executive Order (EO) 14216, Expanding Access to In Vitro Fertilization (IVF), issued in February 2025. The order directed the White House Domestic Policy Council (DPC) to recommend strategies to protect IVF access and reduce both health plan and out-of-pocket costs for fertility treatment. Among its recommendations: expanding opportunities for employers to offer fertility benefits as excepted benefits, which are exempt from certain Affordable Care Act (ACA) and HIPAA market reform requirements such as preventive care mandates, dollar-limit prohibitions, and health-status nondiscrimination rules.
Defining Excepted Benefits
Excepted benefits fall into several categories. The FAQs discuss how fertility coverage could fit within three of them:
1. Independent, Non-coordinated Benefits
These include insurance for a specific disease or condition, or hospital/fixed-indemnity coverage. To qualify as excepted:
- The benefit must be offered under a separate insurance policy.
- There can be no coordination with the employer’s primary health plan.
- Payments must be made regardless of whether benefits are provided under another group health plan.
Under current rules, an employer may offer insured fertility coverage as an independent, noncoordinated benefit — for example, a specified disease policy covering fertility-related conditions. Enrollment in the employer’s main health plan is not required. However, this option must be insured, not self-funded.
The Departments signaled that future rulemaking may allow self-funded fertility benefits as a new type of limited excepted benefit.
Individuals enrolled in a fertility policy structured this way can still contribute to a Health Savings Account (HSA), because coverage for a specified disease or illness is compatible with HSA eligibility under Internal Revenue Code §223.
2. Excepted Benefit Health Reimbursement Arrangements (HRAs)
HRAs can qualify as excepted benefits if:
- The employer also offers another group health plan that provides more than excepted benefits.
- The annual HRA limit does not exceed the inflation-adjusted cap ($2,150 for 2025).
- The HRA may reimburse certain health insurance premiums.
- It is offered uniformly to all similarly situated employees.
Under the FAQs, an employer can design an excepted benefit HRA to reimburse out-of-pocket fertility expenses (subject to the $2,150 limit for 2025). The HRA may be broad—covering all medical expenses—or limited solely to fertility-related care under Code §213(d).
3. Employee Assistance Programs (EAPs)
An EAP qualifies as an excepted benefit if it:
- Does not provide significant medical care;
- Does not coordinate with another health plan;
- Does not require employees to exhaust EAP benefits before using another plan;
- Requires no employee contributions or cost-sharing.
The FAQs clarify that an EAP offering coaching or navigation services related to fertility does not lose its excepted benefit status solely because of those services. However, the EAP cannot provide direct fertility treatment or other significant medical benefits.
Employers could structure benefits so that fertility procedures are covered under another arrangement (e.g., a specified disease policy or excepted benefit HRA), while the EAP focuses solely on coaching and navigation support.
Broader Context and Employer Impact
The FAQs and accompanying White House fact sheet confirm that employers can now design standalone fertility benefit programs, similar to how they offer vision, dental, or life coverage. Additional rulemaking is planned to remove barriers and expand the flexibility of limited excepted benefit designs.
Key Takeaways
- Fertility benefits can qualify as excepted benefits if structured correctly under current rules.
- Employers may:
- Offer insured fertility coverage as an independent, noncoordinated benefit.
- Provide excepted benefit HRAs reimbursing fertility expenses within annual limits.
- Include fertility coaching and navigation in an EAP without losing excepted status.
- The Departments plan to propose new rules that could allow additional, possibly self-funded, fertility benefit options.
Employers seeking to expand family-building support now have multiple compliant ways to offer fertility benefits outside traditional group health plans — with more flexibility likely on the horizon.