Recent guidance from the Department of Labor (DOL) clarifies how plans may offer coverage for fertility services as a freestanding benefit outside the requirements of the Affordable Care Act. DOL, along with the Departments of Health and Human Services and the Treasury, released the guidance as “Frequently Asked Questions about Affordable Care Act Implementation” on October 16, 2025. The FAQs were issued in response to Executive Order 14216, which requested policy recommendations to protect in vitro fertilization and led to a broader review of ways to expand access to fertility coverage.
As background, excepted benefits are a category of health coverage offered separately from medical coverage that are generally exempt from the requirements of the ACA, including the prohibition on lifetime and annual limits. Excepted benefits include standalone dental and vision insurance as well as “independent, noncoordinated excepted benefits,” a category that includes coverage for a specified disease or illness (such as cancer-only policies), as well as hospital or other fixed indemnity insurance.
The FAQs make clear that a plan may offer fertility benefits as an independent, noncoordinated excepted benefit, and thus be exempt from ACA requirements, if the following conditions are met: (1) the benefits are provided under a separate insurance policy; (2) there is no coordination between the independent benefit and any exclusion under a related group health plan; and (3) the benefits are payable without regard to whether benefits are provided for the same condition under a related group health plan.
The FAQs also clarify the following:
- Participants are not required to enroll in group health coverage to be eligible for an independent, noncoordinated fertility benefit.
- Because the exemption requires a separate contract of insurance, fertility coverage offered through a self-funded arrangement would not qualify, though presumably an otherwise self-funded plan could offer fertility benefits under a separate insurance policy and treat the fertility coverage as an excepted benefit.
- Enrollment in independent, noncoordinated fertility benefit coverage does not interfere with the participant’s ability to contribute to a health savings account (HSA) that is paired with a high-deductible health plan (HDHP).
- Fertility benefits may be offered through a health reimbursement arrangement (HRA) that meets the requirements of a limited excepted benefit. Specifically, excepted benefit HRAs may not reimburse more than $2,150 per year, may not be integrated with group health coverage, may not be used to reimburse health coverage premiums, and must be offered to all similarly-situated individuals.
- Finally, the FAQs clarify that an Employee Assistance Program (EAP), which is generally exempt from ACA requirements, may offer fertility-related coaching and navigator services, as long as the EAP does not provide significant benefits in the nature of medical care.
Please contact Slevin & Hart for more information about how this guidance affects your plan.
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